<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 5, 1998.
REGISTRATION NO. 333-61021
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
U.S. OFFICE PRODUCTS COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 5112 52-1906050
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
------------------------
1025 THOMAS JEFFERSON PLACE, N.W., SUITE 600E
WASHINGTON, D.C. 20007
(202) 339-6700
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
------------------------------
THOMAS MORGAN
CHIEF EXECUTIVE OFFICER
U.S. OFFICE PRODUCTS COMPANY
1025 THOMAS JEFFERSON PLACE, N.W., SUITE 600E
WASHINGTON, D.C. 20007
(202) 339-6700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
WITH A COPY TO:
<TABLE>
<S> <C>
GEORGE P. STAMAS, ESQ. MARK D. DIRECTOR, ESQ.
THOMAS W. WHITE, ESQ. Executive Vice President--Administration
Wilmer, Cutler & General Counsel and Secretary
Pickering U.S. Office Products Company
2445 M Street, N.W. 1025 Thomas Jefferson Street, N.W., Suite
Washington, D.C. 20037 600E
(202) 663-6000 Washington, D.C. 20007
(202) 339-6700
</TABLE>
------------------------
SEE TABLE OF ADDITIONAL REGISTRANTS
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after the effective date of this Registration
Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. /X/
(CALCULATION OF REGISTRATION FEE ON NEXT PAGE)
------------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF ADDITIONAL REGISTRANTS
<TABLE>
<CAPTION>
PRIMARY ADDRESS, INCLUDING ZIP
EXACT NAME OF STATE OR OTHER STANDARD CODE, AND TELEPHONE
REGISTRANT AS JURISDICTION OF INDUSTRIAL I.R.S. EMPLOYER NUMBER, INCLUDING AREA
SPECIFIED IN ITS INCORPORATION OR CLASSIFICATION IDENTIFICATION CODE, OR REGISTRANT'S
CHARTER ORGANIZATION CODE NUMBER NUMBER PRINCIPAL EXECUTIVE OFFICES
<S> <C> <C> <C> <C>
Action Wholesale Michigan 5112 38-1948793 4120 Brockton Drive SE
Service, Inc. Grand Rapids, MI 49512
616-698-1851
Affordable Interior Massachusetts 5021 04-3117869 4 Bonazzoli Avenue
Systems, Inc. Hudson, MA 01749
978-562-7500
American Loose Missouri 5112 43-0976837 4015 Papin Street
Leaf/Business St. Louis, MO 63110
Products, Inc. 314-535-1414
Andrews Office Washington DC 5112 52-0852962 8400 Ardwick Ardmore Road
Supply & Landover, MD 20785
Equipment Co. 800-394-1500
Bindery Systems, Oregon 5112 93-0976940 7737 Southwest Nimbus Ave.
Inc. Beavertown, OR 97008
503-646-8237
Bob Brines Office Michigan 5112 38-2134579 420 Cambridge Street
Supply Co. Midland, MI 48642
517-631-9771
Carithers-Wallace- Delaware 5021 52-1906050 4343 Northeast Expwy.
Courtenay, LLC Atlanta, GA 30340
770-493-8200
Carolina Office North Carolina 5112 56-0745125 2521 North Church Street
Equipment Rocky Mount, NC 27804
Company 919-977-1121
Central Texas Texas 5112 74-2367790 5310 Burnett Road
Office Products, Austin, TX 78756
Inc. 512-453-7345
Copenhaver Delaware 5112 52-1906050 9600 Parksouth Court
Holdings, LLC Orlando, FL 32837
407-857-7191
Courtland-Cain, Georgia 6719 58-0907647 4343 Northeast Expwy.
Inc. Atlanta, GA 30340
770-493-8200
Dameron-Pierson Louisiana 5021 72-0165110 5307 Toler Street
Company, Limited Harahan, LA 70123
504-736-0505
Dulworth Office Kentucky 5021 61-0853132 204-206 East Market Street
Furniture Company Louisville, KY 40202
502-587-6656
Expert Office Maryland 5112 52-1984574 8400 Ardwick Ardmore Road
Services, Inc. Landover, MD 20785
800-394-1500
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
PRIMARY ADDRESS, INCLUDING ZIP
EXACT NAME OF STATE OR OTHER STANDARD CODE, AND TELEPHONE
REGISTRANT AS JURISDICTION OF INDUSTRIAL I.R.S. EMPLOYER NUMBER, INCLUDING AREA
SPECIFIED IN ITS INCORPORATION OR CLASSIFICATION IDENTIFICATION CODE, OR REGISTRANT'S
CHARTER ORGANIZATION CODE NUMBER NUMBER PRINCIPAL EXECUTIVE OFFICES
<S> <C> <C> <C> <C>
Fort Smith Office Arkansas 5112 71-0329537 812 Garrison Avenue
Supply, Inc. Ft. Smith, AR 72901
501-782-0311
Forty-Fifteen Papin Missouri 5112 43-1888884 4015 Papin Street
Redevelopment St. Louis, MO 63110
Corporation 314-535-1414
General Office Minnesota 5112 41-0871157 2050 Old Highway 8
Products Company New Brighton, MN 55112
612-639-4700
Global Mailbox Florida 6794 65-0708096 6060 Cornerstone Court West
Express, LLC San Diego, CA 92121
619-455-8800
J.H. Whitley Co., Virginia 5112 54-1335623 11861 Canon Blvd.
Inc. Newport News, VA 23606
757-599-0000
Kentwood Office Michigan 5012 38-2935228 212 Grandville Ave. SW
Furniture, Inc. Grand Rapids, MI 49503
616-454-5572
Landmark Industries Delaware 5021 13-3910749 330 Madison Avenue
Inc. New York, NY 10017
212-687-5885
Mail Boxes, Etc. California 6794 33-0010260 6060 Cornerstone Court West
San Diego, CA 92121
619-455-8800
Mail Boxes, Etc., California 6794 95-3581095 6060 Cornerstone Court West
USA, Inc. San Diego, CA 92121
619-455-8800
McWhorter's, Inc. California 5112 94-2623280 621 Tully Road
San Jose, CA 95111
408-494-1200
Mile High Office Delaware 5112 52-1906050 60 Tejon Street
Supply, LLC Denver, CO 80223
303-744-6467
Mills Morris Tennessee 5112 62-1307529 3770 South Perkins Rd.
Business Products, Memphis, TN 38118
Inc. 901-362-8620
Modern Foods Indiana 5962 35-1452471 3910 Industrial Blvd.
Systems, Inc. Indianapolis, IN 46254
317-298-7000
Modern Vending, Indiana 5962 35-1281612 3910 Industrial Blvd.
Inc. Indianapolis, IN 46254
317-298-7000
Morris Office Mississippi 5112 64-0392096 325 Howard Street
Machines, Inc. Greenwood, MS 38935
601-453-7254
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
PRIMARY ADDRESS, INCLUDING ZIP
EXACT NAME OF STATE OR OTHER STANDARD CODE, AND TELEPHONE
REGISTRANT AS JURISDICTION OF INDUSTRIAL I.R.S. EMPLOYER NUMBER, INCLUDING AREA
SPECIFIED IN ITS INCORPORATION OR CLASSIFICATION IDENTIFICATION CODE, OR REGISTRANT'S
CHARTER ORGANIZATION CODE NUMBER NUMBER PRINCIPAL EXECUTIVE OFFICES
<S> <C> <C> <C> <C>
National Office Ohio 5112 34-0419960 183 West Market Street
Supply, Inc. Akron, OH 44303
330-376-8156
New Mexico Office New Mexico 5112 85-0348156 524-A Cordova Rd.
Solutions, Inc. Santa Fe, NM 87501
505-982-8811
Pear Commercial Colorado 5021 84-1075514 3655 Frontier Avenue
Interiors, Inc. Boulder, CO 80301
303-824-2000
Price Modern, Inc. Maryland 5021 52-0450440 2604 Sisson Street
Baltimore, MD 21211
510-366-5500
Radar Business Tennessee 5112 62-1112418 240 Great Circle Road
Systems, Inc. Nashville, TN 37228
615-244-4400
Rainen Business Missouri 5021 43-1004433 1330 Burlington North
Interiors, Inc. Kansas City, MO 64116
816-221-1355
Sagot Office New Jersey 5021 22-3251708 30 Twosome Drive
Interiors, Inc. Moorestown, NJ 08057
609-778-8833
Sletten Vending Wisconsin 5962 39-1245889 2605 S. Stoughton Rd.
Service, Inc. Madison, WI 53716
608-222-7080
Sturgis Acquisition Delaware 5112 74-2763962 1116 East Yandell Dr.
Corp. El Paso, TX 79902
915-533-8483
Sweitzer's Offset Indiana 5112 35-1278789 101 North 10th Street
Services, Inc. Noblesville, IN 46060
317-773-8454
Businessworks, Inc. Delaware 5112 64-0866621 4155 Industrial Drive
Jackson, MS 39209
601-948-2521
The H.H. West Delaware 5112 39-0698480 505 North 22nd Street
Company Milwaukee, WI 53233
414-344-1000
The J. Thayer Delaware 5112 52-1906050 12220 S.W. First Street
Company, LLC Beaverton, OR 97075
503-646-9191
The Office Furniture Ohio 5021 31-1084588 2920 East Kemper Road
Store, Inc. Cincinnati, OH 45241
513-771-3800
The Office Works, Pennsylvania 5112 23-2051543 601 Gibson Boulevard
Inc. Harrisburg, PA 17104
717-939-1381
</TABLE>
v
<PAGE>
<TABLE>
<CAPTION>
PRIMARY ADDRESS, INCLUDING ZIP
EXACT NAME OF STATE OR OTHER STANDARD CODE, AND TELEPHONE
REGISTRANT AS JURISDICTION OF INDUSTRIAL I.R.S. EMPLOYER NUMBER, INCLUDING AREA
SPECIFIED IN ITS INCORPORATION OR CLASSIFICATION IDENTIFICATION CODE, OR REGISTRANT'S
CHARTER ORGANIZATION CODE NUMBER NUMBER PRINCIPAL EXECUTIVE OFFICES
<S> <C> <C> <C> <C>
The Systems House, Illinois 7371 36-3128937 O'Hare Lake Office Park
Inc. Des Plaines, IL 60018
847-390-6300
USOP Merchandising Delaware 6719 52-1997750 2050 Old Highway 8
Company New Brighton, MN 55112
612-638-5760
U.S. Office Delaware 5021 52-2034226 c/o U.S. Office Products Company
Furniture, Inc. 3550 Patterson Avenue
Grand Rapids, MI 54912
616-957-2251
U.S. Office Delaware 5021 52-1997772 c/o U.S. Office Products Company
Furniture Rentals, 3550 Patterson Avenue
Inc. Grand Rapids, MI 54912
616-957-2251
U.S. Office Delaware 5112 38-0840050 2900 Dixie
Products Grandville, MI 49418
- --Great Lakes, Inc. 616-538-4009
U.S. Office Delaware 5112 52-1906050 800 East Irving Park Road
Products--Midwest, Bemsenville, IL 60106
LLC 630-860-0660
U.S. Office Delaware 5112 39-1844097 5225 Joerns Drive
Products of Stevens Point, WI 54481
Northern 715-345-2000
Wisconsin, Inc.
U.S. Office California 5112 95-3246958 19315 East San Jose Avenue
Products Southern City of Industry, CA 91748
California 626-965-8896
Vend-Rite Service Pennsylvania 5962 23-2014419 4060 Blanche Road
Corporation Bensalem, PA 19020
215-638-8800
Woburn Massachusetts 5962 04-3354991 11 Wheeling Avenue
Vending, Inc. Woburn, MA 01801
800-892-2330
USOPN, Inc. Delaware 5962 52-2123613 1025 Thomas Jefferson Place, N.W.
Suite 600E
Washington, D.C. 20007
202-339-6700
</TABLE>
vi
<PAGE>
P R O S P E C T U S
OFFER FOR ALL OUTSTANDING
9 3/4% SENIOR SUBORDINATED NOTES DUE 2008
IN EXCHANGE FOR
9 3/4% SENIOR SUBORDINATED NOTES DUE 2008
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OF
[LOGO]
The Exchange Offer and Withdrawal Rights will
expire at 5:00 p.m., New York City time,
on December 7, 1998 unless extended.
------------------------
U.S. Office Products Company (the "Company" or "USOP") hereby offers to
exchange up to $400,000,000 aggregate principal amount of the Company's 9 3/4%
Senior Subordinated Notes due 2008 (the "New Notes") for a like aggregate
principal amount of the Company's outstanding 9 3/4% Senior Subordinated Notes
due 2008 (the "Old Notes" and, with the New Notes, the "Notes"), of which
$400,000,000 in principal amount is outstanding. The terms of the New Notes will
be identical in all material respects to the respective terms of the Old Notes,
except that (i) the New Notes will have been registered under the Securities Act
of 1933 (the "Securities Act") and therefore will not be subject to certain
restrictions on transfer applicable to the Old Notes and (ii) the New Notes will
not be subject to an increase in interest payments thereon as a consequence of a
failure to take certain actions in connection with their registration under the
Securities Act. The offer is made upon the terms and subject to the conditions
set forth in this Prospectus (such Prospectus, as it may be amended or
supplemented from time to time, the "Prospectus") and in the accompanying Letter
of Transmittal (which together constitute the "Exchange Offer").
The New Notes will be general unsecured obligations of the Company and will
be subordinate and junior in right of payment to all existing and future Senior
Indebtedness (as defined herein) of the Company. The Company's obligations under
the Notes are fully and unconditionally guaranteed on an unsecured, senior
subordinated basis by (i) the Company's existing Domestic Subsidiaries (as
defined herein) which upon issuance of the Old Notes guaranteed the Company's
borrowings under the Credit Facility (as defined herein) and (ii) any future
Material Domestic Subsidiaries (as defined herein) that guarantee such
borrowings (the "Note Guarantors"). The Note Guarantees will be subordinated to
all existing and future Guarantor Senior Indebtedness (as defined herein),
including the Note Guarantors' obligations under the Credit Facility.
Interest on the New Notes will be payable semiannually in cash on June 15
and December 15 of each year. The Notes are redeemable at the option of the
Company, in whole or in part, at any time on and after June 15, 2003, at the
redemption prices set forth herein plus accrued interest. In addition, at any
time prior to June 15, 2001, the Company at its option may redeem up to 35% of
the original aggregate principal amount of the Notes with the proceeds of one or
more Equity Offerings (as defined herein), at a redemption price of 109.750% of
their principal amount plus accrued interest; provided that after any such
redemption at least 65% of the original aggregate principal amount of Notes
remains outstanding.
(CONTINUED ON NEXT PAGE)
SEE "RISK FACTORS" BEGINNING ON PAGE 17 FOR CERTAIN INFORMATION THAT SHOULD
BE CONSIDERED BY HOLDERS WHO TENDER OLD NOTES IN THE EXCHANGE OFFER.
-------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Date of this Prospectus is November 5, 1998.
<PAGE>
(CONTINUED FROM COVER PAGE)
The New Notes are being offered for exchange in order to satisfy certain
obligations of the Company under the Registration Rights Agreement dated June 5,
1998 ("Registration Rights Agreement") among the Company, Morgan Stanley & Co.
Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated, BT Alex. Brown
Incorporated and Chase Securities Inc. (the "Placement Agents"). In the event
the Exchange Offer is consummated, any Old Notes which remain outstanding after
consummation of the Exchange Offer and the New Notes issued in the Exchange
Offer will vote together as a single class for purposes of determining whether
holders of the requisite percentage of outstanding principal amount thereof have
taken certain actions or exercised certain rights under the Indenture (as
defined herein) governing the Notes.
The Company is making the Exchange Offer with respect to the New Notes in
reliance on the position of the staff of the Division of Corporation Finance
(the "Staff") of the Securities and Exchange Commission (the "Commission") as
set forth in certain interpretive letters addressed to parties in other
transactions. However, the Company has not sought its own interpretive letter
and there can be no assurance that the Staff would make a similar determination
with respect to the Exchange Offer as it has in such interpretive letters to
third parties. Based on these interpretations by the Staff, and subject to the
two immediately following sentences, the Company believes that New Notes issued
pursuant to this Exchange Offer in exchange for Old Notes may be offered for
resale, resold and otherwise transferred by a holder of such New Notes (other
than a holder who is a broker-dealer) without further compliance with the
registration and prospectus delivery requirements of the Securities Act,
provided that such New Notes are acquired in the ordinary course of such
holder's business and that such holder is not participating, and has no
arrangement or understanding with any person to participate, in a distribution
(within the meaning of the Securities Act) of such New Notes. However, any
holder of Old Notes who is an "affiliate" of the Company or who intends to
participate in the Exchange Offer for the purpose of distributing New Notes or
any broker-dealer who purchased Old Notes from the Company to resell pursuant to
Rule 144A under the Securities Act ("Rule 144A") or any other available
exemption under the Securities Act, (a) will not be able to rely on the
interpretations of the Staff set forth in the above-mentioned interpretive
letters, (b) will not be permitted or entitled to tender such Old Notes in the
Exchange Offer and (c) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any sale or other transfer
of such Old Notes unless such sale is made pursuant to an exemption from such
requirements. In addition, as described below, if any broker-dealer holds Old
Notes acquired for its own account as a result of market-making or other trading
activities and exchanges such Old Notes for New Notes, then such broker-dealer
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of such New Notes or any other New Notes received in
respect thereof.
Each holder of Old Notes who wishes to exchange Old Notes for New Notes in
the Exchange Offer will be required to represent that at the time of the
consummation of the Exchange Offer (i) it is not an "affiliate" of the Company
within the meaning of Rule 405 under the 1933 Act, (ii) any New Notes to be
received by it are being acquired in the ordinary course of its business, and
(iii) it has no arrangement or understanding with any person to participate in a
distribution (within the meaning of the Securities Act) of such New Notes. If
such holder is a broker-dealer that will receive New Notes for its own account
in exchange for Old Notes that were acquired by such broker-dealer as a result
of market-making activities or other trading activities, it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such New Notes. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
Based on the positions taken by the Staff in the interpretive letters
referred to above, the Company believes that broker-dealers who acquired Old
Notes for their own accounts, as a result of market-making activities or other
trading activities ("Participating Broker-Dealers") may fulfill their prospectus
delivery requirements with respect to the New Notes received upon exchange of
the Old Notes (other than Old
2
<PAGE>
Notes which represent an unsold allotment from the original sale of the Old
Notes ) with a prospectus meeting the requirements of the Securities Act, which
may be the prospectus prepared for an exchange offer so long as it contains a
description of the plan of distribution with respect to the resale of such New
Notes. Accordingly, this Prospectus, as it may be amended or supplemented from
time to time, may be used by a Participating Broker-Dealer during the period
referred to below in connection with resales of New Notes received in exchange
for Old Notes where such Old Notes were acquired by such Participating
Broker-Dealer for its own account as a result of market-making or other trading
activities. Subject to certain provisions set forth in the Registration Rights
Agreement, the Company has agreed that this Prospectus, as it may be amended or
supplemented from time to time, may be used by a Participating Broker-Dealer in
connection with resales of such New Notes for a period ending 90 days after the
last date of acceptance for the Exchange Offer. See "Plan of Distribution."
In that regard, each Participating Broker-Dealer who surrenders Old Notes
for its account pursuant to the Exchange Offer will be deemed to have agreed, by
execution of the Letter of Transmittal, that, upon receipt of notice from the
Company of the occurrence of any event or the discovery of any fact which makes
any statement contained or incorporated by reference in this Prospectus untrue
in any material respect or which causes this Prospectus to omit to state a
material fact necessary in order to make the statements contained or
incorporated by reference herein, in light of the circumstances under which they
were made, not misleading or of the occurrence of certain other events specified
in the Registration Rights Agreement, such Participating Broker-Dealer will
suspend the sale of New Notes pursuant to this Prospectus until the Company has
amended or supplemented this Prospectus to correct such misstatement or omission
and has furnished copies of the amended or supplemented Prospectus to such
Participating Broker-Dealer or the Company has given notice that the sale of the
New Notes may be resumed, as the case may be.
Any Old Notes not tendered and accepted in the Exchange Offer will remain
outstanding and will be entitled to all the same rights and will be subject to
the same limitations applicable thereto under the Indenture (except for those
rights that terminate upon consummation of the Exchange Offer). Following
consummation of the Exchange Offer, the holders of Old Notes will continue to be
subject to all of the existing restrictions upon transfer thereof and the
Company will not have any further obligation to such holders pursuant to the
Registration Rights Agreement to provide for registration under the Securities
Act of the Old Notes held by them. To the extent that Old Notes are tendered and
accepted in the Exchange Offer, a holder's ability to sell untendered Old Notes
could be adversely affected. See "Risk Factors-- Consequences of a Failure to
Exchange Old Notes."
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION. HOLDERS OF OLD NOTES ARE URGED TO READ THIS PROSPECTUS AND THE
RELATED LETTER OF TRANSMITTAL CAREFULLY BEFORE DECIDING WHETHER TO TENDER THEIR
OLD NOTES PURSUANT TO THE EXCHANGE OFFER.
Old Notes may be tendered for exchange on or prior to 5:00 p.m., New York
City time, on December 7, 1998 (such time on such date being hereinafter called
the "Expiration Date"), unless the Exchange Offer is extended by the Company (in
which case the term "Expiration Date" shall mean the latest date and time to
which the Exchange Offer is extended). Tenders of Old Notes may be withdrawn at
any time on or prior to the Expiration Date. The Exchange Offer is not
conditioned upon any minimum principal amount of Old Notes being tendered for
exchange. However, the Exchange Offer is subject to certain terms and provisions
of the Registration Rights Agreement. The Company has agreed to pay certain
expenses of the Exchange Offer. See "The Exchange Offer--Fees and Expenses."
This Prospectus, together with the Letter of Transmittal and Notice of
Guaranteed Delivery, is being sent to all registered holders of Old Notes as of
November 5, 1998.
3
<PAGE>
The Company will not receive any cash proceeds from the issuance of the New
Notes offered hereby. No dealer-manager is being used in connection with this
Exchange Offer. See "Use of Proceeds" and "Plan of Distribution."
The New Notes will be represented by a global certificate registered in the
name of a nominee of The Depository Trust Company ("DTC"). See "Description of
New Notes--Book Entry; Delivery and Form and The Depository Trust Company."
------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OF ANY SECURITIES
OTHER THAN THE SECURITIES TO WHICH IT RELATES OR AN OFFER TO ANY PERSON IN ANY
JURISDICTION WHERE SUCH OFFER WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF.
------------------------
4
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed by the Company with the Commission can be inspected and copied
at the public reference facilities maintained by the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
following regional offices of the Commission: 7 World Trade Center, Suite 1300,
New York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago,
Illinois 60621. Copies of such material may be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. at
prescribed rates. Such reports and other information can also be reviewed
through the Commission's Electronic Data Gathering, Analysis, and Retrieval
System ("EDGAR") which is publicly available though the Commission's World Wide
Web site (http:// www.sec.gov). In addition, the Company's Common Stock is
listed on the Nasdaq Stock Market's National Market System, and materials filed
by the Company can be inspected at the offices of the National Association of
Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
This Prospectus constitutes a part of a registration statement on Form S-4
(the "Registration Statement") filed by the Company with the Commission under
the Securities Act. As permitted by the rules and regulations of the Commission,
this Prospectus does not contain all the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission, and reference is hereby made to the
Registration Statement and to the exhibits relating thereto for further
information with respect to the Company and the New Notes. Any statements
contained herein concerning the provisions of any document are not necessarily
complete, and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by USOP pursuant to the
Exchange Act are incorporated by reference in this Prospectus:
1. USOP's Annual Report on Form 10-K for the year ended April 25, 1998,
filed with the Commission on July 23, 1998; and
2. USOP's Quarterly Report on Form 10-Q for the quarter ended July 25,
1998, filed with the Commission on September 8, 1998.
3. USOP's Current Reports on Form 8-K, filed with the Commission on
April 22, 1998, May 26, 1998, June 17, 1998, June 25, 1998, September 21,
1998 and September 22, 1998.
All documents filed by the Company pursuant to Sections 13(a) and (c), 14,
or 15(d) of the Exchange Act after the date hereof and prior to the termination
of the offering of the securities offered hereby shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
As used herein, the terms "Prospectus" and "herein" mean this Prospectus,
including the documents or portions thereof incorporated or deemed to be
incorporated herein by reference, as the same may be amended, supplemented or
otherwise modified from time to time. Statements contained in this Prospectus as
to the contents of any contract or other document referred to herein do not
purport to be complete, and
5
<PAGE>
where reference is made to the particular provisions of such contract or other
document, such provisions are qualified in all respects by reference to all of
the provisions of such contract or other document.
This Prospectus incorporates documents by reference which are not presented
herein or delivered herewith. These documents (excluding exhibits to the
information that is incorporated by reference unless such exhibits are
specifically incorporated by reference into the information that the prospectus
incorporates) are available without charge on request from
U.S. Office Products Company
1025 Thomas Jefferson Place, N.W., Suite 600E
Washington, D.C. 20007
Attn: Mark D. Director, Esq.
Kathleen M. Delaney, Esq.
Phone: (202) 339-6700
In order to ensure timely delivery of the documents, any request should be
made no later than five (5) business days prior to the Expiration Date.
6
<PAGE>
SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY, AND SHOULD BE READ IN
CONJUNCTION WITH, THE MORE DETAILED INFORMATION AND THE FINANCIAL STATEMENTS AND
RELATED NOTES THERETO APPEARING ELSEWHERE IN, OR INCORPORATED BY REFERENCE INTO,
THIS PROSPECTUS. UNLESS THE CONTEXT OTHERWISE REQUIRES, THE TERMS "U.S. OFFICE
PRODUCTS" OR THE "COMPANY" REFER TO U.S. OFFICE PRODUCTS COMPANY, A DELAWARE
CORPORATION, AND ITS SUBSIDIARIES AFTER GIVING EFFECT TO THE CONSUMMATION OF THE
COMPANY'S STRATEGIC RESTRUCTURING PLAN.
THIS PROSPECTUS (INCLUDING THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE)
CONTAINS FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS AND UNCERTAINTIES. WHEN
USED HEREIN, THE WORDS "ANTICIPATE," "BELIEVE," "ESTIMATE," "INTEND," "MAY,"
"WILL" AND "EXPECT" AND SIMILAR EXPRESSIONS AS THEY RELATE TO THE COMPANY OR ITS
MANAGEMENT ARE INTENDED TO IDENTIFY SUCH FORWARD-LOOKING STATEMENTS. THE
COMPANY'S ACTUAL RESULTS, PERFORMANCE OR ACHIEVEMENTS COULD DIFFER MATERIALLY
FROM THE RESULTS EXPRESSED IN, OR IMPLIED BY, THESE FORWARD-LOOKING STATEMENTS.
FACTORS THAT COULD CAUSE OR CONTRIBUTE TO SUCH DIFFERENCES INCLUDE THOSE
DISCUSSED IN "RISK FACTORS" BELOW AND IN "MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS" IN THE COMPANY'S ANNUAL REPORT
ON FORM 10-K. THE COMPANY DOES NOT UNDERTAKE ANY OBLIGATION TO REVISE THESE
FORWARD-LOOKING STATEMENTS TO REFLECT ANY FUTURE EVENTS OR CIRCUMSTANCES.
THE COMPANY
The Company is one of the world's leading suppliers of a broad range of
office products and business services to corporate customers. Through its North
American Office Products Group ("NAOPG"), the Company provides office supplies,
office furniture and office coffee, beverage and vending services primarily to
middle-market companies (25 to 500 employees). Based on current revenues, NAOPG
is one of the largest contract stationers in the United States. Outside North
America, the Company's Blue Star Group Limited ("Blue Star") is a leading
supplier of office products and services in New Zealand and Australia, and the
Company owns a 49% interest in Dudley Stationery Limited ("Dudley"), the second
largest contract stationer in the United Kingdom. With its November 1997
acquisition of Mail Boxes Etc. ("MBE"), the Company has expanded into the high
growth small office and home office ("SOHO") market. MBE is the world's largest
franchisor of local postal, packaging, business and communications service
centers with approximately 3,600 outlets worldwide.
Since its founding in October 1994, the Company has grown primarily through
an aggressive acquisition program, which has included the purchase of more than
230 businesses in the United States and internationally. The Company has focused
on acquiring successful, established companies with experienced management and
sales presence in specific geographic, product or service markets. It adheres to
a rigorous due diligence and financial review process in acquiring target
companies.
In addition, in June 1998, the Company completed a comprehensive
restructuring plan (the "Strategic Restructuring Plan") which consisted of a
number of elements including a self-tender offer (the "Equity Tender") by the
Company for its common stock, $.001 par value per share (the "Common Stock"),
distributions (the "Distributions") by the Company to its stockholders of shares
of common stock of four separate companies created to conduct the Company's
former technology solutions, print management, educational supplies and
corporate travel services businesses ("Spin-Off Companies"), and an equity
investment in the Company (the "Equity Investment") by an affiliate ("Investor")
of an investment fund managed by Clayton, Dubilier & Rice, Inc. In connection
with the Strategic Restructuring Plan, the Company also entered into several
financing transactions, including a new $1.225 billion senior credit facility
(the "Credit Facility") and the sale of $400.0 million in 9 3/4% Senior
Subordinated Notes (collectively, the "Financing Transactions").
The Company is now transitioning into a new stage of development, less
reliant on acquisitions and more focused on operational efficiencies, organic
growth and improved profit margins. To execute this new strategy, the Company is
implementing new product, sales and marketing programs to leverage its extensive
sales force and existing distribution channels. The Company is centralizing a
number of common
7
<PAGE>
business functions, such as purchasing, distribution, inventory management and
information systems. Furthermore, the Company is systematically consolidating
the operations of businesses located within the same geographic areas into
large, centrally-located regional warehouses known as district fulfillment
centers ("DFCs"). Through DFCs, the Company believes it can achieve greater
regional efficiencies and economies of scale in purchasing, distribution and
asset utilization. At the same time, the Company continues to encourage
entrepreneurial innovation and management of customer relationships at the local
level. The Company believes that its organizational structure combines the best
elements of both centralized and decentralized management for its business.
The Company is a Delaware corporation. Its executive offices are located at
1025 Thomas Jefferson Place, N.W., Suite 600 East, Washington, D.C. 20007, and
its telephone number is 202-339-6700.
THE EXCHANGE OFFER
<TABLE>
<S> <C>
GENERAL......................... The Old Notes were issued by the Company on June 10, 1998
to Morgan Stanley & Co. Incorporated, Merrill Lynch,
Pierce, Fenner & Smith Incorporated, BT Alex. Brown
Incorporated and Chase Securities Inc. (the "Placement
Agents"). The Placement Agents subsequently resold the Old
Notes in the United States to qualified institutional
buyers in reliance upon Rule 144A and, outside the United
States, to persons other than U.S. Persons. Up to
$400,000,000 aggregate principal amount of New Notes are
being offered in exchange for a like aggregate principal
amount of Old Notes. The Company will issue, promptly
after the Expiration Date, $1,000 principal amount of New
Notes in exchange for each $1,000 principal amount of
outstanding Old Notes tendered and accepted in connection
with the Exchange Offer. The Company is making the
Exchange Offer in order to satisfy obligations under the
Registration Rights Agreement. For a description of the
procedures for tendering Old Notes, see "The Exchange
Offer-- Procedures for Tendering Old Notes."
EXPIRATION DATE................. 5:00 p.m., New York City time, on December 7, 1998 (such
time on such date being hereinafter called the "Expiration
Date") unless the Exchange Offer is extended by the
Company (in which case the term "Expiration Date" shall
mean the latest date and time to which the Exchange Offer
is extended). See "The Exchange Offer--Expiration Date;
Extensions; Amendments."
CONDITIONS TO THE
EXCHANGE OFFER................ The Exchange Offer is not subject to any conditions other
than that the Exchange Offer does not violate applicable
law or any applicable interpretation of the Staff and is
not conditioned upon any minimum principal amount of the
Old Notes being tendered. See "The Exchange
Offer--Conditions to the Exchange Offer." The Company
reserves the right in its sole and absolute discretion,
subject to applicable law, at any time and from time to
time, (i) to delay the acceptance of the Old Notes for
exchange, (ii) to terminate the Exchange Offer (iii) to
extend the Expiration Date of the Exchange Offer and
retain all Old Notes tendered pursuant to the Exchange
Offer, subject, however, to the right of holders of Old
Notes to withdraw their tendered Old Notes, or (iv) to
waive any
</TABLE>
8
<PAGE>
<TABLE>
<S> <C>
condition or otherwise amend the terms of the Exchange
Offer in any respect. See "The Exchange Offer--Expiration
Date; Extensions; Amendments."
WITHDRAWAL RIGHTS............... Tenders of Old Notes may be withdrawn at any time on or
prior to the Expiration Date by delivering a written
notice of such withdrawal to State Street Bank and Trust
Company (the "Exchange Agent") in conformity with certain
procedures set forth below under "The Exchange
Offer--Withdrawal Rights."
PROCEDURES FOR TENDERING OLD
NOTES......................... Tendering holders of Old Notes must complete and sign a
Letter of Transmittal in accordance with the instructions
contained therein and forward the same by mail, facsimile
or hand delivery, together with any other required
documents, to the Exchange Agent, together with the Old
Notes to be tendered or in compliance with the specified
procedures for guaranteed delivery of Old Notes. Certain
brokers, dealers, commercial banks, trust companies and
other nominees may also effect tenders by book-entry
transfer. Holders of Old Notes registered in the name of a
broker, dealer, commercial bank, trust company or other
nominee are urged to contact such person promptly if they
wish to tender Old Notes pursuant to the Exchange Offer.
See "The Exchange Offer-- Procedures for Tendering Old
Notes." Letters of Transmittal and certificates
representing Old Notes should not be sent to the Company.
Such documents should only be sent to the Exchange Agent.
Questions regarding how to tender and requests for
information should be directed to the Exchange Agent. See
"The Exchange Offer--Exchange Agent."
RESALES OF NEW NOTES............ The Company is making the Exchange Offer in reliance on
the position of the Staff as set forth in certain
interpretive letters addressed to parties in other
transactions. However, the Company has not sought its own
interpretive letter and there can be no assurance that the
Staff would make a similar determination with respect to
the Exchange Offer as it has in such interpretive letters
to third parties. Based on these interpretations by the
Staff, and subject to the two immediately following
sentences, the Company believes that New Notes issued
pursuant to this Exchange Offer in exchange for Old Notes
may be offered for resale, resold and otherwise
transferred by a holder thereof (other than a holder who
is a broker-dealer) without further compliance with the
registration and prospectus delivery requirements of the
Securities Act, provided that such New Notes are acquired
in the ordinary course of such holder's business and that
such holder is not participating, and has no arrangement
or understanding with any person to participate, in a
distribution (within the meaning of the Securities Act) of
such New Notes. However, any holder of Old Notes who is an
"affiliate" of the Company or who intends to participate
in the Exchange Offer for the purpose of distributing the
New Notes, or any broker-dealer who purchased the Old
Notes from the Company to resell pursuant to Rule 144A or
any other available
</TABLE>
9
<PAGE>
<TABLE>
<S> <C>
exemption under the Securities Act, (a) will not be able
to rely on the interpretations of the Staff set forth in
the above-mentioned interpretive letters, (b) will not be
permitted or entitled to tender such Old Notes in the
Exchange Offer and (c) must comply with the registration
and prospectus delivery requirements of the Securities Act
in connection with any sale or other transfer of such Old
Notes unless such sale is made pursuant to an exemption
from such requirements. In addition, as described below,
if any broker-dealer holds Old Notes acquired for its own
account as a result of market-making or other trading
activities and exchanges such Old Notes for New Notes,
then such broker-dealer must deliver a prospectus meeting
the requirements of the Securities Act in connection with
any resales of such New Notes.
Each holder of Old Notes who wishes to exchange Old Notes
for New Notes in the Exchange Offer will be required to
represent that at the time of the consummation of the
Exchange Offer (i) it is not an "affiliate" of the Company
within the meaning of Rule 405 under the 1933 Act, (ii)
any New Notes to be received by it are being acquired in
the ordinary course of its business, and (iii) it has no
arrangement or understanding with any person to
participate in a distribution (within the meaning of the
Securities Act) of such New Notes.
Each broker-dealer that receives New Notes for its own
account pursuant to the Exchange Offer must acknowledge
that it acquired the Old Notes for its own account as a
result of market-making activities or other trading
activities and must agree that it will deliver a
prospectus meeting the requirements of the Securities Act
in connection with any resale of such New Notes. The
Letter of Transmittal states that by so acknowledging and
by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. Based on the position taken
by the Staff in the interpretive letters referred to
above, the Company believes that broker-dealers who
acquired Old Notes for their own accounts as a result of
market-making activities or other trading activities
("Participating Broker-Dealers") may fulfill their
prospectus delivery requirements with respect to the New
Notes received upon exchange of such Old Notes (other than
Old Notes which represent an unsold allotment from the
original sale of the Old Notes) with a prospectus meeting
the requirements of the Securities Act, which may be the
prospectus prepared for an exchange offer so long as it
contains a description of the plan of distribution with
respect to the resale of such New Notes. Accordingly, this
Prospectus, as it may be amended or supplemented from time
to time, may be used by a Participating Broker-Dealer in
connection with resales of New Notes received in exchange
for Old Notes where such Old Notes were acquired by such
Participating Broker-Dealer for its own account as a
result of market-making or other trading activities.
Subject to certain provisions set forth in the
Registration Rights Agreement and to the limitations
described below under "The
</TABLE>
10
<PAGE>
<TABLE>
<S> <C>
Exchange Offer--Resale of New Notes," the Company has
agreed that this Prospectus, as it may be amended or
supplemented from time to time, may be used by a
Participating Broker-Dealer in connection with resales of
such New Notes for a period ending 90 days after the
Registration Statement of which this Prospectus
constitutes a part is declared effective. See "Plan of
Distribution."
INTEREST........................ Holders of Old Notes whose Old Notes are accepted for
exchange will receive, in cash, accrued interest thereon
to, but not including, the date of issuance of the New
Notes. Such interest will be paid with the first interest
payments on the New Notes.
EXCHANGE AGENT.................. The Exchange Agent with respect to the Exchange Offer is
State Street Bank and Trust Company. The addresses, and
telephone and facsimile numbers of the Exchange Agent are
set forth in "The Exchange Offer--Exchange Agent" and in
the Letter of Transmittal.
USE OF PROCEEDS................. The Company will not receive any cash proceeds from the
issuance of the New Notes offered hereby. The net proceeds
from the placement of the Old Notes, which were
approximately $385.7 million, were used, together with the
proceeds of borrowings under the Credit Facility and the
proceeds of the Equity Investment, to refinance existing
debt, to pay the purchase price of the Equity Tender and
to pay other fees and expenses incurred in connection with
the Strategic Restructuring Plan and the Financing
Transactions. See "Use of Proceeds."
CERTAIN UNITED STATES FEDERAL
INCOME TAX CONSEQUENCES....... Holders of Old Notes should review the information set
forth under "Certain United States Federal Income Tax
Consequences" prior to tendering Old Notes in the Exchange
Offer.
</TABLE>
11
<PAGE>
THE NEW NOTES
<TABLE>
<S> <C>
Issuer.......................... U.S. Office Products Company
Notes Offered................... The terms of the New Notes will be identical in all
material respects to the Old Notes, except that the New
Notes will not contain terms with respect to transfer
restrictions and will not provide for increased interest
for certain future periods.
Maturity........................ June 15, 2008.
Interest........................ Payable semi-annually in cash, on June 15 and December 15
of each year, commencing December 15, 1998. For a
description of the requirement to exchange the Notes or
cause resales of the Notes to be registered under the
Securities Act and the possible effect on the interest
rate, see "Description of the Old Notes-- Registration
Rights."
Optional Redemption............. The Notes are redeemable, at the Company's option, in
whole or in part, at any time on or after June 15, 2003,
initially at 104.875% of their principal amount, plus
accrued interest, if any, to the redemption date,
declining ratably to 100% of their principal amount, plus
accrued interest, if any, to the redemption date, on or
after June 15, 2006. In addition, at any time prior to
June 15, 2001, the Company at its option may redeem up to
35% of the original principal amount of the Notes with the
proceeds from one or more Equity Offerings at a redemption
price of 109.750% of the principal amount of the Notes
plus accrued interest, if any, to the redemption date
provided that after any such redemption at least 65% of
the original aggregate principal amount of Notes remains
outstanding. See "Description of the New Notes--Optional
Redemption."
Change of Control............... Upon the occurrence of a Change of Control Triggering
Event (as defined herein), each holder of Notes will have
the right, subject to certain exceptions, to require the
Company to repurchase such holder's Notes at a purchase
price in cash equal to 101% of the principal amount
thereof, plus accrued interest, if any, to the date of
repurchase. At any time on or prior to June 15, 2003, the
Notes may also be redeemed in whole but not in part, at
the Company's option, upon the occurrence of a Change of
Control (as defined herein), at a price equal to 100% of
the principal amount thereof plus the Applicable Premium
(as defined herein) as of, and accrued interest, if any,
to, the date of redemption or purchase. There can be no
assurance that the Company will have sufficient funds
available when necessary to make any required repurchase.
See "Description of the New Notes--Certain
Covenants--Change of Control" and "--Optional Redemption."
Subsidiary Guarantees........... The Company's obligations under the Notes are fully and
unconditionally guaranteed on an unsecured, senior
subordinated basis by (i) the Company's existing Domestic
Subsidiaries (as defined herein) that upon issuance of the
Old Notes guaranteed the Company's borrowings under the
Credit Facility (as defined
</TABLE>
12
<PAGE>
<TABLE>
<S> <C>
herein) and (ii) other Material Domestic Subsidiaries (as
defined herein) that guarantee such borrowings (the "Note
Guarantors"). See "Description of the New Notes--Certain
Covenants--Future Note Guarantors." The Note Guarantees
will be subordinated to all existing and future Guarantor
Senior Indebtedness (as defined herein), including the
Note Guarantors' obligations under the Credit Facility.
Ranking......................... The Notes are unsecured, general obligations of the
Company, subordinated in right of payment to all existing
and future Senior Indebtedness of the Company. The Notes
rank PARI PASSU in right of payment with all other
existing and future Senior Subordinated Indebtedness (as
defined herein) of the Company, and will be senior in
right of payment to all future Subordinated Obligations
(as defined herein) of the Company. The Notes also will be
effectively subordinated to all secured indebtedness of
the Company to the extent of the value of the assets
securing such indebtedness. The Notes will be effectively
subordinated to all existing and future creditors
(including trade creditors) of the Company's subsidiaries
other than the Note Guarantors. As of July 25, 1998, the
aggregate amount of Senior Indebtedness was $785.0
million, all of which constituted Guarantor Senior
Indebtedness. In addition, at July 25, 1998, the Note
Guarantors had approximately $6.5 million of additional
Guarantor Senior Indebtedness and the Company's
Subsidiaries other than the Note Guarantors had
approximately $4.1 million of indebtedness outstanding.
See "Risk Factors--Substantial Indebtedness of the
Company; Ability to Service Debt," "--Subordination of
Notes and Note Guarantees," "--Structural Subordination"
and "Description of the New Notes--Ranking."
Certain Covenants............... The Indenture will contain certain covenants, including,
but not limited to, covenants with respect to: (i)
limitation on indebtedness; (ii) limitation on restricted
payments; (iii) limitation on dividends and other payment
restrictions affecting restricted subsidiaries; (iv)
limitation on asset dispositions; (v) limitation on
transactions with affiliates; (vi) limitation on liens;
and (vii) restrictions on mergers, consolidations and the
transfer of all or substantially all of the assets of the
Company to another person. However, these limitations will
be subject to a significant number of important
qualifications and exceptions. See "Description of the New
Notes--Certain Covenants."
Listing......................... The Notes have been designated eligible for trading on the
PORTAL Market. Application has been made to list the Notes
on the Luxembourg Stock Exchange.
Book-Entry; Delivery and Form... New Notes exchanged for Old Notes will be represented by
one or more permanent global New Notes in definitive,
fully registered form, deposited with a custodian for, and
registered in the name of a nominee of, The Depository
Trust Company ("DTC"). Beneficial interests in such
permanent global New Notes will be shown on,
</TABLE>
13
<PAGE>
<TABLE>
<S> <C>
and transfers thereof will be effected through, records
maintained by DTC and its participants.
Governing Law................... The Indenture and the Notes will be governed by the laws
of the State of New York.
Trustee and Registrar........... State Street Bank and Trust Company
Principal Paying Agent.......... State Street Bank and Trust Company
Paying Agent and Transfer Agent
in Luxembourg................. State Street Bank Luxembourg, S.A.
Listing Agent in Luxembourg..... Kredietbank, S.A. Luxembourgeoise
</TABLE>
RECENT DEVELOPMENTS
Stockholders purporting to represent a class composed of public stockholders
who purchased shares of U.S. Office Products between June 5, 1997 and September
2, 1998 have filed actions in the United States District Court for the Southern
District of New York. The actions name the Company, Jonathan Ledecky and Sands
Brothers & Co., Ltd. as defendants, and claim that the defendants made
misstatements, failed to disclose material information and otherwise violated
Sections 10(b) and 14 of the Securities Exchange Act of 1934 and Rule 10b-5 and
14a-9 thereunder in connection with the Strategic Restructuring Plan. The
complaints seek declaratory relief, unspecified money damages and attorneys
fees. The Company intends to vigorously contest these actions.
The Company has entered into tolling agreements with the sellers of two
businesses that the Company acquired in the fall of 1997 and that were spun off
in the Strategic Restructuring Plan. In addition, the Company has been advised
of the filing of a complaint by the sellers of a third business (which has not
been served). These disputes generally relate to events surrounding the
Company's Strategic Restructuring Plan. The Company believes that if claims are
asserted against the Company, some or all of such claims would be subject to
indemnification under the terms of the Distribution Agreement between the
Company and the Spin-Off Companies that was executed in connection with the
Strategic Restructuring Plan. The Company does not presently anticipate that
these situations will materially and adversely affect the Company.
RISK FACTORS
SEE "RISK FACTORS" IMMEDIATELY FOLLOWING THIS SUMMARY, FOR A DISCUSSION OF
CERTAIN FACTORS RELATING TO THE COMPANY, ITS BUSINESS AND AN INVESTMENT IN THE
NOTES.
14
<PAGE>
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
The following table sets forth selected financial data of the Company for
the five years ended April 25, 1998 and the three months ended July 26, 1997 and
July 25, 1998. The selected statement of operations data and selected statement
of cash flows data for the fiscal years ended April 30, 1996, April 26, 1997,
and April 25, 1998 and the selected balance sheet data as of April 26, 1997 and
April 25, 1998 have been derived from the Company's consolidated financial
statements that have been audited by PricewaterhouseCoopers LLP and that appear
in the Company's Annual Report on Form 10-K. The PricewaterhouseCoopers LLP
report on the financial statements is based in part on the reports of other
independent accountants, which appear in the Company's Annual Report on Form
10-K. The selected statement of operations data and selected statement of cash
flows data for the fiscal year ended April 30, 1995 and the selected balance
sheet data as of April 30, 1996 have been derived from the Company's
consolidated financial statements that have been audited by
PricewaterhouseCoopers LLP not included or incorporated elsewhere in this
Prospectus. The selected statement of operations data for the fiscal year ended
April 30, 1994, and the selected balance sheet data as of April 30, 1994 and
1995 have been derived from unaudited combined financial statements of the
Company not included or incorporated elsewhere in this Prospectus. The selected
statement of operations data and selected statement of cash flows data for the
three months ended July 26, 1997 and July 25, 1998 and the selected balance
sheet data as of July 25, 1998 have been derived from unaudited consolidated
financial statements of the Company, which appear in the Company's Quarterly
Report on Form 10-Q, which has been incorporated by reference into this
Prospectus.
FIVE YEAR SUMMARY OF SELECTED FINANCIAL DATA(1)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FISCAL YEAR ENDED THREE MONTHS ENDED
----------------------------------------------------- --------------------
APRIL 30, APRIL 30, APRIL 30, APRIL 26, APRIL 25, JULY 26, JULY 25,
1994 1995 1996 1997 1998 1997 1998
--------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues...................... $ 523,755 $ 658,494 $1,061,528 $2,115,954 $2,611,740 $ 614,814 $ 651,949
Cost of revenues.............. 377,494 485,955 789,436 1,518,287 1,884,892 444,032 474,285
--------- --------- --------- --------- --------- --------- ---------
Gross profit................ 146,261 172,539 272,092 597,667 726,848 170,782 177,664
Selling, general, and
administrative expenses..... 132,320 152,176 231,569 488,215 591,463 142,865 148,822
Amortization expense.......... 733 801 2,711 12,416 19,938 4,115 5,959
Non-recurring acquisition
costs....................... 8,057 8,001
Strategic Restructuring Plan
costs....................... 97,503
Operating Restructuring
costs....................... 682 4,201 6,187 8,726
--------- --------- --------- --------- --------- --------- ---------
Operating income............ 13,208 19,562 29,073 84,834 109,260 23,802 (83,346)
Interest expense.............. 2,519 3,401 8,132 36,047 37,837 8,467 18,888
Interest income............... (411) (675) (3,506) (6,857) (1,853) (582) (366)
Other income.................. (1,315) (1,456) (684) (4,233) (7,146) (1,383) (410)
--------- --------- --------- --------- --------- --------- ---------
Income (loss) from continuing
operations before provision
for (benefit from) income
taxes and extraordinary
items....................... 12,415 18,292 25,131 59,877 80,422 17,300 (101,458)
Provision for (benefit from)
income taxes................ 1,727 2,800 6,032 27,939 36,946 8,265 (17,915)
--------- --------- --------- --------- --------- --------- ---------
Income (loss) from continuing
operations before
extraordinary items......... 10,688 15,492 19,099 31,938 43,476 9,035 (83,453)
Income (loss) from
discontinued operations, net
of income taxes (2)......... 10,953 15,675 15,778 26,800 23,712 10,951 (1,294)
--------- --------- --------- --------- --------- --------- ---------
Income (loss) before
extraordinary items......... 21,641 31,167 34,877 58,738 67,188 19,986 (84,837)
Extraordinary items--losses on
early terminations of debt
instruments, net of income
taxes....................... 701 1,450 269
--------- --------- --------- --------- --------- --------- ---------
Net income (loss)............. $ 21,641 $ 31,167 $ 34,176 $ 57,288 $ 67,188 $ 19,986 $ (85,106)
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
</TABLE>
15
<PAGE>
<TABLE>
<CAPTION>
FISCAL YEAR ENDED THREE MONTHS ENDED
----------------------------------------------------- --------------------
APRIL 30, APRIL 30, APRIL 30, APRIL 26, APRIL 25, JULY 26, JULY 25,
1994 1995 1996 1997 1998 1997 1998
--------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Per share amounts(3):
Basic:
Income (loss) from
continuing operations
before extraordinary
items................... $ 0.97 $ 1.36 $ 1.13 $ 1.42 $ 1.45 $ 0.34 $ (2.38)
Income (loss) from
discontinued
operations.............. 0.99 1.38 0.93 1.19 0.80 0.41 (0.04)
Extraordinary items....... (0.04) (0.06) (0.01)
--------- --------- --------- --------- --------- --------- ---------
Net income (loss)......... $ 1.96 $ 2.74 $ 2.02 $ 2.55 $ 2.25 $ 0.75 $ (2.43)
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
Diluted:
Income (loss) from
continuing operations
before extraordinary
items................... $ 0.97 $ 1.36 $ 1.12 $ 1.39 $ 1.43 $ 0.33 $ (2.38)
Income (loss) from
discontinued
operations.............. 0.99 1.37 0.92 1.17 0.77 0.41 (0.04)
Extraordinary items....... (0.04) (0.06) (0.01)
--------- --------- --------- --------- --------- --------- ---------
Net income (loss)............. $ 1.96 $ 2.73 $ 2.00 $ 2.50 $ 2.20 $ 0.74 $ (2.43)
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
</TABLE>
<TABLE>
<CAPTION>
FISCAL YEAR ENDED THREE MONTHS ENDED
--------------------------------------------------------- ------------------------
APRIL 30, APRIL 30, APRIL 30, APRIL 26, APRIL 25, JULY 26, JULY 25,
1994 (4) 1995 1996 1997 1998 1997 1998
--------- --------- --------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF CASH FLOWS DATA:
EBITDA (5)......................... $ 26,083 $ 48,811 $ 133,138 $ 172,614 $ 37,296 $ 37,500
Net cash provided by (used in)
operating activities............. 7,741 19,246 15,812 83,562 25,821 (7,356)
Net cash used in investing
activities....................... (26,175) (120,061) (423,955) (150,389) (49,952) (25,535)
Net cash provided by financing
activities....................... 22,255 257,766 277,420 76,418 32,569 21,219
Net increase (decrease) in cash and
cash equivalents................. 7,190 158,537 (139,457) 7,995 6,008 (24,574)
--------- --------- ----------- ----------- ----------- -----------
--------- --------- ----------- ----------- ----------- -----------
OTHER INFORMATION:
Ratio of earnings to fixed charges
(6)(7)........................... 2.3x 2.5x 1.9x 2.0x 2.3x 2.2x
</TABLE>
<TABLE>
<CAPTION>
APRIL 30, APRIL 30, APRIL 30, APRIL 26, APRIL 25, JULY 25
1994 1995 1996 1997 1998 1998
--------- --------- ----------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working capital............................. $ 51,344 $ 70,153 $ 274,124 $ 233,986 $ 53,000 $ 389,746
Total assets................................ 172,656 259,904 805,978 1,711,873 2,541,427 2,037,012
Long-term debt, less current portion........ 15,112 18,841 176,230 380,209 382,174 1,200,016
Stockholders' equity........................ 77,735 128,512 394,746 921,148 1,486,131 515,248
--------- --------- ----------- --------- --------- ---------
--------- --------- ----------- --------- --------- ---------
</TABLE>
- ------------------------
(1) As a result of the completion of the Strategic Restructuring Plan in June
1998, the Company expects that future results will differ significantly from
historical results. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Introduction" that appears in the
Company's Annual Report on Form 10-K.
(2) The results of the Spin-Off Companies are reflected as discontinued
operations for all periods presented in the Company's consolidated statement
of operations.
(3) The per share amounts give effect to the one-for-four reverse stock split
completed by the Company in June 1998 in conjunction with the Strategic
Restructuring Plan.
(4) No statement of cash flows data has been provided for the fiscal year ended
April 30, 1994.
(5) EBITDA represents earnings before interest, income taxes, depreciation,
amortization, non-recurring acquisition costs, restructuring costs and
extraordinary items. EBITDA is provided because it is a measure commonly
used by analysts and investors to determine a company's ability to incur and
service its debt. EBITDA is not a measurement of performance under generally
accepted accounting principles ("GAAP") and should not be considered an
alternative to net income as a measure of performance or to cash flow as a
measure of liquidity. EBITDA is not necessarily comparable with similarly
titled measures for other companies.
(6) In computing the ratio of earnings to fixed charges: (i) earnings are based
on income from continuing operations before provision for income taxes and
extraordinary items and fixed charges; and (ii) fixed charges consist of
interest expense from continuing and discontinued operations, amortization
of deferred financing costs and the estimated interest component of rent
expense.
(7) As a result of the loss incurred during the three months ended July 25,
1998, the Company was unable to cover fixed charges by $101,458.
16
<PAGE>
RISK FACTORS
IN ADDITION TO REVIEWING THE OTHER INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS, HOLDERS OF THE OLD NOTES SHOULD REVIEW CAREFULLY
THE FOLLOWING RISKS CONCERNING THE NEW NOTES AND THE COMPANY BEFORE TENDERING
OLD NOTES FOR EXCHANGE.
SUBSTANTIAL INDEBTEDNESS OF THE COMPANY; ABILITY TO SERVICE DEBT
The Company incurred substantial indebtedness in connection with the
Strategic Restructuring Plan and related financing transactions and is highly
leveraged. As a result, the Company's total indebtedness at July 25, 1998 was
approximately $1,212.9 million. In addition, the Company has significant minimum
lease payments due in future years. The Credit Facility and the Indenture
governing the Notes each will permit the Company to incur additional
indebtedness subject to certain limitations.
The Company's high leverage could have material consequences to the Company,
including, but not limited to, the following: (i) the Company's ability to
obtain additional financing in the future for acquisitions, working capital,
capital expenditures, general corporate or other purposes may be impaired or any
such financing may not be available on terms favorable to the Company; (ii) a
substantial portion of the Company's cash flow will be required for debt service
and, as a result, will not be available for its operations and other purposes;
(iii) a substantial decrease in net operating cash flows or an increase in
expenses could make it difficult for the Company to meet its debt service
requirements or force it to modify its operations or sell assets; (iv) the
Company's ability to withstand competitive pressures may be limited; and (v) the
Company's level of indebtedness could make it more vulnerable to economic
downturns, and reduce its flexibility in responding to changing business and
economic conditions. In addition, the Company's borrowings under the Credit
Facility are and will continue to be at variable rates of interest, which
exposes the Company to the risk of increased interest rates. The Company's debt
under the Credit Facility and any of the Convertible Subordinated Notes that
remain outstanding and that have not been exchanged for Common Stock or
purchased, will mature prior to the maturity date of the Notes. If the Company
is unable to service its indebtedness, it may be forced to pursue one or more
alternative strategies, such as selling assets, restructuring or refinancing its
indebtedness, or seeking additional equity capital. The Company's management
does not have experience to date operating a business with a substantial amount
of leverage.
Historically, the Company has funded its capital requirements by debt
financings and the sale of Common Stock. Future sales of Common Stock may be
subject to limitations on the number of shares the Company can issue without
jeopardizing the tax-free treatment of the Distributions. See "--Potential
Limitations on Stock Issuances." In addition, the agreements relating to the
Credit Facility and the Indenture governing the Notes are expected to contain
restrictions on the incurrence of additional indebtedness. See "--Restrictions
Imposed by Terms of the Credit Facility" and "--Potential Liability for Taxes
Related to the Distributions." The Company anticipates making capital
expenditures of approximately $40.0 million in both fiscal 1999 and fiscal 2000,
primarily to support the Company's DFC program, computer system upgrades, and
maintenance of the Company's existing infrastructure. For the twelve months
ended July 25, 1998, on a pro forma basis, the Company's EBITDA (including the
Company's interest in the net income of Dudley) and interest expense would have
been $187,228 million and $111,255 million, respectively. The Company believes
that borrowings under the Credit Facility and cash flow from operations will be
sufficient to fund the Company's planned capital expenditures and working
capital and debt service requirements. The Company may require additional
financing for future acquisitions and for further expansion of its operations.
See "Business--Business Strategies." No assurance can be given that, in the
event the Company were to require additional financing, such additional
financing would be available on terms permitted by agreements relating to then
existing indebtedness or otherwise satisfactory to the Company. Failure to
obtain such financing could result in delays or abandonment of some or all of
the Company's plans, which could limit the ability of the Company to meet its
debt service obligations (including obligations with respect to the Notes) and
could have a material adverse effect on its business.
17
<PAGE>
The ability of the Company to meet its debt service and other obligations
(including compliance with financial covenants) will be dependent upon the
future performance of the Company and its cash flow from operations, which will
be subject to prevailing economic conditions and financial, business and other
factors, certain of which are beyond the Company's control. These factors could
include general economic conditions, operating difficulties, increased operating
costs, product pricing pressures, potential revenue instability arising from
cost savings initiatives or otherwise, labor relations, the response of
competitors or customers to the Company's business strategy or projects and
delays in implementation of the Company's business strategy.
SUBORDINATION OF NOTES AND NOTE GUARANTEES
The Notes will be unsecured, senior subordinated obligations of the Company.
The Notes will be subordinated in right of payment to all existing and future
Senior Indebtedness of the Company, including all indebtedness under the Credit
Facility. The Notes will rank PARI PASSU with all Senior Subordinated
Indebtedness of the Company, if any (including ranking equally, as to
indebtedness under the Credit Facility, with any Convertible Subordinated Notes
that are not exchanged or purchased), and will rank senior to all Subordinated
Obligations (as defined herein) of the Company, if any. The Notes also will be
effectively subordinated to all secured indebtedness of the Company to the
extent of the value of the assets securing such indebtedness. By reason of such
subordination, in the event of the insolvency, liquidation or other
reorganization of the Company, the Senior Indebtedness must be paid in full
before the principal of, premium, if any, or interest on the Notes may be paid.
In addition, the obligations of the Company under the Credit Facility will be
secured by substantially all of the assets of the Company and its domestic
subsidiaries, including the capital stock of the domestic subsidiaries of the
Company. If the Company becomes insolvent or is liquidated or if payment under
the Credit Facility is accelerated, the lenders under the Credit Facility would
be entitled to exercise the remedies available to a secured lender under
applicable law and pursuant to instruments governing such indebtedness.
Accordingly, such lenders will have a prior claim on the Company's assets. In
any such event, because the Notes will not be secured by any of the Company's
assets, it is possible that there would be no assets remaining from which claims
of the holders of such Notes could be satisfied, or, if any assets remained,
such assets might be insufficient to satisfy such claims fully.
In the event of a default in the payment of any Senior Indebtedness, the
Company may not pay the principal of, premium, if any, or interest on the Notes
unless and until such default has been cured or waived. In the event of any
other default permitting the acceleration of Designated Senior Indebtedness (as
defined herein), including indebtedness under the Credit Facility, where notice
of such default has been given to the Company, the Company may not make any
payment with respect to the Notes for 179 days or, if earlier, unless and until
such default has been cured or waived. Upon any payment or distribution of
assets of the Company upon a total or partial liquidation, dissolution,
reorganization or similar proceeding, the holders of Senior Indebtedness will be
entitled to receive payment in full before the holders of the Notes or other
Senior Subordinated Indebtedness are entitled to receive any payment. See
"Description of the New Notes--Ranking." The Company will also be permitted to
issue additional Senior Indebtedness and Senior Subordinated Indebtedness under
the Indenture.
Each Note Guarantee (as defined herein) will be an unsecured, senior
subordinated obligation of the relevant Note Guarantor. The obligations of each
Note Guarantor under its Note Guarantee will be (i) subordinated in right of
payment to all existing and future Guarantor Senior Indebtedness of such Note
Guarantor, including the Note Guarantor's obligations under or relating to the
Credit Facility, (ii) PARI PASSU in right of payment with all Guarantor Senior
Subordinated Indebtedness (as defined herein) of such Note Guarantor, if any,
and (iii) senior in right of payment to all Guarantor Subordinated Obligations
(as defined herein), if any, of such Note Guarantor. The Note Guarantee of each
Note Guarantor will also be effectively subordinated to all secured indebtedness
of such Note Guarantor to the extent of the value of the assets securing such
indebtedness. The terms on which each Note Guarantee will be subordinated to the
prior payment in full of Guarantor Senior Indebtedness will be substantially
identical to those
18
<PAGE>
described herein governing the subordination of the Notes to the prior payment
in full of Senior Indebtedness.
As of July 25, 1998, the aggregate amount of Senior Indebtedness was $785.0
million, all of which constituted Guarantor Senior Indebtedness. In addition, at
July 25, 1998, the Note Guarantors had approximately $6.5 million of additional
Guarantor Senior Indebtedness and the Company's Subsidiaries other than the Note
Guarantors had approximately $4.1 million of indebtedness outstanding.
STRUCTURAL SUBORDINATION
The Company conducts substantially all of its operations through various
direct and indirect subsidiaries and therefore may be dependent in part on
dividends or other distributions of funds from its subsidiaries to meet its debt
service and other obligations, including obligations under the Credit Facility
and the Notes. The rights of holders of the Notes to participate in the
distribution of the assets of any subsidiary (other than a Note Guarantor) upon
such subsidiary's liquidation or reorganization will be subject to the prior
claims of such subsidiary's creditors, including trade creditors.
RESTRICTIONS IMPOSED BY TERMS OF THE CREDIT FACILITY
The Credit Facility will impose significant operating and financial
restrictions on the Company. Such restrictions will affect, and in many respects
significantly limit or prohibit, among other things, the ability of the Company
to incur additional indebtedness and certain types of indebtedness, create
liens, engage in transactions with stockholders and affiliates, sell assets,
issue capital stock of subsidiaries or engage in mergers or acquisitions. In
addition, the Credit Facility requires that the Company maintain certain
financial ratios. These restrictions could also limit the ability of the Company
to effect future financings, make needed capital expenditures, withstand a
future downturn in the Company's business or the economy in general, or
otherwise conduct necessary corporate activities.
The Company's ability to comply with the covenants and restrictions
contained in the Credit Facility may be affected by events beyond its control,
including prevailing economic, financial and industry conditions. There can be
no assurance that the Company will be able to comply with such covenants or
restrictions in the future. Failure by the Company or its subsidiaries to comply
with these restrictions could lead to a default under the terms of such
indebtedness, notwithstanding the ability of the Company to meet its payment
obligations, and could lead to termination of the commitments of the lenders to
make further extensions of revolving credit under the Credit Facility. In the
event of a default, the holders of such indebtedness could elect to declare all
such indebtedness to be due and payable, together with accrued and unpaid
interest. In such event, a significant portion of the Company's other
indebtedness (including the Notes) may become immediately due and payable and
there can be no assurance that the Company would be able to make such payments
or borrow sufficient funds from alternative sources to make any such payment.
Even if additional financing could be obtained, there can be no assurance that
it would be on terms that are acceptable to the Company. In addition, the pledge
of substantially all of the Company's assets as collateral under the Credit
Facility could impair the Company's ability to obtain financing on terms
favorable to the Company. If the Company were unable to repay its indebtedness
to the lenders under the Credit Facility, such lenders could proceed against the
collateral securing such indebtedness, including substantially all of the
Company's assets, and the Company could be prohibited from making any payments
on the Notes. The Indenture will also contain a number of restrictive covenants
relating to the Company. See "Description of the New Notes."
RISKS RELATED TO CHANGE IN STRATEGIC FOCUS AND BUSINESS AND GROWTH STRATEGIES
The Company was founded in October 1994 and conducted no operations prior to
the acquisition of its founding companies in February 1995. Since that time, the
Company has grown primarily through an aggressive acquisition strategy. The
Company is now transitioning into a new stage of development, less reliant on
acquisitions and more focused on operational efficiencies, organic growth and
improved profit margins. The Company's ability to achieve these objectives will
depend on a number of factors, including
19
<PAGE>
its generation of increased revenues and margins in existing businesses through,
among other things, expansion into new markets and additional "cross selling"
activities; ability to continue to integrate existing operations and new
acquisitions without substantial delays or other problems; and achievement of
operating improvements and cost reductions, such as volume purchasing
arrangements, consolidation of general and administrative functions and
elimination of redundant facilities, and improvement of technology and operating
and distribution systems. In particular, the Company's ability to achieve
operating improvements will depend on successful implementation of its plans to
establish DFCs in the United States. There can be no assurance that these
efforts to achieve operating improvements will be successful or will result in
anticipated levels of cost savings and efficiencies or growth in revenues and
margins.
CHALLENGES OF BUSINESS INTEGRATION; RISKS RELATED TO ACQUISITIONS
Historically, the Company has grown substantially through acquisitions. The
Company's aggressive acquisition program has produced a significant increase in
revenues, employees, facilities and distribution systems. While the Company's
decentralized management strategy, together with operating efficiencies
resulting from the elimination of duplicative functions and economies of scale,
may present opportunities to reduce costs, such strategies may initially require
additional costs and expenditures to expand operational and financial systems
and corporate management administration. Because of the various costs and
possible cost-savings strategies, historical operating results may not be
indicative of future performance. There also can be no assurance that the pace
of the Company's acquisitions will not adversely affect efforts to implement
cost-savings and integration strategies and to manage operations and
acquisitions profitably. Additionally, attempts to achieve economies of scale
through cost cutting and lay-offs of existing personnel may, at least in the
short term, have an adverse impact upon the Company. Delays in implementing
planned integration and consolidation strategies, or the failure of such
strategies to achieve anticipated cost savings, also could adversely affect the
Company's results of operations and financial condition. In addition, there can
be no assurance that the Company's management and financial controls, personnel,
computer systems and other corporate support systems will be adequate to manage
the increasing size and scope of its operations and its continuing acquisition
activity.
The Company intends to pursue selected acquisition opportunities; however,
no assurance can be given that the Company will identify, finance and complete
additional suitable acquisitions on acceptable terms, or that future
acquisitions, if completed, will be successful. The Company will likely incur
additional debt to finance any additional acquisitions. In addition, acquired
companies may not achieve future revenues and profitability levels that justify
the prices that the Company paid to acquire them. Acquisitions also may involve
a number of risks that could have a material adverse effect on future operations
and financial performance, including diversion of management's attention;
unanticipated declines in revenues or profitability following acquisitions;
difficulties with the retention, hiring and training of key personnel; risks
associated with unanticipated business problems or legal liabilities; and the
amortization of acquired intangible assets, such as goodwill.
HIGHLY COMPETITIVE MARKETS
The Company operates in a highly competitive environment. It generally
competes with a large number of smaller, independent companies, many of which
are well-established in their markets. In addition, in the United States, the
NAOPG competes with five large office products companies, each of which may have
greater financial resources than the Company. Several of the Company's large
competitors operate in many of its geographic and product markets, and other
competitors may choose to enter its geographic and product markets in the
future. In addition, as a result of this competition, the Company may lose
customers or have difficulty acquiring new customers. As a result of competitive
pressures in the pricing of products, the Company's revenues or margins may
decline. The highly leveraged nature of the Company after the transactions
related to the Strategic Restructuring Plan and the Financing Transactions could
limit the Company's ability to continue to make necessary or desirable
investments or capital expenditures to compete effectively and to respond to
market conditions.
20
<PAGE>
The Company faces significant competition to acquire additional businesses
as the office products industry undergoes continuing consolidation. Competition
is expected to increase in the domestic and international markets that the
Company serves or is planning to enter as consolidation occurs (or accelerates)
in those markets. A number of the Company's major competitors are actively
pursuing acquisitions on a global basis.
FOREIGN OPERATIONS; EXCHANGE RATE FLUCTUATIONS
Management intends to continue to focus significant attention and resources
on international operations and expects foreign revenues to continue to
represent a significant portion of the Company's total revenues. The factors
described in this "Risk Factors" section that apply to the Company's domestic
operations generally may also affect the Company's foreign operations. In
addition, the Company's foreign operations are subject to a number of other
risks, including fluctuations in currency exchange rates; new and different
legal and regulatory requirements in local jurisdictions; tariffs and trade
barriers; potential difficulties in staffing and managing local operations;
credit risk of local customers and distributors; potential difficulties in
protecting intellectual property; potential imposition of restrictions on
investments; potentially adverse tax consequences, including imposition or
increase of withholding and other taxes on remittances and other payments by
subsidiaries; and local economic, political and social conditions, including the
possibility of hyper-inflationary conditions, in certain countries. There can be
no assurance that one or a combination of these factors will not have a material
adverse impact on the Company's ability to maintain or increase its foreign
revenues or on its business, financial condition or results of operations.
Over 33% of consolidated revenues for the fiscal year ended April 25, 1998
were generated from the Company's international operations and are denominated
in currencies other than United States dollars. The Company's results of
operations have been and may continue to be impacted by the translation of the
international operations' functional currencies into United States dollars.
Devaluation has adversely affected the return on the Company's investment in its
New Zealand and Australian operations. If exchange rates stabilize at current
rates or continue to decline, the Company's return on assets and equity from its
New Zealand and Australian operations will continue to be depressed. The Company
expects that it will incur additional costs with respect to accessing cash flows
from international operations, including such items as New Zealand and
Australian withholding taxes and other taxes and foreign currency hedging costs.
In addition, the Company's results of operations could be further impacted by
fluctuations in the New Zealand and Australian exchange rates as a result of the
structure of certain financing alternatives currently being evaluated by the
Company.
Substantially all of the Company's indebtedness is denominated in U.S.
dollars. As a result, declines in the value of the currencies in which the
Company's revenues from international operations are generated relative to the
value of the U.S. dollar may materially adversely affect the Company's business,
financial condition and results of operations and the ability of the Company to
meet its obligations under the Notes.
RISKS RELATING TO DEPENDENCE OF MAIL BOXES ETC. ON BUSINESS OF UPS AND FRANCHISE
RELATIONSHIPS
Various factors may affect MBE's business. The United Parcel Service ("UPS")
is a key vendor for MBE. The Company estimates that a significant percentage of
the gross revenues of a typical MBE retail center in the United States is
attributable to services provided by UPS. If UPS were to raise its prices to MBE
or otherwise materially adversely change the terms on which it provides shipping
services for MBE retail centers or if UPS cannot provide service or provides
limited services as it did during a 1997 strike by its employees, the revenues
of MBE could be materially and adversely affected. MBE conducts its business
principally through franchisees or licensees, with the result that MBE has
limited control over franchisee operations and is subject to significant
government regulation of its legal relationships with franchisees that limits
the control that MBE has over its franchisees. MBE also faces growing
competition from the United States Postal Service as it establishes postal
service centers located in shopping centers and other locations to compete
against MBE and other similar retail service centers.
21
<PAGE>
RELIANCE ON KEY PERSONNEL
The Company's operations will depend on the continued efforts of its senior
executive officers, including Thomas Morgan, President and Chief Executive
Officer, and the senior management of certain of its subsidiaries. If any of
these individuals becomes unable to continue in his or her present role, or if
the Company is unable to attract and retain other skilled employees, its
business could be adversely affected. The Company intends to obtain key person
life insurance covering Thomas Morgan, but does not intend to obtain key person
life insurance covering any other members of senior management.
INTANGIBLE ASSETS
As of July 25, 1998, approximately $903.3 million, or 44.3% of the Company's
total assets, represented intangible assets, the substantial majority of which
was goodwill. As a result, a substantial portion of the value of the Company's
assets may not be available to repay creditors in the event of a bankruptcy or
dissolution of the Company. As a result of the Equity Tender Offer and the
Distributions, the Company will be precluded from completing business
combinations under the pooling-of-interests accounting method for a period of up
to nine months. Any business combinations that the Company completes during this
period will have to be accounted for under the purchase method. As a result, the
amount of goodwill reflected on the Company's balance sheet will increase to the
extent that the Company acquires additional companies under the purchase method
of accounting.
ABILITY OF INVESTOR TO INFLUENCE MANAGEMENT
As part of the Strategic Restructuring Plan, Investor acquired shares
amounting to 24.9% of the outstanding shares of the Common Stock after giving
effect to the Equity Tender Offer and to the issuance of such shares. Investor
also acquired various warrants that give it the right to acquire additional
shares of Common Stock in the future that in certain circumstances could
increase its ownership to as much as 39.9% of the Common Stock (if no currently
outstanding stock options are exercised). Investor has, among other things, the
right (subject to certain conditions) to nominate three of the nine members of
the Company's Board of Directors (the "Board"), including the Chairman of the
Board. Investor will retain this right until Investor's level of ownership of
Common Stock declines by more than one-third. In addition, certain Board
decisions are subject to super-majority voting provisions that, in certain
circumstances, may require the concurrence of at least one director nominated by
Investor. The super-majority voting provisions require the affirmative vote of
three-fourths of the Board for certain decisions such as the sale of certain
equity securities; any merger, tender offer involving the Company's equity
securities or sale, lease or disposition of all or substantially all of the
Company's assets or other business combination involving the Company; any
dissolution or partial liquidation of the Company; and certain changes to the
Company's charter and by-laws. These super-majority Board voting requirements
may give Investor the ability to block the approval of certain actions requiring
the super-majority vote of the Board. In addition, Investor's significant
ownership of the Common Stock may permit Investor to influence significantly
matters requiring the approval of the Company's stockholders.
POTENTIAL LIABILITY FOR CERTAIN LIABILITIES OF THE SPIN-OFF COMPANIES
As part of the Strategic Restructuring Plan, the Spin-Off Companies agreed
to indemnify the Company for certain liabilities that the Company could incur
relating to the Distributions, the operations of the Spin-Off Companies and
other matters. There can be no assurance that the Spin-Off Companies will be
able to satisfy any such indemnities, and the Company may therefore incur such
liability even if it arose out of the activities of the Spin-Off Companies. If
in the future the Spin-Off Companies are unable to satisfy these obligations,
the Company and its ability to meet its obligations on the Notes could be
adversely affected. In addition, the Company will indemnify Investor and its
affiliates against losses resulting from any of the Spin-Off Companies failing
to satisfy their obligations to the Company.
22
<PAGE>
POTENTIAL LIABILITY FOR TAXES RELATED TO THE DISTRIBUTIONS
Wilmer, Cutler & Pickering delivered an opinion (the "Spin-Off Opinion")
stating that for U.S. federal income tax purposes, the Distributions qualify as
tax-free spin-offs under Section 355 of the Internal Revenue Code of 1986, as
amended (the "Code"), and are not taxable under Section 355(e) of the Code. The
Spin-Off Opinion is based on the accuracy as of the time of the Distributions of
factual representations made by the Company, the Spin-Off Companies and
Investor, and certain other information, data, documentation and other materials
that Wilmer, Cutler & Pickering deemed necessary.
The Spin-Off Opinion represents Wilmer, Cutler & Pickering's best judgment
of how a court would rule. However, the Spin-Off Opinion is not binding upon
either the Internal Revenue Service ("IRS") or any court. A ruling has not been,
and will not be, sought from the IRS with respect to the U.S. federal income tax
consequences of the Distributions. Accordingly, the IRS and/or a court could
reach a conclusion that differs from the conclusions in the Spin-Off Opinion.
If a Distribution failed to qualify as a tax-free spin-off under Section 355
or were taxable under Section 355(e), the Company would recognize gain equal to
the difference between the fair market value of the Spin-Off Company's common
stock on the effective date of the Distribution (the "Distribution Date") and
the Company's adjusted tax basis in the Spin-Off Company's common stock on the
Distribution Date. If the Company were to recognize gain on one or more
Distributions, such gain would likely be substantial.
POTENTIAL LIMITATIONS ON STOCK ISSUANCES
Certain limitations under Section 355 of the Code may restrict the Company's
ability to issue capital stock after the Distributions. These limitations will
generally prevent the Company from issuing capital stock to the extent the
issuance is part of a plan or series of related transactions that includes one
or more of the Distributions and pursuant to which one or more persons acquire
capital stock of the Company that represents 50% or more of the voting power or
50% or more of the value of the Company's capital stock. These limitations may
restrict the Company's ability to undertake transactions involving issuances of
capital stock of the Company that management otherwise believes would be
beneficial.
FRAUDULENT TRANSFER CONSIDERATIONS
The incurrence of indebtedness by the Company and the Note Guarantors, such
as the Notes and the Note Guarantees, may be subject to review under federal or
state fraudulent transfer laws in the event that the Company or any Note
Guarantor is the subject of a bankruptcy filing or lawsuit commenced by or on
behalf of unpaid creditors of the Company or such Note Guarantor. Under such
laws, if a court in a lawsuit by a creditor or a representative of creditors of
the Company or any Note Guarantor, such as a trustee in bankruptcy, were to find
that, at the time the Company or such Note Guarantor incurred indebtedness,
including indebtedness under the Notes or the relevant Note Guarantee, the
Company or such Note Guarantor (i) was insolvent or rendered insolvent thereby,
(ii) was engaged in a business or transaction for which its remaining assets
constituted an unreasonably small amount of capital, (iii) intended to incur, or
believed that it would incur, debts beyond its ability to pay as they matured,
or (iv) intended to hinder, delay or defraud current or future creditors and, in
the case of clauses (i), (ii) and (iii), that the Company or such Note Guarantor
did not receive reasonably equivalent value or fair consideration for incurring
such indebtedness, such court could avoid or subordinate the amounts owing under
the Notes or the relevant Note Guarantee to presently existing and future
indebtedness of the Company or such Note Guarantor and take other actions
detrimental to the Holders of the Notes.
If a court were to find that the Company or such Note Guarantor came within
any of clauses (i) through (iv) above, the Company or such Note Guarantor, or
its creditors or the trustee in bankruptcy, could seek to avoid the grant of
security interests to the lenders under the Credit Facility. This would result
in an event of default with respect to indebtedness incurred under the Credit
Facility which, under the
23
<PAGE>
terms of such indebtedness (subject to applicable law), would allow the lenders
to terminate their obligations thereunder and to accelerate payment of such
indebtedness.
The measure of insolvency for purposes of the foregoing will vary depending
upon the law of the jurisdiction which is being applied. Generally, however, a
company would be considered insolvent for purposes of the foregoing if, at the
time it incurred the indebtedness, (i) the sum of such company's debts including
contingent liabilities is greater than all such company's property at a fair
valuation, (ii) the present fair saleable value of such company's assets is less
than the amount that will be required to pay its probable liability on its
existing debts and liabilities (including contingent liabilities) as they become
absolute and matured or (iii) the company incurred obligations beyond its
ability to pay as such obligations become due. There can be no assurance as to
what standards a court would use to determine whether the Company or a Note
Guarantor was solvent at the relevant time, or whether, whatever standards were
to be used, the Notes or the Note Guarantees would not be avoided or further
subordinated on another of the grounds set forth above. In rendering their
opinions in connection with the initial borrowing under the Credit Facility,
counsel for the Company and the Note Guarantors and counsel for the lenders will
not express any opinion as to the applicability of federal or state fraudulent
transfer and conveyance laws. Moreover, any solvency analysis conducted in
connection with the Strategic Restructuring Plan would not be binding on a court
and there can be no assurance that a court would not determine that the Company
or a Note Guarantor was insolvent at the time of or after giving effect to the
Strategic Restructuring Plan.
The Company believes that at the time the indebtedness constituting the
Notes and the Note Guarantees will be incurred initially by the Company and the
Note Guarantors, each of the Company and the Note Guarantors (i) will be (a)
neither insolvent nor rendered insolvent thereby, (b) in possession of
sufficient capital to run its respective business effectively and (c) incurring
debts within its respective ability to pay as the same mature or become due and
(ii) will have sufficient assets to satisfy any probable money judgment against
it in any pending action. In reaching the foregoing conclusions, the Company has
relied upon its analyses of internal cash flow projections and estimated values
of assets and liabilities of the Company and the Note Guarantors. There can be
no assurance, however, that a court passing on such questions would reach the
same conclusions.
CHANGE OF CONTROL
The Indenture provides that, under certain conditions upon the occurrence of
a Change of Control Triggering Event, the Company will be required to make an
offer to purchase all or any part of the Notes at a price in cash equal to 101%
of the aggregate principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase. The Credit Facility will generally prohibit the
Company from so repurchasing any Notes and will also provide that certain change
of control events with respect to the Company will constitute a default
thereunder. Any future agreements or other agreement relating to Senior
Indebtedness to which the Company becomes a party may contain similar
provisions. If the Company does not repay or refinance borrowings having such
provisions or otherwise obtain consent to purchase the Notes under such
agreements, any resulting failure to offer to purchase or to purchase Notes
would constitute an Event of Default (as defined herein) under the Indenture.
If, as a result thereof, a default occurs with respect to any Senior
Indebtedness, the subordination provisions in the Indenture would likely
restrict payments to the holders of the Notes. Moreover, the exercise by the
Holders of their right to require the Company to repurchase the Notes could
cause a default under such agreements, even if the Change of Control Triggering
Event itself does not, due to the financial effect of such repurchase on the
Company. Finally, the Company's ability to pay cash to the Holders upon a
repurchase may be limited by the Company's then existing financial resources.
There can be no assurance that sufficient funds will be available when necessary
to make any required repurchases. See "Description of the New Notes--Change of
Control," "--Ranking."
24
<PAGE>
YEAR 2000 COMPLIANCE
The Company has commenced a process to assess Year 2000 compliance of its
systems and the systems of major vendors and third party service providers, and
to remediate any non-compliance of its systems. The Company's process involves
the following three phases:
PHASE ONE--INVENTORY AND PLANNING. The Company completed this phase in
May 1998. In this phase, the Company inventoried all hardware and software
that potentially is susceptible to Year 2000 problems, prepared plans for
assessing compliance and for completing remediation, and prepared vendor and
supplier compliance surveys.
PHASE TWO--ASSESSMENT. In this phase, the Company is assessing which of
its systems are Year 2000 compliant, obtaining compliance statements from
hardware and software vendors, supply manufacturers and service trading
partners, and planning for remediation of non-compliant systems. The Company
expects to complete this phase in November 1998.
PHASE THREE--REMEDIATION AND TESTING. In this phase, the Company will
deploy plans for elimination, upgrade, replacement or modification of
non-compliant systems and test compliance. The Company has scheduled
completion of this phase for July 1999.
The Company's Trinity system, which is the core operations system for its
NAOPG operations, is Year 2000 compliant. The Company is installing this system
throughout its NAOPG operations, but does not expect to complete installation
before the end of 1999. Therefore, the Company is assessing the compliance of
systems used by its NAOPG operating subsidiaries. The Company has determined
that some of the systems used by its NAOPG subsidiaries are not currently Year
2000 compliant, but the Company believes that it is highly likely that these
systems will be made compliant without material expense by the middle of 1999.
The Company has determined that the systems used by its MBE operations are 80%
compliant and MBE is in the process of reprogramming the balance of the systems.
The Company believes that this process will be completed without material
expense. The Company also expects that systems used by the Blue Star Group in
New Zealand will be compliant within a safe time frame and without material
expense. An initial assessment of the systems of Dudley Stationery Limited, the
Company's UK affiliate, indicates that there are no significant Year 2000 issues
within that system.
The Company's assessment plan includes assessment of Year 2000 compliance of
non-information technology (non-IT) components, including the Company's bindery
machinery, coffee roasting facilities, office furniture manufacturing
facilities, security systems, credit card processing devices and freight
elevators. The Company believes there are no significant uses of
micro-processing oriented equipment within its manufacturing systems and will
complete assessment of other non-IT components by November 1998.
The Company has received compliance statements from approximately 77% of its
supply vendors. Based on these statements, the Company believes that 95% of
supply vendors who have responded will be Year 2000 compliant by the end of June
1999. The Company has identified eight vendors as fitting a "concerned" profile
due to late compliance dates or because responses indicate some possibility of
poor planning. The Company is working with each of these vendors to remediate
these concerns.
If the Company fails to achieve Year 2000 compliance in all its systems, the
Company could lose the ability to process certain of its customers' orders until
compliance is achieved or a means to work around the failure is implemented. The
Company's systems are not now uniform across all operations and the Company does
not expect uniformity by the end of 1999. Therefore, any failure would not be
system wide. The Company believes that in a worst case scenario, at most 20% of
its orders would be affected. A failure to fill orders would not, however,
necessarily result in a complete loss of the order. An order could be filled
through alternative methods within a relatively short period. Nevertheless, any
disruption in order fulfillment could result in some loss of revenue. If this
disruption is the result of noncompliance that is greater than anticipated, the
loss of revenue could be material. The Company intends to establish by the
25
<PAGE>
middle of 1999 contingency plans to deal with possible failures in order
fulfillment systems or other systems.
The Company's assessment and remediation of Year 2000 compliance issues has
a budget of less than $1.0 million, and expenses have been less than expected.
The Company does not currently expect that future expenses for assessment or
remediation will be material.
ABSENCE OF PUBLIC TRADING MARKET FOR THE NEW NOTES
There is no public market for the New Notes. Application has been made to
list the New Notes on the Luxembourg Stock Exchange and the Company does not
intend to apply for listing of the Notes on any other national securities
exchange or for quotation of the New Notes through the Nasdaq Stock Market. The
Company has been advised by the Placement Agents that the Placement Agents
intend to make a market in the New Notes; however, they are under no obligation
to do so and may discontinue any market-making activities at any time without
notice. No assurance can be given as to the liquidity of the trading market for
the New Notes or that an active public market will develop. If an active public
market does not develop or is not maintained, the market price and liquidity of
the New Notes may be adversely affected.
CONSEQUENCES OF A FAILURE TO EXCHANGE OLD NOTES
The Old Notes have not been registered under the Securities Act or any state
securities laws and therefore may not be offered, sold or otherwise transferred
except in compliance with the registration requirements of the Securities Act
and any other applicable securities laws, or pursuant to an exemption therefrom
or in a transaction not subject thereto, and in each case in compliance with
certain other conditions and restrictions. Old Notes which remain outstanding
after consummation of the Exchange Offer will continue to bear a legend
reflecting such restrictions on transfer. In addition, upon consummation of the
Exchange Offer, holders of Old Notes that remain outstanding will not be
entitled to any rights to have such Old Notes registered under the Securities
Act or to any similar rights under the Registration Rights Agreement and will
not be entitled to an increased interest rate. See "Description of the Old
Notes--Registration Rights." The Company does not intend to register under the
Securities Act any Old Notes that remain outstanding after consummation of the
Exchange Offer.
To the extent that Old Notes are tendered and accepted in the Exchange
Offer, a holder's ability to sell untendered Old Notes could be adversely
affected. In addition, although the Old Notes have been designated for trading
in the Private Offerings, to the extent that Old Notes are tendered and accepted
in connection with the Exchange Offer, any trading market for Old Notes that
remain outstanding after the Exchange Offer could be adversely affected.
Notes not tendered in the Exchange Offer shall bear interest at the rate of
9 3/4% and be subject to all of the terms and conditions specified in the
Indenture and to the transfer restrictions described in "Description of the Old
Notes--Transfer Restrictions."
USE OF PROCEEDS
The Company will not receive any cash proceeds from the issuance of the New
Notes offered hereby. The New Notes will be exchanged for Old Notes of like
principal amount. Old Notes that are exchanged will be retired and canceled. The
net proceeds from the placement of the Old Notes, which were approximately
$385.7 million, were used, together with the proceeds of borrowings under the
Credit Facility and the proceeds of the Equity Investment, to refinance existing
debt, to pay the purchase price of the Equity Tender Offer and to pay other fees
and expenses incurred in connection with the Strategic Restructuring Plan and
the Financing Transactions.
26
<PAGE>
CAPITALIZATION
The following table sets forth the capitalization of the Company at July 25,
1998. This table should be read in conjunction with the historical consolidated
financial statements and the related notes thereto and "Management's Discussion
and Analysis of Financial Condition and Results of Operations" that appear in
the Company's Annual Report on Form 10-K and the Company's Quarterly Report on
Form 10-Q that are incorporated by reference into this Prospectus and the
unaudited pro forma combined financial statements of the Company and the related
notes thereto that appear elsewhere in this Prospectus.
<TABLE>
<CAPTION>
JULY 25, 1998
-------------
<S> <C>
(IN
THOUSANDS)
Credit Facility.................................................................................... $ 785,000
2001 Notes......................................................................................... 12,761
2003 Notes......................................................................................... 4,614
The Notes.......................................................................................... 400,000
Other debt(1)...................................................................................... 10,564
-------------
Total debt....................................................................................... 1,212,939
-------------
Stockholders' equity:
Preferred stock, $0.001 par value, 500,000 shares authorized; none outstanding...................
Common stock, $0.001 par value, 500,000,000 shares authorized, 36,686,119 shares issued,
36,517,184 shares outstanding, and 168,935 shares held in treasury............................. 37
Additional paid-in capital....................................................................... 677,851
Accumulated other comprehensive loss............................................................. (148,430)
Retained deficit................................................................................. (14,210)
-------------
Total stockholders' equity..................................................................... 515,248
-------------
Total capitalization......................................................................... $ 1,728,187
-------------
-------------
</TABLE>
- ------------------------
(1) Other debt includes $6,464 of Guarantor Senior Indebtedness and $4,114 of
indebtedness of the Company's other subsidiaries.
27
<PAGE>
THE EXCHANGE OFFER
PURPOSE AND EFFECT
In connection with the sale of the Old Notes, the Company entered into the
Registration Rights Agreement with the Placement Agents, pursuant to which the
Company agreed, among other things, to use its best efforts to file under the
Securities Act a registration statement relating to an offer to exchange the Old
Notes for New Notes with terms identical in all material respects (except as
described below) and to have such Registration Statement remain effective until
the closing of the Exchange Offer. A copy of the Registration Rights Agreement
is incorporated in the Registration Statement of which this Prospectus is a
part. The Exchange Offer is being made to satisfy the contractual obligations of
the Company under the Registration Rights Agreement. The approval of Federal or
State authorities is not required for consummation of the Exchange Offer.
The Old Notes provide, among other things, that in the event the Exchange
Offer is not consummated and a Shelf Registration Statement is not declared
effective on or prior to December 10, 1998 the annual interest rate of the Old
Notes shall increase by (a) prior to the 91st day after December 10, 1998, .25%
per annum and (b) thereafter, .50% per annum until the Exchange Offer is
consummated or the Shelf Registration Statement is declared effective. See
"Description of the Old Notes--Registration Rights." The form and terms of the
New Notes are identical in all material respects to the form and terms of the
Old Notes except that the New Notes have been registered under the Securities
Act and therefore will not contain terms with respect to transfer restrictions
and will not provide for an increase in interest payments or other distributions
thereon as a consequence of a failure to take certain actions in connection with
their registration under the Securities Act.
The Exchange Offer is not being made to, nor will the Company accept tenders
for exchange from, holders of Old Notes in any jurisdiction in which the
Exchange Offer or the acceptance thereof would not be in compliance with the
securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with respect to the
Exchange Offer means any person in whose name the Old Notes are registered on
the books of the Company or any other person who has obtained a properly
completed bond power from the registered holder, or any person whose Old Notes
are held of record by The Depository Trust Company who desires to deliver such
Old Notes by book-entry transfer at The Depository Trust Company.
TERMS OF THE EXCHANGE
The Company hereby offers, upon the terms and subject to the conditions set
forth in this Prospectus and in the accompanying Letter of Transmittal, to
exchange up to $400,000,000 aggregate principal amount of New Notes for a like
aggregate principal amount of Old Notes properly tendered on or prior to the
Expiration Date (as defined below) and not properly withdrawn in accordance with
the procedures described below. The Company will issue, promptly after the
Expiration Date, an aggregate principal amount of up to $400,000,000 of New
Notes in exchange for a like principal amount of outstanding Old Notes tendered
and accepted in connection with the Exchange Offer. The Exchange Offer is not
conditioned upon any minimum principal amount of Old Notes being tendered. As of
the date of this Prospectus $400,000,000 aggregate principal amount of the Old
Notes is outstanding.
Holders of Old Notes do not have any appraisal or dissenters' rights in
connection with the Exchange Offer. Old Notes that are not tendered for, or are
tendered but not accepted in connection with the Exchange Offer, will remain
outstanding and be entitled to the benefits of the Indenture, but will not be
entitled to any further registration rights under the Registration Rights
Agreement. See "Risk Factors-- Consequences of a Failure to Exchange Old Notes"
and "Description of the Old Notes--Registration Rights." If any tendered Old
Notes are not accepted for exchange because of an invalid tender, the occurrence
of certain other events set forth herein or otherwise, certificates for such
unaccepted Old Notes
28
<PAGE>
will be returned, without expense, to the tendering holder thereof promptly
after the Expiration Date, or, if such unaccepted Old Notes are uncertificated,
such securities will be returned, without expense to the tendering holder
thereof promptly after the Expiration Date via book entry transfer.
Each Holder who tenders Old Notes pursuant to the Exchange Offer will be
required to pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Old Notes. The Company will
generally pay all other fees and expenses in connection with the registration
statement for the Exchange Offer. See "--Fees and Expenses."
THE BOARD OF DIRECTORS OF THE COMPANY DOES NOT MAKE ANY RECOMMENDATION TO
HOLDERS OF OLD NOTES AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING ALL OR
ANY PORTION OF THEIR OLD NOTES PURSUANT TO THE EXCHANGE OFFER. IN ADDITION, NO
ONE HAS BEEN AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION. HOLDERS OF OLD NOTES
MUST MAKE THEIR OWN DECISION WHETHER TO TENDER PURSUANT TO THE EXCHANGE OFFER
AND, IF SO, THE AGGREGATE AMOUNT OF OLD NOTES TO TENDER AFTER READING THIS
PROSPECTUS AND THE LETTER OF TRANSMITTAL AND CONSULTING WITH THEIR ADVISERS, IF
ANY, BASED ON THEIR OWN FINANCIAL POSITION AND REQUIREMENTS.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" means 5:00 p.m., New York City time, on December
7, 1998 unless the Exchange Offer is extended by the Company (in which case the
term "Expiration Date" shall mean the latest date and time to which the Exchange
Offer is extended). The Company expressly reserves the right in its sole and
absolute discretion, subject to applicable law, at any time and from time to
time, (i) to delay the acceptance of the Old Notes for exchange, (ii) to
terminate the Exchange Offer (iii) to extend the Expiration Date of the Exchange
Offer and retain all Old Notes tendered pursuant to the Exchange Offer, subject,
however, to the right of holders of Old Notes to withdraw their tendered Old
Notes as described under "--Withdrawal Rights," and (iv) to waive any condition
or otherwise amend the terms of the Exchange Offer in any respect. If the
Exchange Offer is amended in a manner determined by the Company to constitute a
material change, or if the Company waives a material condition of the Exchange
Offer, the Company will promptly disclose such amendment by means of a
prospectus supplement that will be distributed to the registered holders of the
Old Notes, and the Company will extend the Exchange Offer to the extent required
by Rule 14e-1 under the Exchange Act.
Any such delay in acceptance, extension, termination or amendment will be
followed promptly by oral or written notice thereof to the Exchange Agent and by
making a public announcement thereof, and such announcement in the case of an
extension will be made no later than 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date. Without limiting
the manner in which the Company may choose to make any public announcement and
subject to applicable law, the Company shall have no obligation to publish,
advertise or otherwise communicate any such public announcement other than by
issuing a release to an appropriate news agency.
ACCEPTANCE OR EXCHANGE AND ISSUANCE OF NEW NOTES
Upon the terms and subject to the conditions of the Exchange Offer, the
Company will exchange, and will issue to the Exchange Agent, New Notes for Old
Notes validly tendered and not withdrawn (pursuant to the withdrawal rights
described under "--Withdrawal Rights") promptly after the Expiration Date. In
all cases, delivery of New Notes in exchange for Old Notes tendered and accepted
for exchange pursuant to the Exchange Offer will be made only after timely
receipt by the Exchange Agent of (i) Old Notes or a book-entry confirmation of a
book-entry transfer of Old Notes into the Exchange Agent's account at The
Depository Trust Company ("DTC"), (ii) the Letter of Transmittal (or facsimile
thereof), properly
29
<PAGE>
completed and duly executed, with any required signature guarantees, and (iii)
any other documents required by the Letter of Transmittal.
The term "book-entry confirmation" means a timely confirmation of a
book-entry transfer of Old Notes into the Exchange Agent's account at DTC.
Subject to the terms and conditions of the Exchange Offer, the Company will
be deemed to have accepted for exchange, and thereby exchanged, Old Notes
validly tendered and not withdrawn as, if and when the Company gives oral or
written notice to the Exchange Agent of the Company's acceptance of such Old
Notes for exchange pursuant to the Exchange Offer. The Exchange Agent will act
as agent for the Company for the purpose of receiving tenders of Old Notes,
Letters of Transmittal and related documents, and as agent for tendering holders
for the purpose of receiving Old Notes, Letters of Transmittal and related
documents and transmitting New Notes to validly tendering holders. Such exchange
will be made promptly after the Expiration Date. If for any reason whatsoever,
acceptance for exchange or the exchange of any Old Notes tendered pursuant to
the Exchange Offer is delayed (whether before or after the Company's acceptance
for exchange of Old Notes) or the Company extends the Exchange Offer or is
unable to accept for exchange or exchange Old Notes tendered pursuant to the
Exchange Offer, then, without prejudice to the Company's rights set forth
herein, the Exchange Agent may, nevertheless, on behalf of the Company and
subject to Rule 14e-1(c) under the Exchange Act, retain tendered Old Notes and
such Old Notes may not be withdrawn except to the extent tendering holders are
entitled to withdrawal rights as described under "--Withdrawal Rights."
Pursuant to the Letter of Transmittal, a holder of Old Notes will warrant
and agree in the Letter of Transmittal that it has full power and authority to
tender, exchange, sell, assign and transfer Old Notes, that the Company will
acquire good, marketable and unencumbered title to the tendered Old Notes, free
and clear of all liens, restrictions, charges and encumbrances, and that the Old
Notes tendered for exchange are not subject to any adverse claims or proxies.
The holder also will warrant and agree that it will, upon request, execute and
deliver any additional documents deemed by the Company or the Exchange Agent to
be necessary or desirable to complete the exchange, sale, assignment, and
transfer of the Old Notes tendered pursuant to the Exchange Offer.
PROCEDURES FOR TENDERING OLD NOTES
VALID TENDER. Except as set forth below, in order for Old Notes to be
validly tendered pursuant to the Exchange Offer, a properly completed and duly
executed Letter of Transmittal (or facsimile thereof), with any required
signature guarantees and any other required documents, must be received by the
Exchange Agent at its address set forth under "--Exchange Agent," and either (i)
tendered Old Notes must be received by the Exchange Agent, or (ii) such Old
Notes must be tendered pursuant to the procedures for book-entry transfer set
forth below and a book-entry confirmation must be received by the Exchange
Agent, in each case on or prior to the Expiration Date, or (iii) the guaranteed
delivery procedures set forth below must be complied with.
If less than all of the Old Notes delivered are tendered for exchange, a
tendering holder should fill in the amount of Old Notes being tendered in the
appropriate box on the Letter of Transmittal. The entire amount of Old Notes
delivered to the Exchange Agent will be deemed to have been tendered unless
otherwise indicated.
THE METHOD OF DELIVERY OF CERTIFICATES, THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS, IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL, RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN
ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
30
<PAGE>
BOOK ENTRY TRANSFER. The Exchange Agent will establish an account with
respect to the Old Notes at DTC for purposes of the Exchange Offer within two
business days after the date of this Prospectus. Any financial institution that
is a participant in DTC's book-entry transfer facility system may make a book-
entry delivery of the Old Notes by causing DTC to transfer such Old Notes into
the Exchange Agent's account at DTC in accordance with DTC's procedures for
transfers. However, although delivery of Old Notes may be effected through
book-entry transfer into the Exchange Agent's account at DTC, the Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees and any other required documents, must in any
case be transmitted to and received by the Exchange Agent at its address set
forth under "--Exchange Agent" on or prior to the Expiration Date, or the
guaranteed delivery procedure set forth below must be complied with.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
The Exchange Agent and DTC have confirmed that any financial institution
that is a participant in DTC's book-entry transfer facility may utilize the
book-entry transfer facility Automated Tender Offer Program ("ATOP") procedures
to tender Old Notes.
Any participant in DTC's book-entry transfer facility may make book-entry
delivery of Old Notes by causing the book-entry transfer facility to transfer
such Old Notes into the Exchange Agent's account in accordance with the DTC
book-entry transfer facility's ATOP procedures for transfer. However, the
exchange for Old Notes so tendered will only be made after a book-entry
confirmation of such book-entry transfer of Old Notes into the Exchange Agent's
account, and timely receipt by the Exchange Agent of an Agent's Message (as such
term is defined in the next sentence) and any other documents required by the
Letter of Transmittal. The term "Agent's Message" means a message, transmitted
by DTC's book-entry transfer facility and received by the Exchange Agent and
forming part of a book-entry confirmation, which states that DTC's book-entry
transfer facility has received an express acknowledgment from a participant
tendering Old Notes that are the subject of such book-entry confirmation that
such participant has received and agrees to be bound by the terms of the Letter
of Transmittal, and that the Company may enforce such agreement against such
Participant.
SIGNATURE GUARANTEES. Certificates for the Old Notes need not be endorsed
and signature guarantees on the Letter of Transmittal are unnecessary unless (a)
a certificate for the Old Notes is registered in a name other than that of the
person surrendering the certificate or (b) such registered holder completes the
box entitled "Special Issuance Instructions" or "Special Delivery Instructions"
in the Letter of Transmittal. In the case of (a) or (b) above, such certificates
for Old Notes must be duly endorsed or accompanied by a properly executed bond
power, with the endorsement or signature on the bond power and on the Letter of
Transmittal guaranteed by a firm or other entity identified in Rule 17Ad-15
under the Exchange Act as an "eligible guarantor institution," including (as
such terms are defined therein): (i) a bank; (ii) a broker, dealer, municipal
securities broker or dealer or government securities broker or dealer; (iii) a
credit union; (iv) a national securities exchange, registered securities
association or clearing agency; or (v) a savings association that is a
participant in a Securities Transfer Association (an "Eligible Institution"),
unless surrendered on behalf of such Eligible Institution. See Instruction 1 to
the Letter of Transmittal.
GUARANTEED DELIVERY. If a holder desires to tender Old Notes pursuant to
the Exchange Offer and the certificates for such Old Notes are not immediately
available or time will not permit all required documents to reach the Exchange
Agent on or before the Expiration Date, or the procedures for book-entry
transfer cannot be completed on a timely basis, such Old Notes may nevertheless
be tendered, provided that all of the following guaranteed delivery procedures
are complied with:
(i) such tenders are made by or through an Eligible Institution;
31
<PAGE>
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form accompanying the Letter of Transmittal,
is received by the Exchange Agent, as provided below, on or prior to
Expiration Date; and
(iii) the certificates (or a book-entry confirmation) representing all
tendered Old Notes, in proper form for transfer, together with a properly
completed and duly executed Letter of Transmittal (or facsimile thereof),
with any required signature guarantees and any other documents required by
the Letter of Transmittal, are received by the Exchange Agent within three
Nasdaq Stock Market trading days after the date of execution of such Notice
of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand, or transmitted
by facsimile or mail to the Exchange Agent and must include a guarantee by an
Eligible Institution in the form set forth in such notice.
Notwithstanding any other provision hereof, the delivery of New Notes in
exchange for Old Notes tendered and accepted for exchange pursuant to the
Exchange Offer will in all cases be made only after timely receipt by the
Exchange Agent of Old Notes, or of a book-entry confirmation with respect to
such Old Notes, and a properly completed and duly executed Letter of Transmittal
(or facsimile thereof), together with any required signature guarantees and any
other documents required by the Letter of Transmittal. Accordingly, the delivery
of New Notes might not be made to all tendering holders at the same time, and
will depend upon when Old Notes, book-entry confirmations with respect to Old
Notes and other required documents are received by the Exchange Agent.
The acceptance by the Company for exchange of Old Notes tendered pursuant to
any of the procedures described above will constitute a binding agreement
between the tendering holder and the Company upon the terms and subject to the
conditions of the Exchange Offer.
DETERMINATION OF VALIDITY. All questions as to the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange of
any tendered Old Notes will be determined by the Company, in its sole
discretion, whose determination shall be final and binding on all parties. The
Company reserves the absolute right, in its sole and absolute discretion, to
reject any and all tenders determined by them not to be in proper form or the
acceptance of which, or exchange for, may, in the view of counsel to the
Company, be unlawful. The Company also reserves the absolute right, subject to
applicable law, to waive any of the conditions of the Exchange Offer as set
forth under "--Conditions to the Exchange Offer" or any condition or
irregularity in any tender of Old Notes of any particular holder whether or not
similar conditions or irregularities are waived in the case of other holders.
The Company's interpretation of the terms and conditions of the Exchange
Offer (including the Letter of Transmittal and the instructions thereto) will be
final and binding. No tender of Old Notes will be deemed to have been validly
made until all irregularities with respect to such tender have been cured or
waived. None of the Company, any affiliates or assigns of the Company, the
Exchange Agent or any other person shall be under any duty to give any
notification of any irregularities in tenders or incur any liability for failure
to give any such notification.
If any Letter of Transmittal, endorsement, bond power, power of attorney, or
any other document required by the Letter of Transmittal is signed by a trustee,
executor, administrator, guardian, attorney-in-fact, officer of a corporation or
other person acting in a fiduciary or representative capacity, such person
should so indicate when signing, and unless waived by the Company, proper
evidence satisfactory to the Company, in its sole discretion, of such person's
authority to so act must be submitted.
A beneficial owner of Old Notes that are held by or registered in the name
of a broker, dealer, commercial bank, trust company or other nominee or
custodian is urged to contact such entity promptly if such beneficial holder
wishes to participate in the Exchange Offer.
32
<PAGE>
RESALES OF NEW NOTES
The Company is making the Exchange Offer for the Old Notes in reliance on
the position of the staff of the Division of Corporation Finance of the
Commission (the "Staff") as set forth in certain interpretive letters addressed
to third parties in other transactions. However, the Company has not sought its
own interpretive letter and there can be no assurance that the Staff would make
a similar determination with respect to the Exchange Offer as it has in such
interpretive letters to third parties. Based on these interpretations by the
Staff, and subject to the two immediately following sentences, the Company
believes that New Notes issued pursuant to this Exchange Offer in exchange for
Old Notes may be offered for resale, resold and otherwise transferred by a
holder thereof (other than a holder who is a broker-dealer) without further
compliance with the registration and prospectus delivery requirements of the
Securities Act, provided that such New Notes are acquired in the ordinary course
of such holder's business and that such holder is not participating, and has no
arrangement or understanding with any person to participate, in a distribution
(within the meaning of the Securities Act) of such New Securities. However, any
holder of Old Notes who is an "affiliate" of the Company or who intends to
participate in the Exchange Offer for the purpose of distributing New Notes, or
any broker-dealer who purchased Old Notes from the Company to resell pursuant to
Rule 144A or any other available exemption under the Securities Act, (a) will
not be able to rely on the interpretations of the Staff set out in the
above-mentioned interpretive letters, (b) will not be permitted or entitled to
tender such Old Notes in the Exchange Offer and (c) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any sale or other transfer of such Old Notes unless such sale is
made pursuant to an exemption from such requirements. In addition, as described
below, if any broker-dealer holds Old Notes acquired for its own account as a
result of market-making or other trading activities and exchanges such Old Notes
for New Notes, then such broker-dealer must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of such New
Notes.
Each holder of Old Notes who wishes to exchange Old Notes for New Notes in
the Exchange Offer will be required to represent that at the time of the
consummation of the Exchange Offer (i) it is not an "affiliate" of the Company
within the meaning of Rule 405 under the 1933 Act, (ii) any New Notes to be
received by it are being acquired in the ordinary course of its business, (iii)
it has no arrangement or understanding with any person to participate in a
distribution (within the meaning of the Securities Act) of such New Notes. Each
broker-dealer that receives New Notes for its own account pursuant to the
Exchange Offer must acknowledge that it acquired the Old Notes for its own
account as the result of market-making activities or other trading activities
and must agree that it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such New Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. Based on the position taken by the Staff in the
interpretive letters referred to above, the Company believes that broker-dealers
who acquired Old Notes for their own accounts as a result of market-making
activities or other trading activities ("Participating Broker-Dealers") may
fulfill their prospectus delivery requirements with respect to the New Notes
received upon exchange of such Old Notes (other than Old Notes which represent
an unsold allotment from the original sale of the Old Notes) with a prospectus
meeting the requirements of the Securities Act, which may be the prospectus
prepared for an exchange offer so long as it contains a description of the plan
of distribution with respect to the resale of such New Notes. Accordingly, this
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Participating Broker-Dealer during the period referred to below in
connection with resales of New Notes received in exchange for Old Notes where
such Old Notes were acquired by such Participating Broker-Dealer for its own
account as a result of market-making or other trading activities. Subject to
certain provisions set forth in the Registration Rights Agreement, the Company
has agreed that this Prospectus, as it may be amended or supplemented from time
to time, may be used by a Participating Broker-Dealer in connection with resales
of such New Notes for a period ending 90 days after the Expiration Date or, if
earlier, when all such New Notes have been disposed of by such Participating
Broker-Dealer. See "Plan of
33
<PAGE>
Distribution." Any Participating Broker-Dealer who is an "affiliate" of the
Company may not rely on such interpretive letters and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction.
In that regard, each Participating Broker-Dealer who surrenders Old Notes
pursuant to the Exchange Offer will be deemed to have agreed, by execution of
the Letter of Transmittal, that, upon receipt of notice from the Company of the
occurrence of any event or the discovery of any fact which makes any statement
contained or incorporated by reference in this Prospectus untrue in any material
respect or which causes this Prospectus to omit to state a material fact
necessary in order to make the statements contained or incorporated by reference
herein, in light of the circumstances under which they were made, not misleading
or of the occurrence of certain other events specified in the Registration
Rights Agreement, such Participating Broker-Dealer will suspend the sale of New
Notes pursuant to this Prospectus until the Company has amended or supplemented
this Prospectus to correct such misstatement or omission and has furnished
copies of the amended or supplemented Prospectus to such Participating
Broker-Dealer or the Company has given notice that the sale of the New Notes may
be resumed, as the case may be.
WITHDRAWAL RIGHTS
Except as otherwise provided herein, tenders of Old Notes may be withdrawn
at any time on or prior to the Expiration Date.
In order for a withdrawal to be effective a written, telegraphic, telex or
facsimile transmission of such notice of withdrawal must be timely received by
the Exchange Agent at its addresses set forth under "-- Exchange Agent" on or
prior to the Expiration Date. Any such notice of withdrawal must specify the
name of the person who tendered the Old Notes to be withdrawn, the aggregate
principal amount of Old Notes to be withdrawn, and (if certificates for such Old
Notes have been tendered) the name of the registered holder of the Old Notes as
set forth on the Old Notes, if different from that of the person who tendered
such Old Notes. If Old Notes have been delivered or otherwise identified to the
Exchange Agent, then prior to the physical release of such Old Notes, the
tendering holder must submit the serial numbers shown on the particular Old
Notes to be withdrawn and the signature on the notice of withdrawal must be
guaranteed by an Eligible Institution, except in the case of Old Notes tendered
for the account of an Eligible Institution. If Old Notes have been tendered
pursuant to the procedures for book-entry transfer set forth in "--Procedures
for Tendering Old Notes," the notice of withdrawal must specify the name and
number of the account at DTC to be credited with the withdrawal of Old Notes, in
which case a notice of withdrawal will be effective if delivered to the Exchange
Agent by written, telegraphic, telex or facsimile transmission. Withdrawals of
tenders of Old Notes may not be rescinded. Old Notes properly withdrawn will not
be deemed validly tendered for purposes of the Exchange Offer, but may be
retendered at any subsequent time on or prior to the Expiration Date by
following any of the procedures described above under "--Procedures for
Tendering Old Notes."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Company, in its
sole discretion, whose determination shall be final and binding on all parties.
None of the Company, any affiliates or assigns of the Company, the Exchange
Agent or any other person shall be under any duty to give any notification of
any irregularities in any notice of withdrawal or incur any liability for
failure to give any such notification. Any Old Notes which have been tendered
but which are withdrawn will be returned to the holder thereof promptly after
withdrawal.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, or any extension
of the Exchange Offer, the Company will not be required to accept for exchange,
or to exchange, any Old Notes for any New Notes, and may terminate the Exchange
Offer (whether or not any Old Notes have theretofore been accepted for exchange)
or may waive any conditions to or amend the Exchange Offer, if, the Company
34
<PAGE>
determines that the consummation of the Exchange Offer or any portion thereof
would violate any applicable law or any applicable interpretation of the
Commission or its staff. In such event, if the Company determines to amend the
Exchange Offer and such amendment constitutes a material change to the Exchange
Offer, the Company will promptly disclose such amendment by means of a
prospectus supplement that will be distributed to the registered holders of the
Old Notes, and the Company will extend the Exchange Offer to the extent required
by Rule 14e-1 under the Exchange Act. Holders of Old Notes are entitled to
certain rights under the Registration Rights Agreement in the event the Company
is unable to consummate the Exchange Offer. See "Description of the Old Notes."
EXCHANGE AGENT
State Street Bank and Trust Company has been appointed as Exchange Agent for
the Exchange Offer. Delivery of the Letter of Transmittal and any other required
documents, questions, requests for assistance, and requests for additional
copies of this Prospectus or of the Letter of Transmittal should be directed to
the Exchange Agent as follows:
State Street Bank and Trust Company
Corporate Trust Department
2 International Place, 4th Floor
Boston, MA 02110
Attention: Kellie Mullen
phone: (617) 664-5587
facsimile: (617) 664-5290
Delivery to other than the above address or facsimile number will not
constitute a valid delivery.
FEES AND EXPENSES
The Company has agreed to pay the Exchange Agent reasonable and customary
fees for its services and will reimburse it for its reasonable out-of-pocket
expenses in connection therewith. The Company will also pay brokerage houses and
other custodians, nominees and fiduciaries the reasonable out-of-pocket expenses
incurred by them in forwarding copies of this Prospectus and related documents
to the beneficial owners of Old Notes, and in handling or tendering for their
customers.
Each Holder who tenders Old Notes pursuant to the Exchange Offer will be
required to pay all underwriting discounts and commissions, if any, relating to
the sale or disposition of the Old Notes. If New Notes are to be delivered to,
or are to be issued in the name of, any person other than the registered holder
of the Old Notes tendered, or if a transfer tax is imposed for any reason other
than the exchange of Old Notes in connection with the Exchange Offer, then the
amount of any such transfer taxes (whether imposed on the registered holder or
any other persons) will be payable by the tendering holder. If satisfactory
evidence of payment of such taxes or exemption therefrom is not submitted with
the Letter of Transmittal, the amount of such transfer taxes will be billed
directly to such tendering holder.
The Company will generally pay all fees and expenses in connection with the
registration statement for the Exchange Offer. The Company will not make any
payment to brokers, dealers or others soliciting acceptances of the Exchange
Offer.
ACCOUNTING TREATMENT
The New Notes will be recorded on the date of the exchange at the same
carrying value as the Old Notes, which is face value. Accordingly, no gain or
loss for accounting purposes will be recognized by the Company. The expense
related to the issuance of the New Notes and of the Exchange Offer will be
amortized over the term of the New Notes.
35
<PAGE>
DESCRIPTION OF THE NEW NOTES
GENERAL
The New Notes are to be issued under an Indenture, dated June 10, 1998 (the
"Indenture"), between the Company and State Street Bank and Trust Company, as
Trustee (the "Trustee"). The following is a summary of certain provisions of the
Indenture and the Notes. It does not purport to be complete and is subject to,
and is qualified in its entirety by reference to, all the provisions of the
Indenture, including the definitions of certain terms therein and those terms to
be made a part thereof by the Trust Indenture Act of 1939, as amended ("TIA").
The term "Company" and the other capitalized terms defined in "--Certain
Definitions" below are used in this "Description of the New Notes" as so
defined. Reference to the "Notes" in this "Description of the New Notes" are to
the New Notes. The Indenture is filed as an Exhibit to the Registration
Statement of which this Prospectus forms a part.
Principal of, and premium, if any, and interest on, the Notes will be
payable, and the Notes may be exchanged or transferred, at the office or agency
of the Company in the Borough of Manhattan, The City of New York (which
initially shall be the corporate trust office of the Trustee at 61 Broadway,
15th Floor, New York, New York 10006) and at the office of the Luxembourg Paying
Agent, except that, at the option of the Company, payment of interest may be
made by check mailed to the address of the registered holders of the Notes as
such address appears in the Note Register.
The Notes will be unsecured obligations of the Company, ranking subordinate
in right of payment to all Senior Indebtedness of the Company.
The Notes will be issued only in fully registered form, without coupons, in
denominations of $1,000 and any integral multiple of $1,000. No service charge
will be made for any registration of transfer or exchange of Notes, but the
Company may require payment of a sum sufficient to cover any transfer tax or
other similar governmental charge payable in connection therewith.
The Notes have been designated eligible for trading in the PORTAL market.
Application has been made to list the Notes on the Luxembourg Stock Exchange.
TERMS OF THE NOTES
The Notes will mature on June 15, 2008. Each Note will bear interest at a
rate per annum shown on the cover page of this Prospectus from the date of
issuance, or from the most recent date to which interest has been paid or
provided for, payable semiannually in cash to Holders of record at the close of
business on the June 1 or December 1 immediately preceding the interest payment
date on June 15 and December 15 of each year, commencing December 15, 1998.
Interest will be paid on the basis of a 360-day year consisting of twelve 30-day
months.
The Notes will be issued initially in an aggregate principal amount of
$400.0 million. Additional securities may be issued under the Indenture in one
or more series from time to time ("Additional Notes"), subject to the
limitations set forth under "--Certain Covenants--Limitation on Indebtedness,"
not to exceed $200.0 million. Any Additional Notes subsequently issued may vote
as a class with the Notes and may otherwise be treated as Notes for purposes of
the Indenture.
The Company has agreed to file a registration statement relating to the
Exchange Offer with the Commission, as described under "Description of the Old
Notes--Registration Rights." The terms of the New Notes will be identical in all
material respects to the Old Notes, except for certain transfer restrictions and
other rights relating to the Exchange Offer, and New Notes will otherwise be
treated as Notes for purposes of the Indenture.
36
<PAGE>
OPTIONAL REDEMPTION
The Notes will be redeemable, at the Company's option, in whole or in part,
and from time to time on and after June 15, 2003 and prior to maturity. Such
redemption may be made upon notice mailed by first-class mail to each Holder's
registered address and upon publication in Luxembourg in accordance with
"--Notices," not less than 30 nor more than 60 days prior to the relevant
redemption date. Any such redemption and notice may, in the Company's
discretion, be subject to the satisfaction of one or more conditions precedent.
The Notes will be so redeemable at the following redemption prices (expressed as
a percentage of principal amount), plus accrued interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), if
redeemed during the 12-month period commencing on June 15 of the years set forth
below:
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
- --------------------------------------------------------------------------------- -----------
<S> <C>
2003............................................................................. 104.875%
2004............................................................................. 103.250%
2005............................................................................. 101.625%
2006 and thereafter.............................................................. 100.000%
</TABLE>
In addition, at any time and from time to time prior to June 15, 2001, the
Company at its option may redeem Notes in an aggregate principal amount equal to
up to 35% of the original aggregate principal amount of the Notes (including the
principal amount of any Additional Notes), with funds in an aggregate amount
(the "Redemption Amount") not exceeding the aggregate proceeds of one or more
Equity Offerings (as defined below), at a redemption price (expressed as a
percentage of principal amount thereof) of 109.750% plus accrued interest, if
any, to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date); PROVIDED, HOWEVER, that an aggregate principal amount of Notes equal to
at least 65% of the original aggregate principal amount of the Notes (including
the principal amount of any Additional Notes), must remain outstanding after
each such redemption. "Equity Offering" means a sale of Capital Stock (other
than Disqualified Stock) (x) that is a sale of Capital Stock of the Company, or
(y) proceeds of which in an amount equal to or exceeding the Redemption Amount
are contributed to the Company or any of its Restricted Subsidiaries. The
Company may make such redemption upon notice mailed by first-class mail to each
Holder's registered address and upon publication in Luxembourg in accordance
with "--Notices", not less than 30 nor more than 60 days prior to the redemption
date (but in no event more than 90 days after the completion of the related
Equity Offering). Any such notice may be given prior to the completion of the
related Equity Offering, and any such redemption or notice may, at the Company's
discretion, be subject to the satisfaction of one or more conditions precedent,
including but not limited to the completion of the related Equity Offering.
At any time on or prior to June 15, 2003, the Notes may also be redeemed or
purchased (by the Company or any other Person) in whole but not in part, at the
Company's option, upon the occurrence of a Change of Control, at a price (the
"Redemption Price") equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued but unpaid interest, if any, to, the date
of redemption or purchase (the "Redemption Date") (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date). Such redemption or purchase may be made upon
notice mailed by first-class mail to each Holder's registered address and upon
publication in Luxembourg in accordance with "--Notices," not less than 30 nor
more than 60 days prior to the redemption date (but in no event more than 180
days after the occurrence of such Change of Control). The Company may provide in
such notice that payment of the Redemption Price and performance of the
Company's obligations with respect to such redemption or purchase may be
performed by another Person. Any such notice may be given prior to the
occurrence of the related Change of Control, and any such
37
<PAGE>
redemption, purchase or notice may, at the Company's discretion, be subject to
the satisfaction of one or more conditions precedent, including but not limited
to the occurrence of the related Change of Control.
"Applicable Premium" means, with respect to a Note at any Redemption Date,
the greater of (I) 1.0% of the principal amount of such Note and (II) the excess
of (A) the present value at such Redemption Date of (1) the redemption price of
such Note on June 15, 2003 (such redemption price being that described in the
first paragraph of this "Optional Redemption" section) plus (2) all required
remaining scheduled interest payments due on such Note through June 15, 2003,
computed using a discount rate equal to the Treasury Rate plus 50 basis points,
over (B) the principal amount of such Note on such Redemption Date. Calculation
of the Applicable Premium will be made by the Company or on behalf of the
Company by such Person as the Company shall designate, provided that such
calculation shall not be a duty or obligation of the Trustee.
"Treasury Rate" means the yield to maturity at the time of computation of
United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519) that
has become publicly available at least two Business Days prior to the Redemption
Date (or, if such Statistical Release is no longer published, any publicly
available source or similar market data)) most nearly equal to the period from
the Redemption Date to June 15, 2003; PROVIDED, HOWEVER, that if the period from
the Redemption Date to June 15, 2003 is not equal to the constant maturity of
the United States Treasury security for which a weekly average yield is given,
the Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
securities for which such yields are given, except that if the period from the
Redemption Date to June 15, 2003 is less than one year, the weekly average yield
on actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used.
In addition, as more fully described under "--Change of Control," each
Holder will have the right to require the Company to repurchase all or any part
of such Holder's Notes following a Change of Control Trigger Event at a purchase
price in cash equal to 101% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of repurchase.
SELECTION
In the case of any partial redemption, selection of the Notes for redemption
will be made by the Trustee on a PRO RATA basis, by lot or by such other method
as the Trustee in its sole discretion shall deem to be fair and appropriate,
although no Note of $1,000 in original principal amount or less will be redeemed
in part. If any Note is to be redeemed in part only, the notice of redemption
relating to such Note shall state the portion of the principal amount thereof to
be redeemed. A new Note in principal amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Note.
NOTE GUARANTEES
Each Domestic Subsidiary that on the Issue Date guaranteed payment by the
Company of Bank Indebtedness of the Company has guaranteed payment of the Notes.
In addition, after the Issue Date, the Company will cause each Material Domestic
Subsidiary that guarantees payment by the Company of Bank Indebtedness to
execute and deliver to the Trustee a supplemental indenture or other instrument
pursuant to which such Subsidiary will guarantee payment of the Notes, whereupon
such Subsidiary will become a Note Guarantor for all purposes under the
Indenture. The Company will also have the right to cause any other Subsidiary so
to guarantee payment of the Notes. Note Guarantees will be subject to release
and discharge under certain circumstances prior to payment in full of the Notes.
See "--Certain Covenants-- Future Note Guarantors."
38
<PAGE>
RANKING
The indebtedness evidenced by the Notes will be unsecured Senior
Subordinated Indebtedness of the Company, will be subordinated in right of
payment, as set forth in the Indenture, to the payment when due of all existing
and future Senior Indebtedness of the Company, including the Company's
obligations under the Senior Credit Facility, will rank PARI PASSU in right of
payment with all existing and future Senior Subordinated Indebtedness of the
Company and will be senior in right of payment to all future Subordinated
Obligations of the Company. The Notes will also be effectively subordinated to
any Secured Indebtedness of the Company to the extent of the value of the assets
securing such Indebtedness. However, payment from the money or the proceeds of
U.S. Government Obligations held in any defeasance trust described under
"--Defeasance" below is not subordinated to any Senior Indebtedness or subject
to the restrictions described herein.
At July 25, 1998 the Company had (I) approximately $785.0 million of
outstanding Senior Indebtedness, all of which would have constituted Guarantor
Senior Indebtedness, (II) additional availability of $440.0 million for
borrowings under the Senior Credit Facility, all of which would have been
Secured Indebtedness, (III) no Senior Subordinated Indebtedness (other than the
indebtedness represented by the Notes and the Convertible Subordinated Notes),
and (IV) no Subordinated Obligations. Although the Indenture contains
limitations on the amount of additional Indebtedness that the Company may Incur,
under certain circumstances the amount of such Indebtedness could be substantial
and, in any case, such Indebtedness may be Senior Indebtedness or Secured
Indebtedness. See "--Certain Covenants--Limitation on Indebtedness" below.
The obligations of each Note Guarantor under the Note Guarantee to which it
is a party will be unsecured Guarantor Senior Subordinated Indebtedness of such
Note Guarantor, will be subordinated in right of payment, as set forth in the
Indenture, to the payment when due of all existing and future Guarantor Senior
Indebtedness of such Note Guarantor, including the Note Guarantor's obligations
under or relating to the Senior Credit Facility, will rank PARI PASSU in right
of payment with all Guarantor Senior Subordinated Indebtedness of such Note
Guarantor and will be senior in right of payment to all Guarantor Subordinated
Obligations of such Note Guarantor. The Note Guarantee of each Note Guarantor
will also be effectively subordinated to any Secured Indebtedness of such Note
Guarantor to the extent of the value of the assets securing such Indebtedness.
The terms on which each Note Guarantee will be subordinated to the prior payment
in full of Guarantor Senior Indebtedness will be substantially identical to
those described below governing the subordination of the Notes to the prior
payment in full of Senior Indebtedness.
Substantially all of the operations of the Company are conducted through its
Subsidiaries. Claims of creditors of such Subsidiaries, including trade
creditors, and claims of preferred shareholders (if any) of such Subsidiaries
will have priority with respect to the assets and earnings of such Subsidiaries
over the claims of creditors of the Company, including (in the case of any
Subsidiary that is not a Note Guarantor) holders of the Notes. The Notes,
therefore, will be effectively subordinated to creditors (including trade
creditors) and preferred shareholders (if any) of Subsidiaries of the Company
that are not Note Guarantors. Certain of the operations of a Note Guarantor may
be conducted through Subsidiaries thereof that are not also Note Guarantors.
Claims of creditors of such Subsidiaries, including trade creditors, and claims
of preferred shareholders (if any) of such Subsidiaries will have priority with
respect to the assets and earnings of such Subsidiaries over the claims of
creditors of such Note Guarantor, including claims under the Note Guarantee of
such Note Guarantor. Such Note Guarantee, if any, therefore, will be effectively
subordinated to creditors (including trade creditors) and preferred shareholders
(if any) of such Subsidiaries. Although the Indenture limits the incurrence of
Indebtedness (including preferred stock) by certain of the Company's
Subsidiaries, such limitation is subject to a number of significant
qualifications. At July 25, 1998 the Note Guarantors had approximately $6.5
million of Guarantor Senior Indebtedness in addition to the $785.0 million of
Guarantor Senior Indebtedness described above and the Company's Subsidiaries
other than the Note Guarantors had approximately $4.1 million of indebtedness
outstanding.
39
<PAGE>
No preferred stock of such Subsidiaries was outstanding at such date. See
"--Certain Covenants-- Limitation on Indebtedness" below.
"Senior Indebtedness" means, with respect to the Company, the following
obligations, whether outstanding on the date of the Indenture or thereafter
issued, without duplication: (I) all Bank Indebtedness, (II) all obligations in
respect of any Receivables Financing, and (III) all obligations consisting of
the principal of and premium, if any, and accrued and unpaid interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company regardless of whether post-filing
interest is allowed in such proceeding) on, and fees and other amounts owing in
respect of, all other Indebtedness of the Company, unless, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it
is expressly provided that the obligations in respect of such Indebtedness are
not senior in right of payment to the Notes; PROVIDED, HOWEVER, that Senior
Indebtedness shall not include (1) any obligation of the Company to any
Subsidiary, (2) any liability for Federal, state, foreign, local or other taxes
owed or owing by the Company, (3) any accounts payable or other liability to
trade creditors arising in the ordinary course of business (including Guarantees
thereof or instruments evidencing such liabilities), (4) any Indebtedness of the
Company (or Guarantee by the Company of any Indebtedness) that is expressly
subordinated in right of payment to any other Indebtedness of the Company (or
Guarantee by the Company of any Indebtedness), (5) the Convertible Notes, (6)
any Capital Stock of the Company or (7) that portion of any Indebtedness of the
Company that is Incurred by the Company in violation of the covenant described
under "--Certain Covenants--Limitation on Indebtedness" (but no such violation
shall be deemed to exist for purposes of this clause (7) if any holder of such
Indebtedness or such holder's representative shall have received an Officer's
Certificate of the Company to the effect that such Incurrence of such
Indebtedness does not (or that the Incurrence by the Company of the entire
committed amount thereof at the date on which the initial borrowing thereunder
is made would not) violate such covenant). If any Senior Indebtedness is
disallowed, avoided or subordinated pursuant to the provisions of Section 548 of
Title 11 of the United States Code or any applicable state fraudulent conveyance
law, such Senior Indebtedness nevertheless will constitute Senior Indebtedness.
Only Indebtedness of the Company that is Senior Indebtedness will rank
senior to the Notes in accordance with the provisions of the Indenture. The
Notes will in all respects rank PARI PASSU with all other Senior Subordinated
Indebtedness of the Company. Only Indebtedness of a Note Guarantor that is
Guarantor Senior Indebtedness will rank senior to the Note Guarantee of such
Note Guarantor in accordance with the provisions of the Indenture. Such Note
Guarantee will in all respects rank PARI PASSU with all other Guarantor Senior
Subordinated Indebtedness of such Note Guarantor. The Company has agreed in the
Indenture that it will not Incur, directly or indirectly, any Indebtedness that
is expressly subordinated in right of payment to Senior Indebtedness of the
Company unless such Indebtedness is PARI PASSU with, or subordinated in right of
payment to, the Notes. Each Note Guarantor, if any, will agree that it will not
Incur, directly or indirectly, any Indebtedness that is expressly subordinated
in right of payment to Guarantor Senior Indebtedness of such Note Guarantor
unless such Indebtedness is PARI PASSU with, or subordinated in right of payment
to, the Note Guarantee of such Note Guarantor. Unsecured Indebtedness is not
deemed to be subordinate or junior to Secured Indebtedness merely because it is
unsecured, and Indebtedness that is not guaranteed by a particular Person is not
deemed to be subordinate or junior to Indebtedness that is so guaranteed merely
because it is not so guaranteed.
The Company may not pay principal of, or premium (if any) or interest on,
the Notes or make any deposit pursuant to the provisions described under
"--Defeasance" below and may not otherwise purchase, redeem or otherwise retire
any Notes (collectively, "pay the Notes") if (I) any Senior Indebtedness is not
paid when due in cash or Cash Equivalents or (II) any other default on Senior
Indebtedness occurs and the maturity of such Senior Indebtedness is accelerated
in accordance with its terms (either such event, a "Payment Default") unless, in
either case, (X) the Payment Default has been cured or waived and any such
acceleration has been rescinded in writing or (Y) such Senior Indebtedness has
been paid in full in cash or Cash Equivalents. However, the Company may pay the
Notes without regard to the
40
<PAGE>
foregoing if the Company and the Trustee receive written notice approving such
payment from the Representative for the Designated Senior Indebtedness with
respect to which the Payment Default has occurred and is continuing.
In addition, during the continuance of any default (other than a Payment
Default) with respect to any Designated Senior Indebtedness pursuant to which
the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace period (a "Non-payment Default"), the Company
may not pay the Notes for the period specified as follows (a "Payment Blockage
Period"). A Payment Blockage Period shall commence upon the receipt by the
Trustee (with a copy to the Company) of written notice (a "Blockage Notice") of
such Non-payment Default from the Representative for such Designated Senior
Indebtedness specifying an election to effect a Payment Blockage Period and
shall end on the earliest to occur of the following events: (I) 179 days shall
have elapsed since such receipt of such Blockage Notice, (II) the Non-payment
Default giving rise to such Blockage Notice is no longer continuing (and no
other Payment Default or Non-payment Default is then continuing), (III) such
Designated Senior Indebtedness shall have been discharged or repaid in full in
cash or Cash Equivalents or (IV) such Payment Blockage Period shall have been
terminated by written notice to the Trustee and the Company from the Person or
Persons who gave such Blockage Notice. The Company shall promptly resume
payments on the Notes, including any missed payments, after such Payment
Blockage Period ends, unless the holders of such Designated Senior Indebtedness
or the Representative of such holders have accelerated the maturity of such
Designated Senior Indebtedness, or any Payment Default otherwise exists. Not
more than one Blockage Notice may be given in any 360 consecutive day period,
irrespective of the number of defaults with respect to Designated Senior
Indebtedness during such period, except that if any Blockage Notice within such
360-day period is given by or on behalf of any holders of Designated Senior
Indebtedness other than Bank Indebtedness, a Representative of holders of Bank
Indebtedness may give another Blockage Notice within such period. In no event
may the total number of days during which any Payment Blockage Period is in
effect extend beyond 179 days from the date of receipt by the Trustee of the
relevant Blockage Notice, and there must be a 181 consecutive day period during
any 360 consecutive day period during which no Payment Blockage Period is in
effect.
Upon any payment or distribution of the assets of the Company upon a total
or partial liquidation or dissolution or reorganization of or similar proceeding
relating to the Company or its property, or in a bankruptcy, insolvency,
receivership or similar proceeding relating to the Company or its property, the
holders of Senior Indebtedness will be entitled to receive payment in full of
the Senior Indebtedness before the Noteholders are entitled to receive any
payment and until the Senior Indebtedness is paid in full, any payment or
distribution to which Noteholders would be entitled but for the subordination
provisions of the Indenture will be made to holders of the Senior Indebtedness
as their interests may appear. If a distribution is made to Noteholders that due
to the subordination provisions should not have been made to them, such
Noteholders are required to hold it in trust for the holders of Senior
Indebtedness and pay it over to them as their interests may appear.
If the Company fails to make any payment on the Notes when due or within any
applicable grace period, whether or not on account of the payment blockage
provisions referred to above, such failure would constitute an Event of Default
under the Indenture and would enable the holders of the Notes to accelerate the
maturity thereof. See "--Defaults." If payment of the Notes is accelerated
because of an Event of Default, the Company or the Trustee shall promptly notify
the holders of the Designated Senior Indebtedness or the Representative of such
holders of the acceleration. Such acceleration will not be effective, and the
Company may not pay the Notes, until five Business Days after such holders or
the Representative of each Designated Senior Indebtedness receive notice of such
acceleration and, thereafter, the Company may pay the Notes only if the
subordination provisions of the Indenture otherwise permit payment at that time.
41
<PAGE>
By reason of such subordination provisions contained in the Indenture, in
the event of liquidation, receivership, reorganization or insolvency, (I)
creditors of the Company that are holders of Senior Indebtedness may recover
more, ratably, than the Noteholders, (II) trade creditors of the Company that
are not holders of Senior Indebtedness or of Senior Subordinated Indebtedness
(including the Notes) may recover less, ratably, than holders of Senior
Indebtedness and may recover more, ratably, than the holders of Senior
Subordinated Indebtedness, and (III) the Company may be unable to meet its
obligations on the Notes. In addition, as described above, the Notes will be
effectively subordinated, with respect to the Company's Subsidiaries (other than
the Note Guarantors), to the claims of creditors of those Subsidiaries.
CHANGE OF CONTROL
Upon the occurrence after the Issue Date of a Change of Control (as defined
below) and the failure of the Notes to have, on the 30th day after such Change
of Control, a rating of at least BBB- (or equivalent successor rating) by S&P
and a rating of at least Baa3 (or equivalent successor rating) by Moody's (a
"Change of Control Triggering Event"), each Holder will have the right to
require the Company to repurchase all or any part of such Holder's Notes at a
purchase price in cash equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of repurchase (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date); PROVIDED, HOWEVER, that the Company
shall not be obligated to repurchase Notes pursuant to this covenant in the
event that it has exercised its right to redeem all of the Notes as described
under "--Optional Redemption."
The term "Change of Control" means:
(i) any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than one or more Permitted Holders, is or becomes
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of more than 50% of the total voting
power of the Voting Stock of the Company, PROVIDED that so long as the
Company is a Subsidiary of a Parent, no Person shall be deemed to be or
become a "beneficial owner" of more than 50% of the total voting power of
the Voting Stock of the Company unless such Person shall be or become a
"beneficial owner" of more than 50% of the total voting power of the Voting
Stock of such Parent;
(ii) the Company merges or consolidates with or into, or sells or
transfers (in one or a series of related transactions) all or substantially
all of the assets of the Company and its Restricted Subsidiaries to, another
Person (other than one or more Permitted Holders) and any "person" (as
defined in clause (i) above), other than one or more Permitted Holders, is
or becomes the "beneficial owner" (as so defined), directly or indirectly,
of more than 50% of the total voting power of the Voting Stock of the
surviving Person in such merger or consolidation, or the transferee Person
in such sale or transfer of assets, as the case may be, PROVIDED that so
long as such surviving or transferee Person is a Subsidiary of a parent
Person, no Person shall be deemed to be or become a "beneficial owner" of
more than 50% of the total voting power of the Voting Stock of such
surviving or transferee Person unless such Person shall be or become a
"beneficial owner" of more than 50% of the total voting power of the Voting
Stock of such parent Person; or
(iii) during any period of two consecutive years (during which period
the Company has been a party to the Indenture), individuals who at the
beginning of such period were members of the board of directors of the
Company (together with any new members thereof whose election by such board
of directors or whose nomination for election by holders of Capital Stock of
the Company was approved by one or more Permitted Holders or by a vote of a
majority of the members of such board of directors then still in office who
were either members thereof at the beginning of such period or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of such board of directors then in
office.
42
<PAGE>
In the event that, at the time of such Change of Control Triggering Event,
the terms of the Bank Indebtedness restrict or prohibit the repurchase of Notes
pursuant to this covenant, then prior to the mailing of the notice to Holders
provided for in the immediately following paragraph but in any event not later
than 30 days following the date the Company obtains actual knowledge of any
Change of Control Triggering Event (unless the Company has exercised its right
to redeem all the Notes as described under "--Optional Redemption"), the Company
shall (i) repay in full all Bank Indebtedness or offer to repay in full all Bank
Indebtedness and repay the Bank Indebtedness of each lender who has accepted
such offer or (ii) obtain the requisite consent under the agreements governing
the Bank Indebtedness to permit the repurchase of the Notes as provided for in
the immediately following paragraph. The Company shall first comply with the
provisions of the immediately preceding sentence before it shall be required to
repurchase Notes pursuant to the provisions described below. The Company's
failure to comply with such provisions or the provisions of the immediately
following paragraph shall constitute an Event of Default described in clause
(iv) and not in clause (ii) under "--Defaults" below.
Unless the Company has exercised its right to redeem all the Notes as
described under "--Optional Redemption," the Company shall, not later than 30
days following the date the Company obtains actual knowledge of any Change of
Control Triggering Event having occurred, mail a notice to each Holder with a
copy to the Trustee (and publish notice of the offer to purchase the Notes
described below in Luxembourg in accordance with "--Notices") stating: (1) that
a Change of Control Triggering Event has occurred or may occur and that such
Holder has, or upon such occurrence will have, the right to require the Company
to purchase such Holder's Notes at a purchase price in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of purchase (subject to the right of Holders of record on a record date to
receive interest on the relevant interest payment date); (2) the circumstances
and relevant facts and financial information regarding such Change of Control;
(3) the repurchase date (which shall be no earlier than 30 days nor later than
60 days from the date such notice is mailed); (4) the instructions determined by
the Company, consistent with this covenant, that a Holder must follow in order
to have its Notes purchased; and (5) if such notice is mailed prior to the
occurrence of a Change of Control or Change of Control Triggering Event, that
such offer is conditioned on the occurrence of such Change of Control Triggering
Event.
The Company will comply, to the extent applicable, with the requirements of
Section 14(e) of the Exchange Act and any other securities laws or regulations
in connection with the repurchase of Notes pursuant to this covenant. To the
extent that the provisions of any securities laws or regulations conflict with
provisions of this covenant, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under this covenant by virtue thereof.
The Change of Control Triggering Event purchase feature is a result of
negotiations between the Company and the Placement Agents. The Company has no
present plans to engage in a transaction involving a Change of Control, although
it is possible that the Company would decide to do so in the future. Subject to
the limitations discussed below, the Company could, in the future, enter into
certain transactions, including acquisitions, refinancings or recapitalizations,
that would not constitute a Change of Control under the Indenture, but that
could increase the amount of indebtedness outstanding at such time or otherwise
affect the Company's capital structure or credit ratings.
The occurrence of a Change of Control would constitute a default under the
Senior Credit Agreement. Agreements governing future Senior Indebtedness of the
Company may contain prohibitions of certain events that would constitute a
Change of Control or require such Senior Indebtedness to be repurchased or
repaid upon a Change of Control. Moreover, the exercise by the Holders of their
right to require the Company to repurchase the Notes could cause a default under
such agreements, even if the Change of Control itself does not, due to the
financial effect of such repurchase on the Company. Finally, the Company's
ability to pay cash to the Holders upon a repurchase may be limited by the
Company's then existing financial resources. There can be no assurance that
sufficient funds will be available when necessary to make any required
repurchases. As described above under "--Optional Redemption," the
43
<PAGE>
Company also has the right to redeem the Notes at specified prices, in whole or
in part, upon a Change of Control.
The definition of Change of Control includes a phrase relating to the sale
or other transfer of "all or substantially all" of the Company's assets, as such
phrase is used in the Revised Model Business Corporation Act. Although there is
a developing body of case law interpreting the phrase "substantially all," there
is no precise definition of the phrase under applicable law. Accordingly, in
certain circumstances there may be a degree of uncertainty in ascertaining
whether a particular transaction would involve a disposition of "all or
substantially all" of the assets of the Company, and therefore it may be unclear
as to whether a Change of Control has occurred and whether the holders of the
Notes have the right to require the Company to repurchase such Notes.
CERTAIN COVENANTS
The Indenture contains covenants including, among others, the following:
LIMITATION ON INDEBTEDNESS. (a) The Company will not, and will not permit
any Restricted Subsidiary to, Incur any Indebtedness; PROVIDED, HOWEVER, that
the Company or any Note Guarantor may Incur Indebtedness if on the date of the
Incurrence of such Indebtedness, after giving effect to the Incurrence thereof,
the Consolidated Coverage Ratio would be greater than 1.75:1.00 if such
Indebtedness is Incurred prior to June 15, 2001 or 2.00:1.00 if such
Indebtedness is Incurred thereafter.
(b) Notwithstanding the foregoing paragraph (a), the Company and its
Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness Incurred pursuant to the Senior Credit Facility
(including but not limited to Indebtedness in respect of letters of credit
or bankers' acceptances issued or created thereunder) and Indebtedness of
any Foreign Subsidiary Incurred other than under the Senior Credit Facility,
and (without limiting the foregoing), in each case, any Refinancing
Indebtedness in respect thereof, in a maximum principal amount at any time
outstanding not exceeding in the aggregate the amount equal to (A) $1,350.0
million, PLUS (B) the amount, if any, by which the Borrowing Base exceeds
$400.0 million, PLUS (C) in the case of any refinancing of the Senior Credit
Facility or any portion thereof, the aggregate amount of fees, underwriting
discounts, premiums and other costs and expenses incurred in connection with
such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Company or (B)
of the Company or any Restricted Subsidiary to any Restricted Subsidiary;
PROVIDED that any subsequent issuance or transfer of any Capital Stock of
such Restricted Subsidiary to which such Indebtedness is owed, or other
event, that results in such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of such Indebtedness (except to
the Company or a Restricted Subsidiary) will be deemed, in each case, an
Incurrence of such Indebtedness by the issuer thereof;
(iii) Indebtedness represented by the Notes (other than any Additional
Notes), any Indebtedness (other than the Indebtedness described in clauses
(i) or (ii) above) outstanding on the Issue Date and any Refinancing
Indebtedness Incurred in respect of any Indebtedness described in this
clause (iii) or paragraph (a) above;
(iv) Purchase Money Obligations and Capitalized Lease Obligations, and
any Refinancing Indebtedness with respect thereto, in an aggregate principal
amount at any time outstanding not exceeding an amount equal to 3.5% of
Consolidated Total Assets at any time outstanding;
(v) Indebtedness of any Foreign Subsidiary Incurred for working capital
purposes;
(vi)(A) Guarantees by the Company or any Restricted Subsidiary of
Indebtedness or any other obligation or liability of the Company or any
Restricted Subsidiary (other than any Indebtedness
44
<PAGE>
Incurred by the Company or such Restricted Subsidiary, as the case may be,
in violation of the covenant described under "--Limitation on
Indebtedness"), or (B) without limiting the covenant described under
"--Limitation on Liens," Indebtedness of the Company or any Restricted
Subsidiary arising by reason of any Lien granted by or applicable to such
Person securing Indebtedness of the Company or any Restricted Subsidiary
(other than any Indebtedness Incurred by the Company or such Restricted
Subsidiary, as the case may be, in violation of the covenant described under
"-- Limitation on Indebtedness");
(vii) Indebtedness of the Company or any Restricted Subsidiary (A)
arising from the honoring of a check, draft or similar instrument of such
Person drawn against insufficient funds, provided that such Indebtedness is
extinguished within five Business Days of its incurrence, or (B) consisting
of guarantees, indemnities, obligations in respect of earnouts or other
purchase price adjustments, or similar obligations, Incurred in connection
with the acquisition or disposition of any business, assets or Person
(including pursuant to the Strategic Restructuring);
(viii) Indebtedness of the Company or any Restricted Subsidiary in
respect of (A) letters of credit, bankers' acceptances or other similar
instruments or obligations issued, or relating to liabilities or obligations
incurred, in the ordinary course of business (including those issued to
governmental entities in connection with self-insurance under applicable
workers' compensation statutes), or (B) completion guarantees, surety,
judgment, appeal or performance bonds, or other similar bonds, instruments
or obligations, provided, or relating to liabilities or obligations
incurred, in the ordinary course of business, or (C) Hedging Obligations
entered into for bona fide hedging purposes in the ordinary course of
business, or (D) Management Guarantees or (E) the financing of insurance
premiums in the ordinary course of business;
(ix) Indebtedness of a Receivables Subsidiary secured by a Lien on all
or part of the assets disposed of in, or otherwise incurred in connection
with, a Financing Disposition;
(x) Indebtedness of any Person that is assumed by the Company or any
Restricted Subsidiary in connection with its acquisition of assets from such
Person or any Affiliate thereof or is issued and outstanding on or prior to
the date on which such Person was acquired by the Company or any Restricted
Subsidiary or merged or consolidated with or into any Restricted Subsidiary
(other than Indebtedness Incurred to finance, or otherwise in connection
with, such acquisition), PROVIDED that on the date of such acquisition,
merger or consolidation, after giving effect thereto, (X) with respect to
any such Indebtedness of the Company, any Foreign Subsidiary or any Note
Guarantor, (A) the Company could Incur at least $1.00 of additional
Indebtedness pursuant to paragraph (a) above or (B) the Consolidated
Coverage Ratio is greater than it was on such date immediately prior to
giving effect to such acquisition and (Y) with respect to any such
Indebtedness of any Domestic Subsidiary that is not a Note Guarantor, the
Company could Incur at least $1.00 of additional Indebtedness pursuant to
paragraph (a) above; and any Refinancing Indebtedness with respect to any
such Indebtedness;
(xi) Indebtedness of any Restricted Subsidiary in an aggregate principal
amount at any time outstanding for all such Indebtedness not exceeding (A)
an amount equal to 5% of Consolidated Total Assets, provided that either on
the date of Incurrence of such Indebtedness after giving effect thereto, the
Company could Incur at least $1.00 of additional Indebtedness pursuant to
paragraph (a) above, or such Indebtedness is Refinancing Indebtedness in
respect of any such Indebtedness initially so Incurred, or (B) otherwise, an
amount equal to 2.5% of Consolidated Total Assets;
(xii) Indebtedness of the Company or any Restricted Subsidiary in an
amount at any time outstanding not exceeding twice the amount of Excluded
Contributions made after the Issue Date, PROVIDED that the proceeds of such
Indebtedness and the related amount of such Excluded Contributions are used
to finance the acquisition of assets of any Person in a Related Business or
the merger or
45
<PAGE>
consolidation of such a Person into or with the Company or any Restricted
Subsidiary (including but not limited to payment of any related fees and
expenses), or to refinance any such acquisition, merger or consolidation
with such Indebtedness being Incurred for such refinancing within nine
months of the closing of such acquisition, merger or consolidation; and any
Refinancing Indebtedness with respect to any such Indebtedness; and
(xiii) Indebtedness of the Company or any Restricted Subsidiary in an
aggregate principal amount at any time outstanding not exceeding an amount
equal to 5% of Consolidated Total Assets.
(c) For purposes of determining compliance with, and the outstanding
principal amount of any particular Indebtedness Incurred pursuant to and in
compliance with, this covenant, (I) any other obligation of the obligor on such
Indebtedness (or of any other Person who could have Incurred such Indebtedness
under this covenant) arising under any Guarantee, Lien or letter of credit,
bankers' acceptance or other similar instrument or obligation supporting such
Indebtedness shall be disregarded to the extent that such Guarantee, Lien or
letter of credit, bankers' acceptance or other similar instrument or obligation
secures the principal amount of such Indebtedness; (II) in the event that
Indebtedness meets the criteria of more than one of the types of Indebtedness
described in paragraph (b) above, the Company, in its sole discretion, shall
classify such item of Indebtedness and only be required to include the amount
and type of such Indebtedness in one of such clauses; and (III) the amount of
Indebtedness issued at a price that is less than the principal amount thereof
shall be equal to the amount of the liability in respect thereof determined in
accordance with GAAP.
(d) For purposes of determining compliance with any Dollar-denominated
restriction on the Incurrence of Indebtedness denominated in a foreign currency,
the Dollar-equivalent principal amount of such Indebtedness Incurred pursuant
thereto shall be calculated based on the relevant currency exchange rate in
effect on the date that such Indebtedness was Incurred, in the case of term
Indebtedness, or first committed, in the case of revolving credit Indebtedness,
PROVIDED that (X) the Dollar-equivalent principal amount of any such
Indebtedness outstanding on the Issue Date shall be calculated based on the
relevant currency exchange rate in effect on the Issue Date, (Y) if such
Indebtedness is Incurred to refinance other Indebtedness denominated in a
foreign currency, and such refinancing would cause the applicable Dollar-
denominated restriction to be exceeded if calculated at the relevant currency
exchange rate in effect on the date of such refinancing, such Dollar-denominated
restriction shall be deemed not to have been exceeded so long as the principal
amount of such refinancing Indebtedness does not exceed the principal amount of
such Indebtedness being refinanced and (Z) the Dollar-equivalent principal
amount of Indebtedness denominated in a foreign currency and Incurred pursuant
to the Senior Credit Facility shall be calculated based on the relevant currency
exchange rate in effect on, at the Company's option, (i) the Issue Date, (ii)
any date on which any of the respective commitments under the Senior Credit
Facility shall be reallocated between or among facilities or subfacilities
thereunder, or on which such rate is otherwise calculated for any purpose
thereunder, or (iii) the date of such Incurrence. The principal amount of any
Indebtedness Incurred to refinance other Indebtedness, if Incurred in a
different currency from the Indebtedness being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such
respective Indebtedness is denominated that is in effect on the date of such
refinancing.
LIMITATION ON LAYERING. The Company shall not Incur any Indebtedness that
is expressly subordinated in right of payment to any Senior Indebtedness of the
Company, unless such Indebtedness so Incurred ranks PARI PASSU in right of
payment with the Notes, or is subordinated in right of payment to the Notes. No
Note Guarantor shall Incur any Indebtedness that is expressly subordinated in
right of payment to any Guarantor Senior Indebtedness of such Note Guarantor,
unless such Indebtedness so Incurred ranks PARI PASSU in right of payment with
such Note Guarantor's Note Guarantee, or is subordinated in right of payment to
such Note Guarantor's Note Guarantee. Unsecured Indebtedness is not deemed to be
subordinate or junior to secured Indebtedness merely because it is unsecured,
and Indebtedness that is not
46
<PAGE>
guaranteed by a particular Person is not deemed to be subordinate or junior to
Indebtedness that is so guaranteed merely because it is not so guaranteed.
LIMITATION ON RESTRICTED PAYMENTS. (a) The Company shall not, and shall not
permit any Restricted Subsidiary, directly or indirectly, to (I) declare or pay
any dividend or make any distribution on or in respect of its Capital Stock
(including any such payment in connection with any merger or consolidation to
which the Company is a party) except (X) dividends or distributions payable
solely in its Capital Stock (other than Disqualified Stock) and (Y) dividends or
distributions payable to the Company or any Restricted Subsidiary (and, in the
case of any such Restricted Subsidiary making such dividend or distribution, to
other holders of its Capital Stock on no more than a PRO RATA basis, measured by
value), (II) purchase, redeem, retire or otherwise acquire for value any Capital
Stock of the Company held by Persons other than the Company or a Restricted
Subsidiary, (III) purchase, repurchase, redeem, defease or otherwise acquire or
retire for value, prior to scheduled maturity, scheduled repayment or scheduled
sinking fund payment, any Subordinated Obligations (other than a purchase,
redemption, defeasance or other acquisition or retirement for value in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of such acquisition
or retirement) or (IV) make any Investment (other than a Permitted Investment)
in any Person (any such dividend, distribution, purchase, redemption,
repurchase, defeasance, other acquisition or retirement or Investment being
herein referred to as a "Restricted Payment"), if at the time the Company or
such Restricted Subsidiary makes such Restricted Payment and after giving effect
thereto:
(1) a Default shall have occurred and be continuing (or would result
therefrom);
(2) the Company could not incur at least an additional $1.00 of
Indebtedness pursuant to paragraph (a) of the covenant described under
"--Limitation on Indebtedness"; or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments (the amount so expended, if other than in cash, to be as
determined in good faith by the Board of Directors, whose determination
shall be conclusive) declared or made subsequent to the Issue Date and then
outstanding would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued during the period
(treated as one accounting period) from April 25, 1998 to the end of the
most recent fiscal quarter ending prior to the date of such Restricted
Payment for which consolidated financial statements of the Company are
available (or, in case such Consolidated Net Income shall be a negative
number, 100% of such negative number);
(B) the aggregate Net Cash Proceeds, and fair value (as determined in
good faith by the Board of Directors) of property or assets, received (X)
by the Company as capital contributions to the Company after the Issue
Date or from the issuance or sale (other than to a Restricted Subsidiary)
of its Capital Stock (other than Disqualified Stock) after the Issue Date
(other than Excluded Contributions) or (Y) by the Company or any
Restricted Subsidiary from the issuance and sale by the Company or any
Restricted Subsidiary after the Issue Date of Indebtedness that shall
have been converted into or exchanged for Capital Stock of the Company
(other than Disqualified Stock), PLUS the amount of cash, property or
assets (determined as provided above) received by the Company or any
Restricted Subsidiary upon such conversion or exchange;
(C) the aggregate amount equal to the net reduction in Investments in
Unrestricted Subsidiaries resulting from (I) dividends, distributions,
interest payments, return of capital, repayments of Investments or other
transfers of assets to the Company or any Restricted Subsidiary from any
Unrestricted Subsidiary, or (II) the redesignation of any Unrestricted
Subsidiary as a Restricted Subsidiary (valued in each case as provided in
the definition of "Investment"), not to exceed in the case of any such
Unrestricted Subsidiary the aggregate
47
<PAGE>
amount of Investments (other than Permitted Investments) made by the
Company or any Restricted Subsidiary in such Unrestricted Subsidiary
after the Issue Date;
(D) in the case of any disposition or repayment of any Investment
constituting a Restricted Payment (without duplication of any amount
deducted in calculating the amount of Investments at any time outstanding
included in the amount of Restricted Payments), an amount in the
aggregate equal to the lesser of the return of capital, repayment or
other proceeds with respect to all such Investments and the initial
amount of all such Investments; and
(E) the aggregate exercise price of all options attributable to
shares of Capital Stock purchased in the Equity Tender Offer.
(b) The provisions of the foregoing paragraph (a) will not prohibit any of
the following (each, a "Permitted Payment"):
(i) any purchase, redemption, repurchase, defeasance or other
acquisition or retirement of Capital Stock of the Company or Subordinated
Obligations made by exchange (including any such exchange pursuant to the
exercise of a conversion right or privilege in connection with which cash is
paid in lieu of the issuance of fractional shares) for, or out of the
proceeds of the substantially concurrent issuance or sale of, Capital Stock
of the Company (other than Disqualified Stock and other than Capital Stock
issued or sold to a Subsidiary) or a substantially concurrent capital
contribution to the Company; PROVIDED, that the Net Cash Proceeds from such
issuance, sale or capital contribution shall be excluded in subsequent
calculations under clause (3)(B) of the preceding paragraph (a) and shall
not constitute an Excluded Contribution;
(ii) any purchase, redemption, repurchase, defeasance or other
acquisition or retirement of Subordinated Obligations (X) made by exchange
for, or out of the proceeds of the substantially concurrent issuance or sale
of, Indebtedness of the Company or Refinancing Indebtedness Incurred in
compliance with the covenant described under "--Limitation on Indebtedness,"
(Y) from Net Available Cash to the extent permitted by the covenant
described under "--Limitation on Sales of Assets and Subsidiary Stock" or
(Z) to the extent required by the agreement governing such Subordinated
Obligations, following the occurrence of a Change of Control (or other
similar event described therein as a "change of control"), but only if the
Company shall have complied with the covenant described under "--Change of
Control" and, if required, purchased all Notes tendered pursuant to the
offer to repurchase all the Notes required thereby, prior to purchasing or
repaying such Subordinated Obligations;
(iii) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with the preceding paragraph (a);
(iv) Investments in an aggregate amount outstanding at any time not to
exceed the amount of Excluded Contributions (excluding the amount of
Excluded Contributions used to Incur Indebtedness pursuant to clause (xii)
of paragraph (b) of the covenant described under "--Limitation on
Indebtedness");
(v) payments by the Company to repurchase or otherwise acquire Capital
Stock (including any options, warrants or other rights in respect thereof)
from Management Investors (including loans, advances, dividends or
distributions by the Company to a Parent to permit such Parent to make any
such repurchase or other acquisition), such payments, loans, advances,
dividends or distributions not to exceed an amount (net of repayments of any
such loans or advances) equal to (1) $25.0 million, PLUS (2) $3.0 million
multiplied by the number of calendar years that have commenced since the
Issue Date (not to exceed $9.0 million in the aggregate), PLUS (3) the Net
Cash Proceeds received by the Company since the Issue Date from, or as a
capital contribution from, the issuance or sale to Management Investors of
Capital Stock (including any options, warrants or other rights in respect
thereof), to the
48
<PAGE>
extent such Net Cash Proceeds are not included in any calculation under
clause (3)(B)(x) of the preceding paragraph (a) and do not constitute an
Excluded Contribution;
(vi) the payment by the Company of (or loans, advances, dividends or
distributions by the Company to a Parent to pay) dividends on the common
stock or equity of the Company (or such Parent) following a public offering
of such common stock or equity, in an amount not to exceed in any fiscal
year 6% of the aggregate gross proceeds received by the Company in or from
such public offering;
(vii) Restricted Payments (including loans or advances) in an aggregate
amount outstanding at any time not to exceed $20.0 million (net of
repayments of any such loans or advances);
(viii) payments by the Company or any Restricted Subsidiary to satisfy
obligations under the CDR Agreements; and Permitted Parent Payments;
(ix) payments by the Company, or loans, advances, dividends or
distributions by the Company to a Parent to make payments, to holders of
Capital Stock of the Company or such Parent in lieu of issuance of
fractional shares of such Capital Stock, not to exceed $100,000 in the
aggregate outstanding at any time;
(x) dividends or other distributions of Capital Stock, Indebtedness or
other securities of Unrestricted Subsidiaries;
(xi) the Transactions; and
(xii) any purchase, redemption, retirement or other acquisition of
Capital Stock (X) that is used as consideration in making any Investment
that involves an acquisition of a Person, business or assets and that is
permitted as a Restricted Payment Transaction or (Y) deemed to occur upon
the exercise of options if such Capital Stock represents a portion of the
exercise price thereof;
PROVIDED, that (A) in the case of clauses (iii), (vi), (vii) and (ix), the net
amount of any such Permitted Payment shall be included in subsequent
calculations of the amount of Restricted Payments, (B) in the case of clause
(v), at the time of any calculation of the amount of Restricted Payments, the
net amount of Permitted Payments that have then actually been made under clause
(v) that is in excess of 50% of the total amount of Permitted Payments then
permitted under clause (v) shall be included in such calculation of the amount
of Restricted Payments, (C) in all cases other than pursuant to clauses (A) and
(B) immediately above, the net amount of any such Permitted Payment shall be
excluded in subsequent calculations of the amount of Restricted Payments and (D)
solely with respect to clause (vii), no Default or Event of Default shall have
occurred or be continuing at the time of such Permitted Payment after giving
effect thereto.
LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM RESTRICTED
SUBSIDIARIES. The Company will not, and will not permit any Restricted
Subsidiary to, create or otherwise cause to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (I) pay dividends or make any other distributions on its Capital
Stock or pay any Indebtedness or other obligations owed to the Company, (II)
make any loans or advances to the Company or (III) transfer any of its property
or assets to the Company, except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into
on the Issue Date (including, without limitation, the Senior Credit
Facility), the Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to
Indebtedness or Capital Stock of a Person, which Person is acquired by or
merged or consolidated with or into the Company or any Restricted
Subsidiary, or which agreement or instrument is assumed by the Company or
any Restricted Subsidiary in connection with an acquisition of assets from
such Person, as in effect at the time of such acquisition, merger or
consolidation (except to the extent that such Indebtedness was
49
<PAGE>
incurred to finance, or otherwise in connection with, such acquisition,
merger or consolidation), PROVIDED that for purposes of this clause (2), if
another Person is the Successor Company, any Subsidiary thereof or agreement
or instrument of such Person or any such Subsidiary shall be deemed acquired
or assumed, as the case may be, by the Company or a Restricted Subsidiary,
as the case may be, when such Person becomes the Successor Company;
(3) pursuant to an agreement or instrument (a "Refinancing Agreement")
effecting a refinancing of Indebtedness Incurred pursuant to, or that
otherwise extends, renews, refunds, refinances or replaces, an agreement or
instrument referred to in clause (1) or (2) of this covenant or this clause
(3) (an "Initial Agreement") or contained in any amendment, supplement or
other modification to an Initial Agreement (an "Amendment"); PROVIDED,
HOWEVER, that the encumbrances and restrictions contained in any such
Refinancing Agreement or Amendment are not materially less favorable to the
Holders of the Notes taken as a whole than encumbrances and restrictions
contained in the Initial Agreement or Initial Agreements to which such
Refinancing Agreement or Amendment relates (as determined in good faith by
the Company);
(4) (A) that restricts in a customary manner the subletting, assignment
or transfer of any property or asset that is subject to a lease, license or
similar contract, or the assignment or transfer of any lease, license or
other contract, (B) by virtue of any transfer of, agreement to transfer,
option or right with respect to, or Lien on, any property or assets of the
Company or any Restricted Subsidiary not otherwise prohibited by the
Indenture, (C) contained in mortgages, pledges or other security agreements
securing Indebtedness of a Restricted Subsidiary to the extent restricting
the transfer of the property or assets subject thereto, (D) pursuant to
customary provisions restricting dispositions of real property interests set
forth in any reciprocal easement agreements of the Company or any Restricted
Subsidiary, (E) pursuant to Purchase Money Obligations that impose
encumbrances or restrictions on the property or assets so acquired, (F) on
cash or other deposits or net worth imposed by customers under agreements
entered into in the ordinary course of business, (G) pursuant to customary
provisions contained in agreements and instruments entered into in the
ordinary course of business (including but not limited to leases and joint
venture and other similar agreements entered into in the ordinary course of
business), or (H) that arises or is agreed to in the ordinary course of
business and does not detract from the value of property or assets of the
Company or any Restricted Subsidiary in any manner material to the Company
or such Restricted Subsidiary;
(5) with respect to a Restricted Subsidiary (or any of its property or
assets) imposed pursuant to an agreement entered into for the direct or
indirect sale or disposition of all or substantially all the Capital Stock
or assets of such Restricted Subsidiary (or the property or assets that are
subject to such restriction) pending the closing of such sale or
disposition;
(6) required by any applicable law, rule, regulation or order or by any
regulatory authority having jurisdiction over the Company or any Restricted
Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any
Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant
to the provisions of the covenant described under "--Limitation on
Indebtedness," if the Company determines that such encumbrance or
restriction will not cause the Company not to have the funds necessary to
pay the principal of or interest on the Notes, (B) relating to any sale of
receivables by a Foreign Subsidiary or (C) relating to Indebtedness of or a
Financing Disposition to or by any Receivables Entity.
LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK. (a) The Company will
not, and will not permit any Restricted Subsidiary to, make any Asset
Disposition unless
(i) the Company or such Restricted Subsidiary receives consideration
(including by way of relief from, or by any other Person assuming
responsibility for, any liabilities, contingent or otherwise) at the time of
such Asset Disposition at least equal to the fair market value of the shares
and assets subject
50
<PAGE>
to such Asset Disposition, as such fair market value may be determined (and
shall be determined, to the extent such Asset Disposition involves aggregate
consideration in excess of $10.0 million) in good faith by the Board of
Directors, whose determination shall be conclusive (including as to the
value of all noncash consideration),
(ii) in the case of any Asset Disposition having a fair market value of
$10.0 million or more, at least 75% of the consideration therefor
(excluding, in the case of an Asset Disposition of assets, any consideration
by way of relief from, or by any other Person assuming responsibility for,
any liabilities, contingent or otherwise, that are not Indebtedness)
received by the Company or such Restricted Subsidiary is in the form of
cash, and PROVIDED that this clause (ii) shall not apply to any Asset
Disposition involving assets that accounted for less than two percent of
Consolidated EBITDA during the period of the most recent four consecutive
fiscal quarters ending prior to the date of such Asset Disposition for which
consolidated financial statements of the Company are available, and
(iii) an amount equal to 100% of the Net Available Cash from such Asset
Disposition is applied by the Company (or any Restricted Subsidiary, as the
case may be) as follows:
(A) FIRST, either (X) to the extent the Company elects (or is
required by the terms of any Senior Indebtedness or Indebtedness of a
Restricted Subsidiary), to prepay, repay or purchase Senior Indebtedness
or such Indebtedness of a Restricted Subsidiary (in each case other than
Indebtedness owed to the Company or a Restricted Subsidiary) within 365
days after the date of such Asset Disposition, or (Y) to the extent the
Company or such Restricted Subsidiary elects, to reinvest in Additional
Assets (including by means of an investment in Additional Assets by a
Restricted Subsidiary with Net Available Cash received by the Company or
another Restricted Subsidiary) within 365 days from the date of such
Asset Disposition, or, if such reinvestment in Additional Assets is a
project authorized by the Board of Directors that will take longer than
such 365 days to complete, the period of time necessary to complete such
project;
(B) SECOND, to the extent of the balance of such Net Available Cash
after application in accordance with clause (A) above (such balance, the
"Excess Proceeds"), to make an offer to purchase Notes and (to the extent
the Company or such Restricted Subsidiary elects, or is required by the
terms thereof) to purchase, redeem or repay any other Senior Subordinated
Indebtedness or Guarantor Senior Subordinated Indebtedness, pursuant and
subject to the conditions of the Indenture and the agreements governing
such other Indebtedness; and
(C) THIRD, to the extent of the balance of such Net Available Cash
after application in accordance with clauses (A) and (B) above, to fund
(to the extent consistent with any other applicable provision of the
Indenture) any general corporate purpose (including but not limited to
the repurchase, repayment or other acquisition or retirement of any
Subordinated Obligations);
PROVIDED, HOWEVER, that in connection with any prepayment, repayment or purchase
of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such
Restricted Subsidiary will retire such Indebtedness and will cause the related
loan commitment (if any) to be permanently reduced in an amount equal to the
principal amount so prepaid, repaid or purchased.
Notwithstanding the foregoing provisions of this covenant, the Company and
the Restricted Subsidiaries shall not be required to apply any Net Available
Cash in accordance with this covenant except to the extent that the aggregate
Net Available Cash from all Asset Dispositions that is not applied in accordance
with this covenant exceeds $15.0 million. If the aggregate principal amount of
Notes, Senior Subordinated Indebtedness and Guarantor Senior Subordinated
Indebtedness validly tendered and not withdrawn (or otherwise subject to
purchase, redemption or repayment) in connection with an offer pursuant to
clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be
apportioned between the Notes and such Senior Subordinated Indebtedness and
Guarantor Senior Subordinated Indebtedness, with the
51
<PAGE>
portion of the Excess Proceeds payable in respect of the Notes to equal the
lesser of (X) the Excess Proceeds amount multiplied by a fraction, the numerator
of which is the outstanding principal amount of the Notes and the denominator of
which is the sum of the outstanding principal amount of the Notes and the
outstanding principal amount of the relevant Senior Subordinated Indebtedness
and Guarantor Senior Subordinated Indebtedness, and (Y) the aggregate principal
amount of Notes validly tendered and not withdrawn.
For the purposes of clause (ii) of paragraph (a) above, the following are
deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the
assumption of Indebtedness of the Company (other than Disqualified Stock of the
Company) or any Restricted Subsidiary and the release of the Company or such
Restricted Subsidiary from all liability on payment of such Indebtedness in
connection with such Asset Disposition, (3) Indebtedness of any Restricted
Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset
Disposition, to the extent that the Company and each other Restricted Subsidiary
is released from any Guarantee of payment of such Indebtedness in connection
with such Asset Disposition, (4) securities received by the Company or any
Restricted Subsidiary from the transferee that are converted by the Company or
such Restricted Subsidiary into cash and (5) consideration consisting of
Indebtedness of the Company or any Restricted Subsidiary.
(b) In the event of an Asset Disposition that requires the purchase of Notes
pursuant to clause (iii)(B) of paragraph (a) above, the Company will be required
to purchase Notes tendered pursuant to an offer by the Company for the Notes
(the "Offer") at a purchase price of 100% of their principal amount plus accrued
and unpaid interest to the purchase date in accordance with the procedures
(including prorating in the event of oversubscription) set forth in the
Indenture. If the aggregate purchase price of the Notes tendered pursuant to the
Offer is less than the Net Available Cash allotted to the purchase of Notes, the
remaining Net Available Cash will be available to the Company for use in
accordance with clause (iii)(B) of paragraph (a) above (to repay Senior
Subordinated Indebtedness or Guarantor Senior Subordinated Indebtedness) or
clause (iii)(C) of paragraph (a) above. The Company shall not be required to
make an Offer for Notes pursuant to this covenant if the Net Available Cash
available therefor (after application of the proceeds as provided in clause
(iii)(A) of paragraph (a) above) is less than $15.0 million for any particular
Asset Disposition (which lesser amounts shall be carried forward for purposes of
determining whether an Offer is required with respect to the Net Available Cash
from any subsequent Asset Disposition).
(c) The Company will comply, to the extent applicable, with the requirements
of Section 14(e) of the Exchange Act and any other securities laws or
regulations in connection with the repurchase of Notes pursuant to this
covenant. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this covenant, the Company will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under this covenant by virtue thereof.
LIMITATION ON TRANSACTIONS WITH AFFILIATES. (a) The Company will not, and
will not permit any Restricted Subsidiary to, directly or indirectly, enter into
or conduct any transaction or series of related transactions (including the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any Affiliate of the Company (an "Affiliate Transaction") unless
(I) the terms of such Affiliate Transaction are not materially less favorable to
the Company or such Restricted Subsidiary, as the case may be, than those that
could be obtained at the time in a transaction with a Person who is not such an
Affiliate and (II) if such Affiliate Transaction involves aggregate
consideration in excess of $10.0 million, the terms of such Affiliate
Transaction have been approved by a majority of the Disinterested Directors. For
purposes of this paragraph, any Affiliate Transaction shall be deemed to have
satisfied the requirements set forth in this paragraph if (X) such Affiliate
Transaction is approved by a majority of the Disinterested Directors or (Y) in
the event there are no Disinterested Directors, a fairness opinion is provided
by a nationally recognized appraisal or investment banking firm with respect to
such Affiliate Transaction.
52
<PAGE>
(b) The provisions of the preceding paragraph (a) will not apply to:
(i) any Restricted Payment Transaction,
(ii) (1) the entering into, maintaining or performance of any employment
contract, collective bargaining agreement, benefit plan, program or
arrangement, related trust agreement or any other similar arrangement for or
with any employee, officer or director heretofore or hereafter entered into
in the ordinary course of business, including vacation, health, insurance,
deferred compensation, severance, retirement, savings or other similar
plans, programs or arrangements, (2) the payment of compensation,
performance of indemnification or contribution obligations, or any issuance,
grant or award of stock, options, other equity-related interests or other
securities, to employees, officers or directors in the ordinary course of
business, (3) the payment of fees to directors of the Company or any of its
Subsidiaries, (4) any transaction with an officer or director in the
ordinary course of business not involving more than $250,000 in any one
case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary, or
any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in
existence on the Issue Date, and any payments made pursuant thereto,
(v) execution, delivery and performance of the CDR Agreements, including
(1) payment to CDR or any Affiliate of CDR of a fee of $15.0 million plus
out-of-pocket expenses in connection with the Transactions, and (2) payment
to CDR or any Affiliate of CDR of fees of up to $1.0 million in any fiscal
year plus all out-of-pocket expenses incurred by CDR or any such Affiliate
in connection with its performance of management consulting, monitoring,
financial advisory or other services with respect to the Company and its
Restricted Subsidiaries,
(vi) the Transactions, all transactions in connection therewith
(including but not limited to the financing thereof), and all fees or
expenses paid or payable in connection with the Transactions,
(vii)any transaction in the ordinary course of business on terms not
materially less favorable to the Company or the relevant Restricted
Subsidiary than those that could be obtained at the time in a transaction
with a Person who is not an Affiliate of the Company, and
(viii) any transaction in the ordinary course of business, or approved by a
majority of the Board of Directors, between the Company or any Restricted
Subsidiary and any Affiliate of the Company controlled by the Company that
is a joint venture or similar entity.
LIMITATION ON LIENS. The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create or permit to exist any
Lien (other than Permitted Liens) on any of its property or assets (including
Capital Stock of any other Person), whether owned on the Issue Date or
thereafter acquired, securing any Indebtedness of the Company or any Note
Guarantor that by its terms is expressly subordinated in right of payment to or
ranks PARI PASSU in right of payment with the Notes or such Note Guarantor's
Note Guarantee (the "Initial Lien"), unless contemporaneously therewith
effective provision is made to secure the Indebtedness due under the Indenture
and the Notes or, in respect of Liens on any Restricted Subsidiary's property or
assets, any Note Guarantee of such Restricted Subsidiary, equally and ratably
with such obligation for so long as such obligation is so secured by such
Initial Lien. Any such Lien thereby created in favor of the Notes or any such
Note Guarantee will be automatically and unconditionally released and discharged
upon (I) the release and discharge of the Initial Lien to which it relates, or
(II) any sale, exchange or transfer to any Person (other than a Restricted
Subsidiary or the Company) of the property or assets secured by such Initial
Lien, or of all of the Capital Stock held by the Company or any Restricted
Subsidiary in, or all or substantially all the assets of, any Restricted
Subsidiary creating such Lien.
53
<PAGE>
FUTURE NOTE GUARANTORS. On the Issue Date, the Company will cause each
Domestic Subsidiary that then guarantees payment by the Company of Bank
Indebtedness of the Company to guarantee payment of the Notes. In addition,
after the Issue Date, the Company will cause each Material Domestic Subsidiary
that guarantees payment by the Company of Bank Indebtedness to execute and
deliver to the Trustee a supplemental indenture or other instrument pursuant to
which such Subsidiary will guarantee payment of the Notes, whereupon such
Subsidiary will become a Note Guarantor for all purposes under the Indenture. In
addition, the Company may cause any Subsidiary that is not a Note Guarantor so
to guarantee payment of the Notes and become a Note Guarantor (any such Note
Guarantor being herein called a "Voluntary Note Guarantor").
Each Note Guarantor, as primary obligor and not merely as surety, will
jointly and severally, irrevocably and fully and unconditionally Guarantee, on a
senior subordinated basis, the punctual payment when due, whether at Stated
Maturity, by acceleration or otherwise, of all monetary obligations of the
Company under the Indenture and the Notes, whether for principal of or interest
on the Notes, expenses, indemnification or otherwise (all such obligations
guaranteed by such Note Guarantors being herein called the "Guaranteed
Obligations"). Such Note Guarantor will agree to pay, in addition to the amount
stated above, any and all reasonable out-of-pocket expenses (including
reasonable counsel fees and expenses) incurred by the Trustee or the Holders in
enforcing any rights under its Note Guarantee.
The obligations of each Note Guarantor will be limited to the maximum
amount, as will, after giving effect to all other contingent and fixed
liabilities of such Note Guarantor, result in the obligations of such Note
Guarantor under the Note Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under applicable law, or being void or unenforceable under
applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
Each such Note Guarantee shall be a continuing Guarantee and shall (I)
remain in full force and effect until payment in full of the principal amount of
all outstanding Notes (whether by payment at maturity, purchase, redemption,
defeasance, retirement or other acquisition) and all other Guaranteed
Obligations then due and owing, unless earlier terminated as described below,
(II) be binding upon such Note Guarantor and (III) inure to the benefit of and
be enforceable by the Trustee, the Holders and their permitted successors,
transferees and assigns.
Notwithstanding the preceding paragraph, any Note Guarantor will
automatically and unconditionally be released from all obligations under its
Note Guarantee, and such Note Guarantee shall thereupon terminate and be
discharged and of no further force or effect, (I) concurrently with any sale or
disposition (by merger or otherwise) of any Note Guarantor or any interest
therein in accordance with the terms of the Indenture (including the covenant
described under "--Certain Covenants--Limitation on Sales of Assets and
Subsidiary Stock") by the Company or a Restricted Subsidiary, following which
such Note Guarantor is no longer a Restricted Subsidiary of the Company, (II)
pursuant to the terms of its Note Guarantee (in the case of any Voluntary Note
Guarantor), (III) at any time that such Note Guarantor is released from all of
its obligations under all of its Guarantees of payment by the Company of Bank
Indebtedness of the Company, (IV) upon the merger or consolidation of any Note
Guarantor with and into the Company or another Note Guarantor that is the
surviving Person in such merger or consolidation, (V) upon legal or covenant
defeasance of the Company's obligations, or satisfaction and discharge of the
Indenture, and (VI) subject to customary contingent reinstatement provisions,
upon payment in full of the aggregate principal amount of all Notes then
outstanding and all other Guaranteed Obligations then due and owing. In
addition, the Company will have the right, upon 30 days' notice to the Trustee,
to cause any Voluntary Note Guarantor to be unconditionally released from all
obligations under its Note Guarantee, and such Note Guarantee shall thereupon
terminate and be discharged and of no further force or effect. Upon any such
occurrence specified in this paragraph, the Trustee shall execute any documents
reasonably required in order to evidence such release, discharge and termination
in respect of such Note Guarantee.
54
<PAGE>
Neither the Company nor any such Note Guarantor shall be required to make a
notation on the Notes to reflect any such Guarantee or any such release,
termination or discharge.
SEC REPORTS. Notwithstanding that the Company may not be required to be or
remain subject to the reporting requirements of Section 13(a) or 15(d) of the
Exchange Act, the Company will file with the SEC (unless such filing is not
permitted under the Exchange Act or by the SEC), so long as Notes are
outstanding, the quarterly and annual reports, information, documents and other
reports that the Company is required to file with the Commission pursuant to
such Section 13(a) or 15(d) or would be so required to file if the Company were
so subject. The Company will also, within 15 days after the date on which the
Company was so required to file or would be so required to file if the Company
were so subject, transmit by mail to all Holders, as their names and addresses
appear in the Note Register, and to the Trustee copies of any such information,
documents and reports (without exhibits) so required to be filed. The Company
will be deemed to have satisfied such requirements if a Parent files and
provides reports, documents and information of the types otherwise so required,
in each case within the applicable time periods, and the Company is not required
to file such reports, documents and information separately under the applicable
rules and regulations of the SEC (after giving effect to any exemptive relief)
because of the filings by such Parent. The Company also will comply with the
other provisions of TIA Section 314(a). All such reports sent to Holders will be
available at the office of the Luxembourg Paying Agent.
MERGER AND CONSOLIDATION
The Company will not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all its assets to, any Person, unless:
(I) the resulting, surviving or transferee Person (the "Successor Company") will
be a Person organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and the Successor Company
(if not the Company) will expressly assume all the obligations of the Company
under the Notes and the Indenture by executing and delivering to the Trustee a
supplemental indenture or one or more other documents or instruments in form
reasonably satisfactory to the Trustee; (II) immediately after giving effect to
such transaction (and treating any Indebtedness that becomes an obligation of
the Successor Company or any Restricted Subsidiary as a result of such
transaction as having been Incurred by the Successor Company or such Restricted
Subsidiary at the time of such transaction), no Default will have occurred and
be continuing; (III) immediately after giving effect to such transaction, either
(A) the Successor Company could Incur at least $1.00 of additional Indebtedness
pursuant to paragraph (a) of the covenant described under "--Certain
Covenants--Limitation on Indebtedness," or (B) the Consolidated Coverage Ratio
of the Successor Company would equal or exceed the Consolidated Coverage Ratio
of the Company immediately prior to giving effect to such transaction; (IV) each
Note Guarantor (other than any party to any such consolidation or merger) shall
have delivered a supplemental indenture or other document or instrument in form
reasonably satisfactory to the Trustee, confirming its Note Guarantee; and (V)
the Company will have delivered to the Trustee an Officer's Certificate and an
Opinion of Counsel, each to the effect that such consolidation, merger or
transfer complies with the provisions described in this paragraph, PROVIDED that
(X) in giving such opinion such counsel may rely on an Officer's Certificate as
to compliance with the foregoing clauses (ii) and (iii) and as to any matters of
fact, and (Y) no Opinion of Counsel will be required for a consolidation, merger
or transfer described in the last paragraph of this covenant. Any Indebtedness
that becomes an obligation of the Company or any Restricted Subsidiary (or that
is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted
Subsidiary) as a result of any such transaction undertaken in compliance with
this covenant, and any Refinancing Indebtedness with respect thereto, shall be
deemed to have been Incurred in compliance with the covenant described under
"--Certain Covenants--Limitation on Indebtedness."
The Successor Company will succeed to, and be substituted for, and may
exercise every right and power of, the Company under the Indenture, and
thereafter the predecessor Company shall be relieved of all obligations and
covenants under this Agreement.
55
<PAGE>
Clauses (ii) and (iii) of the first paragraph of this "Merger and
Consolidation" section will not apply to any transaction in which (1) any
Restricted Subsidiary consolidates with, merges into or transfers all or part of
its assets to the Company or (2) the Company consolidates or merges with or into
or transfers all or substantially all its assets to (X) an Affiliate
incorporated or organized for the purpose of reincorporating or reorganizing the
Company in another jurisdiction or changing its legal structure to an entity
other than a corporation (or, if the Company is then not a corporation, to a
corporation) or (Y) a Restricted Subsidiary of the Company so long as all assets
of the Company and the Restricted Subsidiaries immediately prior to such
transaction (other than Capital Stock of such Restricted Subsidiary) are owned
by such Restricted Subsidiary and its Restricted Subsidiaries immediately after
the consummation thereof.
DEFAULTS
An Event of Default is defined in the Indenture as (I) a default in any
payment of interest on any Note when due, continued for 30 days, whether or not
such payment is prohibited by the provisions described under "--Ranking" above,
(II) a default in the payment of principal of any Note when due, whether at its
Stated Maturity, upon optional redemption, upon required repurchase, upon
declaration or otherwise, whether or not such payment is prohibited by the
provisions described under "--Ranking" above, (III) the failure by the Company
to comply for 30 days after notice with its obligations under the covenant
described under "--Merger and Consolidation" above, (IV) the failure by the
Company to comply for 30 days after notice with any of its obligations under the
covenant described under "--Change of Control" above (other than a failure to
purchase Notes), (V) the failure by the Company to comply for 60 days after
notice with its other agreements contained in the Notes or the Indenture, (VI)
the failure by the Company or any Significant Subsidiary to pay any issue or
issues of Indebtedness within any applicable grace period after final maturity
or the acceleration of any such Indebtedness by the holders thereof because of a
default, if the total amount of such Indebtedness so unpaid or accelerated
exceeds $25.0 million or its foreign currency equivalent (the "cross
acceleration provision"), (VII) certain events of bankruptcy, insolvency or
reorganization of the Company or a Significant Subsidiary (the "bankruptcy
provisions"), (VIII) the rendering of any judgment or decree for the payment of
money in an amount (net of any insurance or indemnity payments actually received
in respect thereof prior to or within 90 days from the entry thereof, or to be
received in respect thereof in the event any appeal thereof shall be
unsuccessful) in excess of $25.0 million or its foreign currency equivalent
against the Company or a Significant Subsidiary that is not discharged, or
bonded or insured by a third Person, if such judgment or decree remains
outstanding for a period of 90 days following such judgment or decree and is not
discharged, waived or stayed (the "judgment default provision") or (IX) the
failure of any Note Guarantee by a Note Guarantor that is a Significant
Subsidiary to be in full force and effect (except as contemplated by the terms
thereof or of the Indenture) or the denial or disaffirmation in writing by any
Note Guarantor that is a Significant Subsidiary of its obligations under the
Indenture or any Note Guarantee, if such Default continues for 10 days.
The foregoing will constitute Events of Default whatever the reason for any
such Event of Default and whether it is voluntary or involuntary or is effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body.
However, a Default under clause (iii), (iv) or (v) will not constitute an
Event of Default until the Trustee or the Holders of at least 25% in principal
amount of the outstanding Notes notify the Company of the Default and the
Company does not cure such Default within the time specified in such clause
after receipt of such notice.
If an Event of Default (other than a Default relating to certain events of
bankruptcy, insolvency or reorganization of the Company) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least a
majority in principal amount of the outstanding Notes by notice to the Company
and the Trustee, may declare the principal of and accrued but unpaid interest on
all the Notes to be due and
56
<PAGE>
payable, PROVIDED that so long as any Designated Senior Indebtedness shall be
outstanding, such acceleration shall not be effective until the earlier to occur
of (X) five Business Days following delivery of a written notice of such
acceleration of the Notes to the Company and the holders of all Designated
Senior Indebtedness or each Representative thereof and (Y) the acceleration of
any Designated Senior Indebtedness. Upon the effectiveness of such a
declaration, such principal and interest will be due and payable immediately.
Notwithstanding the foregoing, if an Event of Default relating to certain events
of bankruptcy, insolvency or reorganization of the Company occurs and is
continuing, the principal of and accrued interest on all the Notes will become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders. Under certain circumstances, the Holders of a
majority in principal amount of the outstanding Notes may rescind any such
acceleration with respect to the Notes and its consequences.
Notwithstanding the foregoing, in the event of a declaration of acceleration
in respect of the Notes because an Event of Default specified in clause (vi)
above shall have occurred and be continuing, such declaration of acceleration of
the Notes and such Event of Default and all consequences thereof (including
without limitation any acceleration or resulting payment default) shall be
annulled, waived and rescinded, automatically and without any action by the
Trustee or the Holders, and be of no further effect, if within 60 days after
such Event of Default arose (X) the Indebtedness that is the basis for such
Event of Default has been discharged, or (Y) the holders thereof have rescinded
or waived the acceleration, notice or action (as the case may be) giving rise to
such Event of Default, or (Z) the default in respect of such Indebtedness that
is the basis for such Event of Default has been cured.
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default occurs and is continuing, the Trustee will
be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense. Except to enforce the right to receive payment of
principal, premium (if any) or interest when due, no Holder may pursue any
remedy with respect to the Indenture or the Notes unless (I) such Holder has
previously given the Trustee written notice that an Event of Default is
continuing, (II) Holders of at least 25% in principal amount of the outstanding
Notes have requested the Trustee in writing to pursue the remedy, (III) such
Holders have offered the Trustee reasonable security or indemnity against any
loss, liability or expense, (IV) the Trustee has not complied with such request
within 60 days after the receipt of the request and the offer of security or
indemnity and (V) the Holders of a majority in principal amount of the
outstanding Notes have not given the Trustee a direction inconsistent with such
request within such 60-day period. Subject to certain restrictions, the Holders
of a majority in principal amount of the outstanding Notes are given the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction that conflicts
with law or the Indenture or that the Trustee determines is unduly prejudicial
to the rights of any other Holder or that would involve the Trustee in personal
liability. Prior to taking any action under the Indenture, the Trustee will be
entitled to indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such action.
The Indenture provides that if a Default occurs and is continuing and is
known to the Trustee, the Trustee must mail to each Holder notice of the Default
within 90 days after it occurs. Except in the case of a Default in the payment
of principal of, or premium (if any) or interest on, any Note, the Trustee may
withhold notice if and so long as a committee of its Trust Officers in good
faith determines that withholding notice is in the interests of the Noteholders.
In addition, the Company is required to deliver to the Trustee, within 120 days
after the end of each fiscal year, a certificate indicating whether the signers
thereof know of any Default that occurred during the previous year. The Company
also is required to deliver to the Trustee, within 30 days after the occurrence
thereof, written notice of any event that would constitute certain Defaults,
their status and what action the Company is taking or proposes to take in
respect thereof.
57
<PAGE>
AMENDMENTS AND WAIVERS
Subject to certain exceptions, the Indenture may be amended with the consent
of the Holders of a majority in principal amount of the Notes then outstanding
and any past default or compliance with any provisions may be waived with the
consent of the Holders of a majority in principal amount of the Notes then
outstanding (including in each case, consents obtained in connection with a
tender offer or exchange offer for Notes). However, without the consent of each
Holder of an outstanding Note affected, no amendment or waiver may (I) reduce
the principal amount of Notes whose Holders must consent to an amendment or
waiver, (II) reduce the rate of or extend the time for payment of interest on
any Note, (III) reduce the principal of or extend the Stated Maturity of any
Note, (IV) reduce the premium payable upon the redemption of any Note or change
the date on which any Note may be redeemed as described under "--Optional
Redemption" above, (V) make any Note payable in money other than that stated in
the Note, (VI) make any change to the subordination provisions of the Indenture
that adversely affects the rights of any Holder in any material respect, (VII)
impair the right of any Holder to receive payment of principal of and interest
on such Holder's Notes on or after the due dates therefor or to institute suit
for the enforcement of any payment on or with respect to such Holder's Notes or
(VIII) make any change in the amendment or waiver provisions described in this
sentence.
Without the consent of any Holder, the Company, the Trustee and (as
applicable) any Note Guarantor may amend the Indenture to cure any ambiguity,
omission, defect or inconsistency, to provide for the assumption by a successor
of the obligations of the Company under the Indenture, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to add
Guarantees with respect to the Notes, to secure the Notes, to confirm and
evidence the release, termination or discharge of any Guarantee or Lien with
respect to or securing the Notes when such release, termination or discharge is
provided for under the Indenture, to add to the covenants of the Company for the
benefit of the Noteholders or to surrender any right or power conferred upon the
Company, to provide that any Indebtedness that becomes or will become an
obligation of the Successor Company or a Note Guarantor pursuant to a
transaction governed by the provisions described under "--Merger and
Consolidation" (and that is not a Subordinated Obligation) is Senior
Subordinated Indebtedness or Guarantor Senior Subordinated Indebtedness for
purposes of this Indenture, to provide for or confirm the issuance of Additional
Notes, to make any change that does not adversely affect the rights of any
Holder, or to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the TIA or otherwise. However, no amendment
may be made to the subordination provisions of the Indenture that adversely
affects the rights of any holder of Senior Indebtedness then outstanding (which
Senior Indebtedness has been previously designated in writing by the Company to
the Trustee for this purpose) unless the holders of such Senior Indebtedness (or
any group or representative thereof authorized to give a consent) consent to
such change.
The consent of the Noteholders is not necessary under the Indenture to
approve the particular form of any proposed amendment or waiver. It is
sufficient if such consent approves the substance of the proposed amendment or
waiver. Until an amendment or waiver becomes effective, a consent to it by a
Noteholder is a continuing consent by such Noteholder and every subsequent
Holder of all or part of the related Note. Any such Noteholder or subsequent
holder may revoke such consent as to its Note by written notice to the Trustee
or the Company, received thereby before the date on which the Company certifies
to the Trustee that the Holders of the requisite principal amount of Notes have
consented to such amendment or waiver. After an amendment or waiver under the
Indenture becomes effective, the Company is required to mail to Noteholders a
notice briefly describing such amendment or waiver. However, the failure to give
such notice to all Noteholders, or any defect therein, will not impair or affect
the validity of the amendment or waiver.
58
<PAGE>
DEFEASANCE
The Company at any time may terminate all its obligations under the Notes
and the Indenture ("legal defeasance"), except for certain obligations,
including those relating to the defeasance trust and obligations to register the
transfer or exchange of the Notes, to replace mutilated, destroyed, lost or
stolen Notes and to maintain a registrar and paying agent in respect of the
Notes. The Company at any time may terminate its obligations under certain
covenants under the Indenture, including the covenants described under
"--Certain Covenants" and "--Change of Control," the operation of the default
provisions relating to such covenants described under "--Defaults" above, the
operation of the cross acceleration provision, the bankruptcy provisions with
respect to Subsidiaries and the judgment default provision described under
"--Defaults" above, and the limitations contained in clauses (iii), (iv) and (v)
under "--Merger and Consolidation" above ("covenant defeasance"). If the Company
exercises its legal defeasance option or its covenant defeasance option, each
Note Guarantor will be released from all of its obligations with respect to its
Note Guarantee.
The Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option. If the Company exercises its
legal defeasance option, payment of the Notes may not be accelerated because of
an Event of Default with respect thereto. If the Company exercises its covenant
defeasance option, payment of the Notes may not be accelerated because of an
Event of Default specified in clause (iv), (v) (as it relates to the covenants
described under "--Certain Covenants" above), (vi), (vii) (but only with respect
to events of bankruptcy, insolvency or reorganization of a Significant
Subsidiary), (viii) or (ix) under "Defaults" above or because of the failure of
the Company to comply with clause (iii), (iv) or (v) under "--Merger and
Consolidation" above.
Either defeasance option may be exercised to any redemption date or to the
maturity date for the Notes. In order to exercise either defeasance option, the
Company must irrevocably deposit in trust (the "defeasance trust") with the
Trustee money or U.S. Government Obligations, or a combination thereof, for the
payment of principal of, and premium (if any) and interest on, the Notes to
redemption or maturity, as the case may be, and must comply with certain other
conditions, including delivery to the Trustee of an Opinion of Counsel to the
effect that holders of the Notes will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance and will
be subject to Federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such deposit and defeasance had
not occurred (and, in the case of legal defeasance only, such Opinion of Counsel
must be based on a ruling of the Internal Revenue Service or other change in
applicable Federal income tax law since the Issue Date).
SATISFACTION AND DISCHARGE
The Indenture will be discharged and cease to be of further effect (except
as to surviving rights of registration of transfer or exchange of the Notes, as
expressly provided for in the Indenture) as to all outstanding Notes when (I)
either (A) all the Notes previously authenticated and delivered (other than
certain lost, stolen or destroyed Notes, and certain Notes for which provision
for payment was previously made and thereafter the funds have been released to
the Company) have been delivered to the Trustee for cancellation or (B) all
Notes not previously delivered to the Trustee for cancellation (X) have become
due and payable, (Y) will become due and payable at their Stated Maturity within
one year or (Z) are to be called for redemption within one year under
arrangements reasonably satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company, (II)
the Company has irrevocably deposited or caused to be deposited with the Trustee
money, U.S. Government Obligations, or a combination thereof, sufficient to pay
and discharge the entire indebtedness on the Notes not previously delivered to
the Trustee for cancellation, for principal, premium, if any, and interest to
the date of deposit; (III) the Company has paid or caused to be paid all other
sums payable under the Indenture by the Company; and (IV) the Company has
delivered to the Trustee an Officer's Certificate and
59
<PAGE>
an Opinion of Counsel each to the effect that all conditions precedent under the
"Satisfaction and Discharge" section of the Indenture relating to the
satisfaction and discharge of the Indenture have been complied with, PROVIDED
that any such counsel may rely on any Officer's Certificate as to matters of
fact (including as to compliance with the foregoing clauses (i), (ii) and
(iii)).
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, INCORPORATORS AND
STOCKHOLDERS
No director, officer, employee, incorporator or stockholder of the Company,
any Note Guarantor or any Subsidiary of any thereof shall have any liability for
any obligation of the Company or any Note Guarantor under the Indenture, the
Notes or any Note Guarantee, or for any claim based on, in respect of, or by
reason of, any such obligation or its creation. Each Noteholder, by accepting
the Notes, waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes.
CONCERNING THE TRUSTEE
State Street Bank and Trust Company is to be the Trustee under the Indenture
and has been appointed by the Company as Registrar and Paying Agent with regard
to the Notes.
The Indenture will provide that, except during the continuance of an Event
of Default, the Trustee will perform only such duties as are set forth
specifically in the Indenture. During the existence of an Event of Default, the
Trustee will exercise such of the rights and powers vested in it under the
Indenture and use the same degree of care and skill in its exercise as a prudent
person would exercise under the circumstances in the conduct of such person's
own affairs.
The Indenture and the TIA will impose certain limitations on the rights of
the Trustee, should it become a creditor of the Company, to obtain payment of
claims in certain cases or to realize on certain property received by it in
respect of any such claims, as security or otherwise. The Trustee is permitted
to engage in other transactions; PROVIDED, that if it acquires any conflicting
interest as described in the TIA, it must eliminate such conflict, apply to the
SEC for permission to continue as Trustee with such conflict, or resign.
GOVERNING LAW
The Indenture provides that it and the Notes will be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to any principles of conflict of laws to the extent that the application
of the law of another jurisdiction would be required thereby.
NOTICES
All notices shall be deemed to have been given (i) upon the mailing by first
class mail, postage prepaid, of such notices to Holders of Notes at their
registered addresses as recorded in the Note Register and (ii) for so long as
the Notes are listed on the Luxembourg Stock Exchange, upon publication in a
leading newspaper of general circulation in Luxembourg, in each case, not later
than the latest date, and not earlier than the earliest date, prescribed in the
Indenture for the giving of such notice.
CERTAIN DEFINITIONS
"Additional Assets" means (i) any property or assets that replace the
property or assets that are the subject of an Asset Disposition; (ii) any
property or assets (other than Indebtedness and Capital Stock) to be used by the
Company or a Restricted Subsidiary in a Related Business; (iii) the Capital
Stock of a Person that is engaged in a Related Business and becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the Company
or another Restricted Subsidiary; or (iv) Capital Stock of any Person that at
such time is a Restricted Subsidiary, acquired from a third party.
60
<PAGE>
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"all or substantially all" has the meaning given to such phrase in the
Revised Model Business Corporation Act and commentary thereto.
"Asset Disposition" means any sale, lease, transfer or other disposition of
shares of Capital Stock of a Restricted Subsidiary (other than directors'
qualifying shares, or (in the case of a Foreign Subsidiary) to the extent
required by applicable law), property or other assets (each referred to for the
purposes of this definition as a "disposition") by the Company or any of its
Restricted Subsidiaries (including any disposition by means of a merger,
consolidation or similar transaction), other than (i) a disposition to the
Company or a Restricted Subsidiary, (ii) a disposition in the ordinary course of
business, (iii) any disposition or series of related dispositions for aggregate
consideration of less than $5.0 million, (iv) the sale or discount (with or
without recourse, and on customary or commercially reasonable terms) of accounts
receivable or notes receivable arising in the ordinary course of business, or
the conversion or exchange of accounts receivable for notes receivable, (v) a
Restricted Payment Transaction, (vi) a disposition that is governed by the
provisions described under "--Merger and Consolidation", (vii) any Financing
Disposition, (viii) any "fee in lieu" or other disposition of assets to any
governmental authority or agency that continue in use by the Company or any
Restricted Subsidiary, so long as the Company or any Restricted Subsidiary may
obtain title to such assets upon reasonable notice by paying a nominal fee, (ix)
any exchange of like property pursuant to Section 1031 (or any successor
section) of the Code, (x) any financing transaction with respect to property
built or acquired by the Company or any Restricted Subsidiary after the Issue
Date, including without limitation any sale/leaseback transaction or asset
securitization, (xi) any disposition arising from foreclosure, condemnation or
similar action with respect to any property or other assets, (xii) any
disposition of Capital Stock, Indebtedness or other securities of an
Unrestricted Subsidiary, (xiii) a disposition of Capital Stock of a Restricted
Subsidiary pursuant to an agreement or other obligation with or to a Person
(other than the Company or a Restricted Subsidiary) from whom such Restricted
Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its
business and assets (having been newly formed in connection with such
acquisition), entered into in connection with such acquisition, or (xiv) a
disposition of not more than 5% of the outstanding Capital Stock of a Foreign
Subsidiary that has been approved by the Board of Directors.
"Average Life" means, as of the date of determination, with respect to any
Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the sum
of the products of the numbers of years from the date of determination to the
dates of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred Stock multiplied by
the amount of such payment by (ii) the sum of all such payments.
"Bank Indebtedness" means any and all amounts, whether outstanding on the
Issue Date or thereafter incurred, payable under or in respect of the Senior
Credit Facility, including without limitation principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company or any Restricted
Subsidiary whether or not a claim for post-filing interest is allowed in such
proceedings), fees, charges, expenses, reimbursement obligations, guarantees,
other monetary obligations of any nature and all other amounts payable
thereunder or in respect thereof.
"Board of Directors" means the board of directors or other governing body of
the Company or, if the Company is owned or managed by a single entity, the board
of directors or other governing body of such entity, or, in either case, any
committee thereof duly authorized to act on behalf of such board or
61
<PAGE>
governing body (or, for purposes of clause (i) of paragraph (a) of the covenant
described under "--Certain Covenants--Limitation on Sales of Assets and
Subsidiary Stock," a committee of Officers of the Company designated by such
board or governing body).
"Borrowing Base" means the sum (determined as of the end of the most
recently ended fiscal quarter for which consolidated financial statements of the
Company are available) of (1) 60% of Inventory of the Company and its Restricted
Subsidiaries and (2) 80% of Receivables of the Company and its Restricted
Subsidiaries.
"Business Day" means a day other than a Saturday, Sunday or other day on
which commercial banking institutions are authorized or required by law to close
in New York City.
"Capital Stock" of any Person means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or interests
in (however designated) equity of such Person, including any Preferred Stock,
but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligation" means an obligation that is required to be
classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP. The Stated Maturity of any Capitalized Lease
Obligation shall be the date of the last payment of rent or any other amount due
under the related lease.
"Cash Equivalents" means any of the following: (a) securities issued or
fully guaranteed or insured by the United States Government or any agency or
instrumentality thereof, (b) time deposits, certificates of deposit or bankers'
acceptances of (i) any lender under the Senior Credit Agreement or (ii) any
commercial bank having capital and surplus in excess of $500,000,000 and the
commercial paper of the holding company of which is rated at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody's
(or if at such time neither is issuing ratings, then a comparable rating of
another nationally recognized rating agency), (c) commercial paper rated at
least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by Moody's (or if at such time neither is issuing ratings, then a
comparable rating of another nationally recognized rating agency) and (d)
investments in money market funds complying with the risk limiting conditions of
Rule 2a-7 or any successor rule of the SEC under the Investment Company Act of
1940, as amended.
"CDR" means Clayton, Dubilier & Rice, Inc.
"CDR Agreements" means, collectively, (i) the Investment Agreement, dated
January 12, 1998, as amended, between the Company and the Investor, (ii) the
Registration Rights Agreement, dated as of June 10, 1998, between the Company
and the Investor, and (iii) the Consulting Agreement and the Indemnification
Agreement, each dated as of June 10, 1998, each between the Company and CDR (and
its permitted successors and assigns thereunder); as each such CDR Agreement may
be amended, supplemented, waived or otherwise modified from time to time in
accordance with the terms thereof and of the Indenture.
"CDR Fund V" means Clayton, Dubilier & Rice V Limited Partnership, a Cayman
Islands exempted limited partnership, and any successor in interest thereto.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means U.S. Office Products Company, a Delaware corporation, and
any successor in interest thereto.
"Consolidated Coverage Ratio" as of any date of determination means the
ratio of (i) the aggregate amount of Consolidated EBITDA of the Company and its
Restricted Subsidiaries for the period of the most recent four consecutive
fiscal quarters ending prior to the date of such determination for which
consolidated financial statements of the Company are available to (ii)
Consolidated Interest Expense for such four fiscal quarters (in each case,
determined, for each fiscal quarter (or portion thereof) of the four
62
<PAGE>
fiscal quarters ending prior to the Issue Date, on a pro forma basis to give
effect to the Strategic Restructuring as if it had occurred at the beginning of
such four-quarter period); PROVIDED that
(1) if since the beginning of such period the Company or any Restricted
Subsidiary has Incurred any Indebtedness that remains outstanding on such
date of determination or if the transaction giving rise to the need to
calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness,
Consolidated EBITDA and Consolidated Interest Expense for such period shall
be calculated after giving effect on a pro forma basis to such Indebtedness
as if such Indebtedness had been Incurred on the first day of such period
(except that in making such computation, the amount of Indebtedness under
any revolving credit facility outstanding on the date of such calculation
shall be computed based on (A) the average daily balance of such
Indebtedness during such four fiscal quarters or such shorter period for
which such facility was outstanding or (B) if such facility was created
after the end of such four fiscal quarters, the average daily balance of
such Indebtedness during the period from the date of creation of such
facility to the date of such calculation),
(2) if since the beginning of such period the Company or any Restricted
Subsidiary has repaid, repurchased, redeemed, defeased or otherwise
acquired, retired or discharged any Indebtedness (each, a "Discharge") or if
the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio involves a Discharge of Indebtedness (in each case other than
Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid), Consolidated EBITDA and
Consolidated Interest Expense for such period shall be calculated after
giving effect on a pro forma basis to such Discharge of such Indebtedness,
including with the proceeds of such new Indebtedness, as if such Discharge
had occurred on the first day of such period.
(3) if since the beginning of such period the Company or any Restricted
Subsidiary shall have disposed of any company, any business or any group of
assets constituting an operating unit of a business (any such disposition, a
"Sale"), the Consolidated EBITDA for such period shall be reduced by an
amount equal to the Consolidated EBITDA (if positive) attributable to the
assets that are the subject of such Sale for such period or increased by an
amount equal to the Consolidated EBITDA (if negative) attributable thereto
for such period and Consolidated Interest Expense for such period shall be
reduced by an amount equal to (A) the Consolidated Interest Expense
attributable to any Indebtedness of the Company or any Restricted Subsidiary
repaid, repurchased, redeemed, defeased or otherwise acquired, retired or
discharged with respect to the Company and its continuing Restricted
Subsidiaries in connection with such Sale for such period (including but not
limited to through the assumption of such Indebtedness by another Person)
plus (B) if the Capital Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense for such period attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company and its
continuing Restricted Subsidiaries are no longer liable for such
Indebtedness after such Sale,
(4) if since the beginning of such period the Company or any Restricted
Subsidiary (by merger, consolidation or otherwise) shall have made an
Investment in any Person that thereby becomes a Restricted Subsidiary, or
otherwise acquired any company, any business or any group of assets
constituting an operating unit of a business, including any such Investment
or acquisition occurring in connection with a transaction causing a
calculation to be made hereunder (any such Investment or acquisition, a
"Purchase"), Consolidated EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving pro forma effect thereto (including
the Incurrence of any related Indebtedness) as if such Purchase occurred on
the first day of such period, and
(5) if since the beginning of such period any Person became a Restricted
Subsidiary or was merged or consolidated with or into the Company or any
Restricted Subsidiary, and since the beginning of such period such Person
shall have Discharged any Indebtedness or made any Sale or Purchase that
would have required an adjustment pursuant to clause (2), (3) or (4) above
if made by the Company or a Restricted Subsidiary during such period,
Consolidated EBITDA and Consolidated
63
<PAGE>
Interest Expense for such period shall be calculated after giving pro forma
effect thereto as if such Discharge, Sale or Purchase occurred on the first
day of such period.
For purposes of this definition, whenever pro forma effect is to be given to
any Sale, Purchase or other transaction, or the amount of income or earnings
relating thereto and the amount of Consolidated Interest Expense associated with
any Indebtedness Incurred or repaid, repurchased, redeemed, defeased or
otherwise acquired, retired or discharged in connection therewith, the pro forma
calculations in respect thereof (including without limitation in respect of
anticipated cost savings or synergies relating to any such Sale, Purchase or
other transaction) shall be as determined in good faith by a responsible
financial or accounting Officer of the Company. If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest
expense on such Indebtedness shall be calculated as if the rate in effect on the
date of determination had been the applicable rate for the entire period (taking
into account any Interest Rate Agreement applicable to such Indebtedness to the
extent of the remaining term of such Interest Rate Agreement). If any
Indebtedness bears, at the option of the Company or a Restricted Subsidiary, a
rate of interest based on a prime or similar rate, a eurocurrency interbank
offered rate or other fixed or floating rate, and such Indebtedness is being
given pro forma effect, the interest expense on such Indebtedness shall be
calculated by applying such optional rate as the Company or such Restricted
Subsidiary may designate. If any Indebtedness that is being given pro forma
effect was Incurred under a revolving credit facility, the interest expense on
such Indebtedness shall be computed based upon the average daily balance of such
Indebtedness during the applicable period. Interest on a Capitalized Lease
Obligation shall be deemed to accrue at an interest rate determined in good
faith by a responsible financial or accounting officer of the Company to be the
rate of interest implicit in such Capitalized Lease Obligation in accordance
with GAAP.
"Consolidated EBITDA" means, for any period, the Consolidated Net Income for
such period, plus the following to the extent deducted in calculating such
Consolidated Net Income: (i) provision for all taxes (whether or not paid,
estimated or accrued) based on income, profits or capital, (ii) Consolidated
Interest Expense and any Receivables Fees, (iii) depreciation, amortization
(including but not limited to amortization of goodwill and intangibles and
amortization and write-off of financing costs) and all other non-cash charges or
non-cash losses, (iv) any expenses or charges related to any Equity Offering,
Investment or Indebtedness permitted by the Indenture (whether or not
consummated or incurred) and (v) the amount of any minority interest expense.
"Consolidated Interest Expense" means, for any period, (i) the total
interest expense of the Company and its Restricted Subsidiaries to the extent
deducted in calculating Consolidated Net Income, net of any interest income of
the Company and its Restricted Subsidiaries, including without limitation any
such interest expense consisting of (a) interest expense attributable to
Capitalized Lease Obligations, (b) amortization of debt discount, (c) the
interest portion of any deferred payment obligation, and (d) commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing, plus (ii) Preferred Stock dividends paid in cash
in respect of Disqualified Stock of the Company held by Persons other than the
Company or a Restricted Subsidiary and minus (iii) to the extent otherwise
included in such interest expense, Receivables Fees and amortization or
write-off of financing costs, in each case under clauses (i) through (iii) as
determined on a Consolidated basis in accordance with GAAP; PROVIDED that gross
interest expense shall be determined after giving effect to any net payments
made or received by the Company and its Restricted Subsidiaries with respect to
Interest Rate Agreements.
"Consolidated Net Income" means, for any period, the net income (loss) of
the Company and its Restricted Subsidiaries, determined on a consolidated basis
in accordance with GAAP and before any reduction in respect of Preferred Stock
dividends; PROVIDED that there shall not be included in such Consolidated Net
Income:
64
<PAGE>
(i) any net income (loss) of any Person if such Person is not a
Restricted Subsidiary, except that (A) subject to the limitations contained
in clause (iv) below, the Company's equity in the net income of any such
Person for such period shall be included in such Consolidated Net Income up
to the aggregate amount actually distributed by such Person during such
period to the Company or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution to a
Restricted Subsidiary, to the limitations contained in clause (iii) below)
and (B) the Company's equity in the net loss of such Person shall be
included to the extent of the aggregate Investment of the Company or any of
its Restricted Subsidiaries in such Person,
(ii) any net income (loss) of any Person acquired by the Company or a
Restricted Subsidiary in a pooling of interests transaction for any period
prior to the date of such acquisition,
(iii) any net income (loss) of any Restricted Subsidiary that is not a
Note Guarantor if such Restricted Subsidiary is subject to restrictions,
directly or indirectly, on the payment of dividends or the making of similar
distributions by such Restricted Subsidiary, directly or indirectly, to the
Company by operation of the terms of such Restricted Subsidiary's charter or
any agreement, instrument, judgment, decree, order, statute or governmental
rule or regulation applicable to such Restricted Subsidiary or its
stockholders (other than (x) restrictions that have been waived or otherwise
released, (y) restrictions pursuant to the Notes or the Indenture and (z)
restrictions in effect on the Issue Date with respect to a Restricted
Subsidiary and other restrictions with respect to such Restricted Subsidiary
that taken as a whole are not materially less favorable to the Noteholders
than such restrictions in effect on the Issue Date), except that (A) subject
to the limitations contained in clause (iv) below, the Company's equity in
the net income of any such Restricted Subsidiary for such period shall be
included in such Consolidated Net Income up to the aggregate amount of any
dividend or distribution that was or that could have been made by such
Restricted Subsidiary during such period to the Company or another
Restricted Subsidiary (subject, in the case of a dividend that could have
been made to another Restricted Subsidiary, to the limitation contained in
this clause) and (B) the net loss of such Restricted Subsidiary shall be
included to the extent of the aggregate Investment of the Company or any of
its other Restricted Subsidiaries in such Restricted Subsidiary,
(iv) any gain or loss realized upon the sale or other disposition of any
asset of the Company or any Restricted Subsidiary (including pursuant to any
sale/leaseback transaction) that is not sold or otherwise disposed of in the
ordinary course of business (as determined in good faith by the Board of
Directors),
(v) any item classified as an extraordinary, unusual or nonrecurring
gain, loss or charge (including without limitation (a) any compensation
expense for stock options that will be cashed out, converted, exchanged or
otherwise retired in connection with the Strategic Restructuring, (b) any
charge or expense incurred for employee bonuses in connection with the
Strategic Restructuring, and (c) fees, expenses and charges associated with
the Strategic Restructuring or any acquisition, merger or consolidation
after the Issue Date),
(vi) the cumulative effect of a change in accounting principles,
(vii) all deferred financing costs written off and premiums paid in
connection with any early extinguishment of Indebtedness,
(viii) any unrealized gains or losses in respect of Currency Agreements,
(ix) any unrealized foreign currency transaction gains or losses in
respect of Indebtedness of any Person denominated in a currency other than
the functional currency of such Person, and
(x) any non-cash compensation charge arising from any grant of stock,
stock options or other equity-based awards.
65
<PAGE>
In the case of any unusual or nonrecurring gain, loss or charge not included
in Consolidated Net Income pursuant to clause (v) above in any determination
thereof, the Company will deliver an Officer's Certificate to the Trustee
promptly after the date on which Consolidated Net Income is so determined,
setting forth the nature and amount of such unusual or nonrecurring gain, loss
or charge.
"Consolidated Total Assets" means, as of any date of determination, the
total assets shown on the consolidated balance sheet of the Company and its
Restricted Subsidiaries as of the most recent date for which such a balance
sheet is available, determined on a consolidated basis in accordance with GAAP
(and, in the case of any determination relating to any Incurrence of
Indebtedness or any Investment, on a pro forma basis including any property or
assets being acquired in connection therewith), PROVIDED that for purposes of
paragraph (b) of the covenant described in "--Certain Covenants--Limitation on
Indebtedness" and the definition of "Permitted Investments," Consolidated Total
Assets shall not be less than $2,006 million. At April 25, 1998, on a pro forma
basis giving effect to the Transactions, Consolidated Total Assets was $2,020
million. See "Pro Forma Combined Financial Data."
"Consolidation" means the consolidation of the accounts of each of the
Restricted Subsidiaries with those of the Company in accordance with GAAP;
PROVIDED that "Consolidation" will not include consolidation of the accounts of
any Unrestricted Subsidiary, but the interest of the Company or any Restricted
Subsidiary in any Unrestricted Subsidiary will be accounted for as an
investment. The term "Consolidated" has a correlative meaning.
"Convertible Notes" means, collectively, the Company's 5 1/2% Convertible
Subordinated Notes due 2001 and its 5 1/2% Convertible Subordinated Notes due
2003.
"Currency Agreement" means, in respect of a Person, any foreign exchange
contract, currency swap agreement or other similar agreement or arrangements
(including derivative agreements or arrangements), as to which such Person is a
party or a beneficiary.
"Default" means any event or condition that is, or after notice or passage
of time or both would be, an Event of Default.
"Designated Senior Indebtedness" means (i) the Bank Indebtedness and (ii)
any other Senior Indebtedness that, at the date of determination, has an
aggregate principal amount equal to or under which, at the date of
determination, the holders thereof are committed to lend up to, at least $25.0
million and is specifically designated by the Company in an agreement or
instrument evidencing or governing such Senior Indebtedness as "Designated
Senior Indebtedness" for purposes of the Indenture.
"Disinterested Director" means, with respect to any Affiliate Transaction, a
member of the Board of Directors having no material direct or indirect financial
interest in or with respect to such Affiliate Transaction. A member of the Board
of Directors shall not be deemed to have such a financial interest by reason of
such member's holding Capital Stock of the Company or a Parent or any options,
warrants or other rights in respect of such Capital Stock.
"Disqualified Stock" means, with respect to any Person, any Capital Stock
(other than Management Stock) that by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable or exercisable) or
upon the happening of any event (other than following the occurrence of a Change
of Control or other similar event described under such terms as a "change of
control," or an Asset Disposition) (i) matures or is mandatorily redeemable
pursuant to a sinking fund obligation or otherwise, (ii) is convertible or
exchangeable for Indebtedness or Disqualified Stock or (iii) is redeemable at
the option of the holder thereof (other than following the occurrence of a
Change of Control or other similar event described under such terms as a "change
of control," or an Asset Disposition), in whole or in part, in each case on or
prior to the final Stated Maturity of the Notes.
"Domestic Subsidiary" means any Restricted Subsidiary of the Company other
than a Foreign Subsidiary.
66
<PAGE>
"Equity Tender Offer" means the self-tender offer by the Company to purchase
shares of its common stock (or options therefor) as part of the Strategic
Restructuring.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Contribution" means Net Cash Proceeds, or the fair value, as
determined in good faith by the Board of Directors, of property or assets,
received by the Company as capital contributions to the Company after the Issue
Date or from the issuance or sale (other than to a Restricted Subsidiary) of
Capital Stock (other than Disqualified Stock) of the Company, in each case to
the extent designated as an Excluded Contribution pursuant to an Officer's
Certificate of the Company and not previously included in the calculation set
forth in subparagraph (a)(3)(B)(x) of the covenant described under "--Certain
Covenants--Limitation on Restricted Payments" for purposes of determining
whether a Restricted Payment may be made.
"Financing Disposition" means any sale, transfer, conveyance or other
disposition of property or assets by the Company or any Subsidiary thereof to
any Receivables Entity, or by any Receivables Subsidiary, in each case in
connection with the Incurrence by a Receivables Entity of Indebtedness, or
obligations to make payments to the obligor on Indebtedness, which may be
secured by a Lien in respect of such property or assets.
"Foreign Subsidiary" means (a) any Restricted Subsidiary of the Company that
is not organized under the laws of the United States of America or any state
thereof or the District of Columbia and (b) any Restricted Subsidiary of the
Company that has no material assets other than securities of one or more Foreign
Subsidiaries, and other assets relating to an ownership interest in any such
securities or Subsidiaries.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect on the Issue Date (for purposes of the definitions of
the terms "Consolidated Coverage Ratio," "Consolidated EBITDA," "Consolidated
Interest Expense," "Consolidated Net Income" and "Consolidated Total Assets,"
all defined terms in the Indenture to the extent used in or relating to any of
the foregoing definitions, and all ratios and computations based on any of the
foregoing definitions) and as in effect from time to time (for all other
purposes of the Indenture), including those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
approved by a significant segment of the accounting profession. All ratios and
computations based on GAAP contained in the Indenture shall be computed in
conformity with GAAP.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness or other obligation of any
other Person; PROVIDED that the term "Guarantee" shall not include endorsements
for collection or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning.
"Guarantor Senior Indebtedness" means, with respect to any Note Guarantor,
the following obligations, whether outstanding on the date of the Indenture or
thereafter issued, without duplication: (i) any Guarantee of Bank Indebtedness
by such Note Guarantor and all other Guarantees by such Note Guarantor of Senior
Indebtedness of the Company or Guarantor Senior Indebtedness of any other Note
Guarantor; (ii) all obligations in respect of any Receivables Financing; and
(iii) all obligations consisting of the principal of and premium, if any, and
accrued and unpaid interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the Note
Guarantor regardless of whether post-filing interest is allowed in such
proceeding) on, and fees and other amounts owing in respect of, all other
Indebtedness of the Note Guarantor, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
expressly provided that the obligations in respect of such Indebtedness are not
senior in right of payment to the obligations of such
67
<PAGE>
Note Guarantor under its Note Guarantee; PROVIDED, HOWEVER, that Guarantor
Senior Indebtedness shall not include (1) any obligations of such Note Guarantor
to the Company or any other Subsidiary of the Company, (2) any liability for
Federal, state, local, foreign or other taxes owed or owing by such Note
Guarantor, (3) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including Guarantees thereof or
instruments evidencing such liabilities), (4) any Indebtedness of such Note
Guarantor (or Guarantee by such Note Guarantor of Indebtedness) that is
expressly subordinated in right of payment to any other Indebtedness of such
Note Guarantor (or Guarantee by such Note Guarantor of Indebtedness), (5) any
Capital Stock of such Note Guarantor or (6) that portion of any Indebtedness of
such Note Guarantor that is Incurred by such Note Guarantor in violation of the
covenant described under "--Certain Covenants--Limitation on Indebtedness" (but
no such violation shall be deemed to exist for purposes of this clause (6) if
any holder of such Indebtedness or such holder's representative shall have
received an Officer's Certificate to the effect that such Incurrence of such
Indebtedness does not (or that the Incurrence by such Note Guarantor of the
entire committed amount thereof at the date on which the initial borrowing
thereunder is made would not) violate such covenant). If any Guarantor Senior
Indebtedness is disallowed, avoided or subordinated pursuant to the provisions
of Section 548 of Title 11 of the United States Code or any applicable state
fraudulent conveyance law, such Guarantor Senior Indebtedness nevertheless will
constitute Guarantor Senior Indebtedness.
"Guarantor Senior Subordinated Indebtedness" means, with respect to a Note
Guarantor, (i) the obligations of such Note Guarantor under its Note Guarantee
and (ii) any other Indebtedness of such Note Guarantor that ranks PARI PASSU in
right of payment with the obligations of such Note Guarantor under its Note
Guarantee.
"Guarantor Subordinated Obligations" means, with respect to a Note
Guarantor, any Indebtedness of such Note Guarantor (whether outstanding on the
Issue Date or thereafter Incurred) that is expressly subordinated in right of
payment to the obligations of such Note Guarantor under the Note Guarantee
pursuant to a written agreement.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Noteholder" means the Person in whose name a Note is registered
in the Note Register.
"Holding Company Expenses" means (i) costs (including all professional fees
and expenses) incurred by a Parent to comply with its reporting obligations
under federal or state laws or under the Indenture, including any reports filed
with respect to the Securities Act, Exchange Act or the respective rules and
regulations promulgated thereunder, (ii) indemnification obligations of a Parent
owing to directors, officers, employees or other Persons under its charter or
by-laws or pursuant to written agreements with any such Person, (iii) fees and
expenses payable by a Parent in connection with the Transactions, (iv) other
operational expenses of a Parent incurred in the ordinary course of business not
to exceed $1.0 million in any fiscal year, and (v) expenses incurred by a Parent
in connection with any public offering of Capital Stock or Indebtedness (x)
where the net proceeds of such offering are intended to be received by or
contributed or loaned to the Company or a Restricted Subsidiary, or (y) in a
prorated amount of such expenses in proportion to the amount of such net
proceeds intended to be so received, contributed or loaned, or (z) otherwise on
an interim basis prior to completion of such offering so long as a Parent shall
cause the amount of such expenses to be repaid to the Company or the relevant
Restricted Subsidiary out of the proceeds of such offering promptly if
completed.
"Incur" means issue, assume, enter into any Guarantee of, incur or otherwise
become liable for; PROVIDED, HOWEVER, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred
by such Subsidiary at the time it becomes a Subsidiary. Accrual of interest, the
accretion of accreted value and the payment of interest in the form of
additional Indebtedness will not be deemed to be an Incurrence of Indebtedness.
Any Indebtedness issued at a discount (including Indebtedness on which interest
is payable through the issuance of additional Indebtedness) shall be deemed
Incurred at the time of original issuance of the Indebtedness at the initial
accreted amount thereof.
68
<PAGE>
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(i) the principal of indebtedness of such Person for borrowed money,
(ii) the principal of obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments,
(iii) all reimbursement obligations of such Person in respect of letters
of credit or other similar instruments (the amount of such obligations being
equal at any time to the aggregate then undrawn and unexpired amount of such
letters of credit or other instruments plus the aggregate amount of drawings
thereunder that have not then been reimbursed),
(iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property (except Trade Payables), which purchase price is
due more than one year after the date of placing such property in final
service or taking final delivery and title thereto,
(v) all Capitalized Lease Obligations of such Person,
(vi) the redemption, repayment or other repurchase amount of such Person
with respect to any Disqualified Stock of such Person or (if such Person is
a Subsidiary of the Company other than a Note Guarantor) any Preferred Stock
of such Subsidiary, but excluding, in each case, any accrued dividends (the
amount of such obligation to be equal at any time to the maximum fixed
involuntary redemption, repayment or repurchase price for such Capital
Stock, or if less (or if such Capital Stock has no such fixed price), to the
involuntary redemption, repayment or repurchase price therefor calculated in
accordance with the terms thereof as if then redeemed, repaid or
repurchased, and if such price is based upon or measured by the fair market
value of such Capital Stock, such fair market value shall be as determined
in good faith by the Board of Directors or the board of directors or other
governing body of the issuer of such Capital Stock),
(vii) all Indebtedness of other Persons secured by a Lien on any asset of
such Person, whether or not such Indebtedness is assumed by such Person;
PROVIDED that the amount of Indebtedness of such Person shall be the lesser
of (A) the fair market value of such asset at such date of determination (as
determined in good faith by the Company) and (B) the amount of such
Indebtedness of such other Persons,
(viii) all Indebtedness of other Persons to the extent Guaranteed by such
Person, and
(ix) to the extent not otherwise included in this definition, net
Hedging Obligations of such Person (the amount of any such obligation to be
equal at any time to the termination value of such agreement or arrangement
giving rise to such Hedging Obligation that would be payable by such Person
at such time).
The amount of Indebtedness of any Person at any date shall be determined as
set forth above or otherwise provided in the Indenture, or otherwise shall equal
the amount thereof that would appear on a balance sheet of such Person
(excluding any notes thereto) prepared in accordance with GAAP.
"Interest Rate Agreement" means, with respect to any Person, any interest
rate protection agreement, interest rate future agreement, interest rate option
agreement, interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, interest rate hedge agreement or other similar agreement
or arrangement (including derivative agreements or arrangements), as to which
such Person is party or a beneficiary.
"Inventory" means goods held for sale or lease by a Person in the ordinary
course of business, net of any reserve for goods that have been segregated by
such Person to be returned to the applicable vendor for credit, as determined in
accordance with GAAP.
69
<PAGE>
"Investment" in any Person by any other Person means any direct or indirect
advance, loan or other extension of credit (other than to customers, suppliers,
directors, officers or employees of any Person in the ordinary course of
business) or capital contribution (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others) to, or any purchase or acquisition of Capital Stock, Indebtedness
or other similar instruments issued by, such Person. For purposes of the
definition of "Unrestricted Subsidiary" and the covenant described under
"--Certain Covenants--Limitation on Restricted Payments," (i) "Investment" shall
include the portion (proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of any Subsidiary of the
Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary, PROVIDED that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary in an amount (if positive)
equal to (x) the Company's "Investment" in such Subsidiary at the time of such
redesignation less (y) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of such
Subsidiary at the time of such redesignation, (ii) any property transferred to
or from an Unrestricted Subsidiary shall be valued at its fair market value at
the time of such transfer, and (iii) in each case under clause (i) or (ii)
above, fair market value shall be as determined in good faith by the Board of
Directors. Guarantees shall not be deemed to be Investments. The amount of any
Investment outstanding at any time shall be the original cost of such
Investment, reduced (at the Company's option) by any dividend, distribution,
interest payment, return of capital, repayment or other amount or value received
in respect of such Investment; PROVIDED, that to the extent that the amount of
Restricted Payments outstanding at any time is so reduced by any portion of any
such amount or value that would otherwise be included in the calculation of
Consolidated Net Income, such portion of such amount or value shall not be so
included for purposes of calculating the amount of Restricted Payments that may
be made pursuant to paragraph (a) of the covenant described under "--Certain
Covenants--Limitation on Restricted Payments."
"Investor" means CDR-PC Acquisition L.L.C., a Delaware limited liability
company, and its successors and assigns.
"Issue Date" means the date on which the Old Notes were issued.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Management Advances" means (1) loans or advances made to directors,
officers or employees of a Parent, the Company or any Restricted Subsidiary (x)
in respect of travel, entertainment or moving-related expenses incurred in the
ordinary course of business, (y) in respect of moving-related expenses incurred
in connection with any closing or consolidation of any facility, or (z) in the
ordinary course of business and (in the case of this clause (z)) not exceeding
$5.0 million in the aggregate outstanding at any time, (2) promissory notes of
Management Investors acquired in connection with the issuance of Management
Stock to such Management Investors, (3) loans to Management Investors of funds
applied to purchase Management Stock, (4) Management Guarantees, or (5) other
Guarantees of borrowings by Management Investors in connection with the purchase
of Management Stock, which Guarantees are permitted under the covenant described
under "--Certain Covenants--Limitation on Indebtedness."
"Management Guarantees" means guarantees (x) of up to an aggregate principal
amount of $25.0 million of borrowings by Management Investors in connection with
their purchase of Management Stock or (y) made on behalf of, or in respect of
loans or advances made to, directors, officers or employees of a Parent, the
Company or any Restricted Subsidiary (1) in respect of travel, entertainment and
moving-related expenses incurred in the ordinary course of business, or (2) in
the ordinary course of business and (in the case of this clause (2)) not
exceeding $5.0 million in the aggregate outstanding at any time.
"Management Investors" means the officers, directors, employees and other
members of the management of a Parent, the Company or any of their respective
Subsidiaries, or family members or relatives
70
<PAGE>
thereof, or trusts or partnerships for the benefit of any of the foregoing, or
any of their heirs, executors, successors and legal representatives, who at any
date beneficially own or have the right to acquire, directly or indirectly,
Capital Stock of the Company or a Parent.
"Management Stock" means Capital Stock of the Company or a Parent (including
any options, warrants or other rights in respect thereof) held by any of the
Management Investors.
"Material Domestic Subsidiary" means a Domestic Subsidiary of the Company
that, as of the end of any fiscal quarter of the Company ending after the Issue
Date, has tangible assets of more than $3.0 million as reflected in the
consolidated balance sheet of the Company as of such date.
"Moody's" means Moody's Investors Service, Inc., and its successors.
"Net Available Cash" from an Asset Disposition means cash payments received
(including any cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or otherwise, but only as and when
received, but excluding any other consideration received in the form of
assumption by the acquiring person of Indebtedness or other obligations relating
to the properties or assets that are the subject of such Asset Disposition or
received in any other non-cash form) therefrom, in each case net of (i) all
legal, title and recording tax expenses, commissions and other fees and expenses
incurred, and all Federal, state, provincial, foreign and local taxes required
to be paid or accrued as a liability under GAAP, as a consequence of such Asset
Disposition (including as a consequence of any transfer of funds in connection
with the application thereof in accordance with the covenant described under
"--Certain Covenants--Limitation on Sales of Assets and Subsidiary Stock"), (ii)
all payments made, and all installment payments required to be made, on any
Indebtedness that is secured by any assets subject to such Asset Disposition, in
accordance with the terms of any Lien upon such assets, or that must by its
terms, or in order to obtain a necessary consent to such Asset Disposition, or
by applicable law, be repaid out of the proceeds from such Asset Disposition,
(iii) all distributions and other payments required to be made to minority
interest holders in Subsidiaries or joint ventures as a result of such Asset
Disposition, or to any other Person (other than the Company or a Restricted
Subsidiary) owning a beneficial interest in the assets disposed of in such Asset
Disposition and (iv) any liabilities or obligations associated with the assets
disposed of in such Asset Disposition and retained by the Company or any
Restricted Subsidiary after such Asset Disposition, including without limitation
pension and other post-employment benefit liabilities, liabilities related to
environmental matters, and liabilities relating to any indemnification
obligations associated with such Asset Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of any securities
of the Company or any Subsidiary by the Company or any Subsidiary, or any
capital contribution, means the cash proceeds of such issuance, sale or
contribution net of attorneys' fees, accountants' fees, underwriters' or
placement agents' fees, discounts or commissions and brokerage, consultant and
other fees actually incurred in connection with such issuance, sale or
contribution and net of taxes paid or payable as a result thereof.
"Note Guarantee" means any of (i) the guarantee of the Notes by the Domestic
Subsidiaries to be entered into on the Issue Date as described under "--Note
Guarantees," and (ii) any guarantee that may from time to time be entered into
by a Restricted Subsidiary of the Company pursuant to the covenant described
under "--Certain Covenants--Future Note Guarantors."
"Note Guarantor" means any Restricted Subsidiary of the Company that enters
into a Note Guarantee.
"Officer" means, with respect to the Company or any other obligor upon the
Notes, the Chairman of the Board, the President, the Chief Executive Officer,
the Chief Financial Officer, any Vice President, the Controller, the Treasurer
or the Secretary (a) of such Person or (b) if such Person is owned or managed by
a single entity, of such entity.
71
<PAGE>
"Officer's Certificate" means, with respect to the Company or any other
obligor upon the Notes, a certificate signed by one Officer of such Person.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Parent" means any Person of which the Company at any time is or becomes a
Subsidiary after the Issue Date.
"Permitted Holder" means any of the following: (i) any of the Investor,
Management Investors, CDR, CDR Fund V and their respective Affiliates; (ii) any
investment fund or vehicle managed, sponsored or advised by CDR; (iii) any
limited or general partners of, or other investors in, any of the Investors and
their respective Affiliates, or any such investment fund or vehicle; and (iv)
any Person acting in the capacity of an underwriter in connection with a public
or private offering of Capital Stock of a Parent or the Company.
"Permitted Investment" means an Investment by the Company or any Restricted
Subsidiary in, or consisting of, any of the following:
(i) a Restricted Subsidiary, the Company, or a Person that will, upon
the making of such Investment, become a Restricted Subsidiary;
(ii) another Person if as a result of such Investment such other Person
is merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, or is liquidated into, the Company or a
Restricted Subsidiary;
(iii) Temporary Cash Investments or Cash Equivalents;
(iv) receivables owing to the Company or any Restricted Subsidiary, if
created or acquired in the ordinary course of business;
(v) any securities or other Investments received as consideration in, or
retained in connection with, sales or other dispositions of property or
assets, including Asset Dispositions made in compliance with the covenant
described under "--Certain Covenants--Limitation on Sales of Assets and
Subsidiary Stock;"
(vi) securities or other Investments received in settlement of debts
created in the ordinary course of business and owing to the Company or any
Restricted Subsidiary, or as a result of foreclosure, perfection or
enforcement of any Lien, or in satisfaction of judgments, including in
connection with any bankruptcy proceeding or other reorganization of another
Person;
(vii) Investments in existence or made pursuant to legally binding
written commitments in existence on the Issue Date;
(viii) Currency Agreements, Interest Rate Agreements and related Hedging
Obligations, which obligations are Incurred in compliance with the covenant
described under "--Certain Covenants-- Limitation on Indebtedness;"
(ix) pledges or deposits (x) with respect to leases or utilities
provided to third parties in the ordinary course of business or (y)
otherwise described in the definition of "Permitted Liens" or made in
connection with Liens permitted under the covenant described under
"--Certain Covenants-- Limitations on Liens;"
(x) Notes;
(xi) any Investment to the extent made using Capital Stock of the
Company (other than Disqualified Stock), or Capital Stock of a Parent, as
consideration;
72
<PAGE>
(xii) any Investment in a joint venture or similar entity that is not a
Restricted Subsidiary, or in any Related Business, in an aggregate amount
outstanding at any time not to exceed 5% of Consolidated Total Assets;
(xiii) (1) Investments in any Receivables Subsidiary, or in connection
with a Financing Disposition by or to any Receivables Entity, including
Investments of funds held in accounts permitted or required by the
arrangements governing such Financing Disposition or any related
Indebtedness, or (2) any promissory note issued by the Company or a Parent,
PROVIDED that if such Parent receives cash from the relevant Receivables
Entity in exchange for such note, an equal cash amount is contributed by
such Parent to the Company;
(xiv) bonds secured by assets leased to and operated by the Company or
any Restricted Subsidiary that were issued in connection with the financing
of such assets so long as the Company or any Restricted Subsidiary may
obtain title to such assets at any time by paying a nominal fee, canceling
such bonds and terminating the transaction;
(xv) Management Advances; and
(xvi) other Investments in an aggregate amount outstanding at any time
not to exceed 2.5% of Consolidated Total Assets.
"Permitted Liens" means:
(a) Liens for taxes, assessments or other governmental charges not yet
delinquent or the nonpayment of which in the aggregate would not reasonably
be expected to have a material adverse effect on the Company and its
Restricted Subsidiaries, or that are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Company or a Subsidiary thereof, as the case
may be, in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
in respect of obligations that are not overdue for a period of more than 60
days, or that are bonded or that are being contested in good faith and by
appropriate proceedings;
(c) pledges, deposits or Liens in connection with workers' compensation,
unemployment insurance and other social security and other similar
legislation or other insurance-related obligations (including, without
limitation, pledges or deposits securing liability to insurance carriers
under insurance or self-insurance arrangements);
(d) pledges, deposits or Liens to secure the performance of bids,
tenders, trade, government or other contracts (other than for borrowed
money), obligations for utilities, leases, licenses, statutory obligations,
completion guarantees, surety, judgment, appeal or performance bonds, other
similar bonds, instruments or obligations, and other obligations of a like
nature incurred in the ordinary course of business;
(e) easements (including reciprocal easement agreements), rights-of-way,
building, zoning and similar restrictions, utility agreements, covenants,
reservations, restrictions, encroachments, changes, and other similar
encumbrances or title defects incurred, or leases or subleases granted to
others, in the ordinary course of business, which do not in the aggregate
materially interfere with the ordinary conduct of the business of the
Company and its Subsidiaries, taken as a whole;
(f) Liens existing on, or provided for under written arrangements
existing on, the Issue Date, or (in the case of any such Liens securing
Indebtedness of the Company or any of its Subsidiaries existing or arising
under written arrangements existing on the Issue Date) securing any
Refinancing Indebtedness in respect of such Indebtedness so long as the Lien
securing such Refinancing Indebtedness is limited to all or part of the same
property or assets (plus improvements, accessions, proceeds or
73
<PAGE>
dividends or distributions in respect thereof) that secured (or under such
written arrangements could secure) the original Indebtedness;
(g) (i) mortgages, liens, security interests, restrictions, encumbrances
or any other matters of record that have been placed by any developer,
landlord or other third party on property over which the Company or any
Restricted Subsidiary of the Company has easement rights or on any leased
property and subordination or similar agreements relating thereto and (ii)
any condemnation or eminent domain proceedings affecting any real property;
(h) Liens securing Hedging Obligations, Purchase Money Obligations or
Capitalized Lease Obligations Incurred in compliance with the covenant
described under "--Certain Covenants-- Limitation on Indebtedness;"
(i) Liens arising out of judgments, decrees, orders or awards in respect
of which the Company shall in good faith be prosecuting an appeal or
proceedings for review, which appeal or proceedings shall not have been
finally terminated, or if the period within which such appeal or proceedings
may be initiated shall not have expired;
(j) leases, subleases, licenses or sublicenses to third parties;
(k) Liens securing (1) Indebtedness Incurred in compliance with clause
(b)(i), (b)(iv), (b)(v), (b)(vii), (b)(viii)(E) or (b)(x) of the covenant
described under "--Certain Covenants--Limitation on Indebtedness," or clause
(b)(iii) thereof (other than Refinancing Indebtedness Incurred in respect of
Indebtedness described in paragraph (a) thereof), (2) Bank Indebtedness, (3)
commercial bank Indebtedness, (4) Indebtedness of any Restricted Subsidiary
that is not a Note Guarantor, (5) the Notes, or (6) Indebtedness or other
obligations of any Receivables Entity;
(l) Liens existing on property or assets of a Person at the time such
Person becomes a Subsidiary of the Company (or at the time the Company or a
Restricted Subsidiary acquires such property or assets); PROVIDED, HOWEVER,
that such Liens are not created in connection with, or in contemplation of,
such other Person becoming such a Subsidiary (or such acquisition of such
property or assets), and that such Liens are limited to all or part of the
same property or assets (plus improvements, accessions, proceeds or
dividends or distributions in respect thereof) that secured (or, under the
written arrangements under which such Liens arose, could secure) the
obligations to which such Liens relate;
(m) Liens on Capital Stock or other securities of an Unrestricted
Subsidiary that secure Indebtedness or other obligations of such
Unrestricted Subsidiary;
(n) any encumbrance or restriction (including, but not limited to, put
and call agreements) with respect to Capital Stock of any joint venture or
similar arrangement pursuant to any joint venture or similar agreement; and
(o) Liens securing Refinancing Indebtedness Incurred in respect of any
Indebtedness secured by, or securing any refinancing, refunding, extension,
renewal or replacement (in whole or in part) of any other obligation secured
by, any other Permitted Liens, PROVIDED that any such new Lien is limited to
all or part of the same property or assets (plus improvements, accessions,
proceeds or dividends or distributions in respect thereof) that secured (or,
under the written arrangements under which the original Lien arose, could
secure) the obligations to which such Liens relate.
"Permitted Parent Payments" means loans, advances, dividends or
distributions to a Parent or other payments by the Company or any Restricted
Subsidiary (A) to permit such Parent to satisfy obligations under the CDR
Agreements or (B) to pay or permit such Parent to pay any Holding Company
Expenses or any Related Taxes.
74
<PAGE>
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock" as applied to the Capital Stock of any corporation means
Capital Stock of any class or classes (however designated) that by its terms is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Purchase Money Obligations" means any Indebtedness Incurred to finance or
refinance the acquisition, leasing, construction or improvement of property
(real or personal) or assets, and whether acquired through the direct
acquisition of such property or assets or the acquisition of the Capital Stock
of any Person owning such property or assets, or otherwise.
"Receivable" means a right to receive payment arising from a sale or lease
of goods or services by a Person pursuant to an arrangement with another Person
pursuant to which such other Person is obligated to pay for goods or services
under terms that permit the purchase of such goods and services on credit, as
determined in accordance with GAAP.
"Receivables Entity" means (x) any Receivables Subsidiary or (y) any other
Person that is engaged in the business of acquiring, selling, collecting,
financing or refinancing Receivables, accounts (as defined in the Uniform
Commercial Code as in effect in any jurisdiction from time to time), other
accounts and/or other receivables, and/or related assets.
"Receivables Fees" means distributions or payments made directly or by means
of discounts with respect to any participation interest issued or sold in
connection with, and other fees paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables Financing.
"Receivables Financing" means any financing of Receivables of the Company or
any Restricted Subsidiary that have been transferred to a Receivables Entity in
a Financing Disposition.
"Receivables Subsidiary" means a Subsidiary of the Company that (a) is
engaged solely in the business of acquiring, selling, collecting, financing or
refinancing Receivables, accounts (as defined in the Uniform Commercial Code as
in effect in any jurisdiction from time to time) and other accounts and
receivables (including any thereof constituting or evidenced by chattel paper,
instruments or general intangibles), all proceeds thereof and all rights
(contractual and other), collateral and other assets relating thereto, and any
business or activities incidental or related to such business, and (b) is
designated as a "Receivables Subsidiary" by the Board of Directors.
"refinance" means refinance, refund, replace, renew, repay, modify, restate,
defer, substitute, supplement, reissue, resell or extend (including pursuant to
any defeasance or discharge mechanism); and the terms "refinances," "refinanced"
and "refinancing" as used for any purpose in the Indenture shall have a
correlative meaning.
"Refinancing Indebtedness" means Indebtedness that is Incurred to refinance
any Indebtedness existing on the Issue Date or Incurred in compliance with the
Indenture (including Indebtedness of the Company that refinances Indebtedness of
any Restricted Subsidiary (to the extent permitted in the Indenture) and
Indebtedness of any Restricted Subsidiary that refinances Indebtedness of
another Restricted Subsidiary) including Indebtedness that refinances
Refinancing Indebtedness; PROVIDED, that (1) if the Indebtedness being
refinanced is Subordinated Obligations or Guarantor Subordinated Obligations,
the Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Average Life of
the Indebtedness being refinanced, (2) such Refinancing Indebtedness is Incurred
in an aggregate principal amount (or if issued with original issue discount, an
aggregate issue price) that is equal to or less than the sum of (x) the
aggregate principal amount (or if issued with original issue discount, the
aggregate accreted value) then outstanding of the
75
<PAGE>
Indebtedness being refinanced, plus (y) fees, underwriting discounts, premiums
and other costs and expenses incurred in connection with such Refinancing
Indebtedness, and (3) Refinancing Indebtedness shall not include (x)
Indebtedness of a Restricted Subsidiary that is not a Note Guarantor that
refinances Indebtedness of the Company that was incurred by the Company pursuant
to paragraph (a) of the covenant described under "--Certain
Covenants--Limitation on Indebtedness" or (y) Indebtedness of the Company or a
Restricted Subsidiary that refinances Indebtedness of an Unrestricted
Subsidiary.
"Related Business" means those businesses in which the Company or any of its
Subsidiaries is engaged on the date of the Indenture, or that are related,
complementary, incidental or ancillary thereto or extensions, developments or
expansions thereof.
"Related Taxes" means (x) any taxes, charges or assessments, including but
not limited to sales, use, transfer, rental, ad valorem, value-added, stamp,
property, consumption, franchise, license, capital, net worth, gross receipts,
excise, occupancy, intangibles or similar taxes, charges or assessments (other
than federal, state or local taxes measured by income and federal, state or
local withholding imposed on payments made by a Parent), required to be paid by
such Parent by virtue of its being incorporated or having Capital Stock
outstanding (but not by virtue of owning stock or other equity interests of any
corporation or other entity other than the Company or any of its Subsidiaries),
or being a holding company parent of the Company or having received Capital
Stock of the Company as a capital contribution, or receiving dividends from or
other distributions in respect of the Capital Stock of the Company, or having
guaranteed any obligations of the Company or any Subsidiary thereof, or having
made any payment in respect of any of the items for which the Company is
permitted to make payments to such Parent pursuant to the covenant described
under "--Certain Covenants--Limitation on Restricted Payments," or (y) any other
federal, state, foreign, provincial or local taxes measured by income for which
such Parent is liable up to an amount not to exceed with respect to such federal
taxes the amount of any such taxes that the Company would have been required to
pay on a separate company basis or on a consolidated basis if the Company had
filed a consolidated return on behalf of an affiliated group (as defined in
Section 1504 of the Code, or an analogous provision of state, local or foreign
law) of which it were the common parent, or with respect to state and local
taxes, on a combined basis if the Company had filed a combined return on behalf
of an affiliated group consisting only of the Company and its Subsidiaries.
"Representative" means the trustee, agent or representative (if any) for an
issue of Senior Indebtedness.
"Restricted Payment Transaction" means any Restricted Payment permitted
pursuant to the covenant described under "--Certain Covenants--Limitation on
Restricted Payments," any Permitted Payment, any Permitted Investment, or any
transaction specifically excluded from the definition of the term "Restricted
Payment."
"Restricted Subsidiary" means any Subsidiary of the Company other than an
Unrestricted Subsidiary. For purposes of clause (i) of the definition of the
term "Consolidated Net Income," Dudley Stationery Limited, a company organized
under the laws of England and Wales, and any successor thereto, shall be deemed
to be a Restricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company secured by a
Lien.
"Senior Credit Agreement" means the credit agreement dated as of June 9,
1998, among the Company, the lenders named therein, The Chase Manhattan Bank, as
administrative agent, Bankers Trust Company, as syndication agent, and Merrill
Lynch Capital Corporation, as documentation agent, as such agreement may be
assumed by any successor in interest, and as such agreement may be amended,
supplemented, waived or otherwise modified from time to time, or refunded,
refinanced, restructured, replaced, renewed, repaid, increased or extended from
time to time (whether in whole or in part, whether
76
<PAGE>
with the original agent and lenders or other agents and lenders or otherwise,
and whether provided under the original Senior Credit Agreement or otherwise).
"Senior Credit Facility" means the collective reference to the Senior Credit
Agreement, any Credit Documents (as defined therein), any notes and letters of
credit issued pursuant thereto and any guarantee and collateral agreement,
patent and trademark security agreement, mortgages, letter of credit
applications and other security agreements and collateral documents, and other
instruments and documents, executed and delivered pursuant to or in connection
with any of the foregoing, in each case as the same may be amended,
supplemented, waived or otherwise modified from time to time, or refunded,
refinanced, restructured, replaced, renewed, repaid, increased or extended from
time to time (whether in whole or in part, whether with the original agent and
lenders or other agents and lenders or otherwise, and whether provided under the
original Senior Credit Agreement or one or more other credit agreements,
indentures (including the Indenture) or financing agreements or otherwise).
Without limiting the generality of the foregoing, the term "Senior Credit
Facility" shall include any agreement (i) changing the maturity of any
Indebtedness incurred thereunder or contemplated thereby, (ii) adding
Subsidiaries of the Company as additional borrowers or guarantors thereunder,
(iii) increasing the amount of Indebtedness incurred thereunder or available to
be borrowed thereunder or (iv) otherwise altering the terms and conditions
thereof.
"Senior Subordinated Indebtedness" means the Notes and any other
Indebtedness of the Company that ranks PARI PASSU with the Notes.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"significant subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC, as in effect on the Issue Date.
"S&P" means Standard & Poor's Ratings Service, a division of The McGraw-Hill
Companies, Inc., and its successors.
"Spin-off Distributions" means the formation and distribution by the Company
to its stockholders of Capital Stock of four separate companies that will hold
certain technology solutions, print management, education supplies and corporate
travel services businesses previously operated by the Company.
"Stated Maturity" means, with respect to any security, the date specified in
such security as the fixed date on which the payment of principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency).
"Strategic Restructuring" means the comprehensive restructuring of the
Company, involving the Equity Tender Offer, the Spin-off Distributions, the
equity investment by the Investor, and related financing and other transactions.
"Subordinated Obligations" means any Indebtedness of the Company (whether
outstanding on the date of the Indenture or thereafter Incurred) that is
expressly subordinated in right of payment to the Notes pursuant to a written
agreement. Indebtedness in respect of the Convertible Notes shall not be deemed
to be Subordinated Obligations.
"Subsidiary" of any Person means any corporation, association, partnership
or other business entity of which more than 50% of the total voting power of
shares of Capital Stock or other equity interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person or (ii) one or
more Subsidiaries of such Person.
"Successor Company" shall have the meaning assigned thereto in clause (i)
under "--Merger and Consolidation."
77
<PAGE>
"Temporary Cash Investments" means any of the following: (i) any investment
in (x) direct obligations of the United States of America or any agency or
instrumentality thereof or obligations Guaranteed by the United States of
America or any agency or instrumentality thereof or (y) direct obligations of
any foreign country recognized by the United States of America rated at least
"A" by S&P or "A-1" by Moody's (or, in either case, the equivalent of such
rating by such organization or, if no rating of S&P or Moody's then exists, the
equivalent of such rating by any nationally recognized rating organization),
(ii) overnight bank deposits, and investments in time deposit accounts,
certificates of deposit, bankers' acceptances and money market deposits (or,
with respect to foreign banks, similar instruments) maturing not more than one
year after the date of acquisition thereof issued by (x) any lender under the
Senior Credit Agreement or (y) a bank or trust company that is organized under
the laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America having capital and surplus
aggregating in excess of $250 million (or the foreign currency equivalent
thereof), (iii) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (i) or (ii) above entered
into with a bank meeting the qualifications described in clause (ii) above, (iv)
Investments in commercial paper, maturing not more than one year after the date
of acquisition, with a rating at the time as of which any Investment therein is
made of "P-2" (or higher) according to Moody's or "A-2" (or higher) according to
S&P (or, in either case, the equivalent of such rating by such organization or,
if no rating of S&P or Moody's then exists, the equivalent of such rating by any
nationally recognized rating organization), (v) Investments in securities
maturing not more than one year after the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least "A" by S&P or "A" by Moody's (or, in either case, the equivalent of
such rating by such organization or, if no rating of S&P or Moody's then exists,
the equivalent of such rating by any nationally recognized rating organization),
(vi) investment funds investing 95% of their assets in securities of the type
described in clauses (i)-(v) above (which funds may also hold reasonable amounts
of cash pending investment and/or distribution), (vii) any money market deposit
accounts issued or offered by a domestic commercial bank or a commercial bank
organized and located in a country recognized by the United States of America,
in each case, having capital and surplus in excess of $250 million (or the
foreign currency equivalent thereof), or investments in money market funds
complying with the risk limiting conditions of Rule 2a-7 (or any successor rule)
of the SEC under the Investment Company Act of 1940, as amended, and (viii)
similar short-term investments approved by the Board of Directors in the
ordinary course of business.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. SectionSection
77aaa-77bbbb) as in effect on the date of the Indenture.
"Trade Payables" means, with respect to any Person, any accounts payable or
any indebtedness or monetary obligation to trade creditors created, assumed or
guaranteed by such Person arising in the ordinary course of business in
connection with the acquisition of goods or services.
"Transactions" means, collectively, the Strategic Restructuring, the initial
equity investment by the Investor, the offering and issuance of the Notes, the
initial borrowings under the Senior Credit Facility, the Equity Tender Offer,
the Spin-off Distributions, the 2003 Note Tender Offer, the 2001 Note Exchange
Offer, and all other transactions relating to the Strategic Restructuring or the
financing thereof.
"Trust Officer" means the Chairman of the Board, the President or any other
officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Trustee" means the party named as such in the Indenture until a successor
replaces it and, thereafter, means the successor.
"2001 Note Exchange Offer" means the offer by the Company to exchange shares
of its common stock for its outstanding 5 1/2% Convertible Subordinated Notes
due 2001.
78
<PAGE>
"2003 Note Tender Offer" means the offer by the Company to purchase any and
all of its outstanding 5 1/2% Convertible Subordinated Notes due 2003.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that at
the time of determination is an Unrestricted Subsidiary, as designated by the
Board of Directors in the manner provided below, and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of
the Company (including any newly acquired or newly formed Subsidiary of the
Company) to be an Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any
Lien on any property of, the Company or any other Restricted Subsidiary of the
Company that is not a Subsidiary of the Subsidiary to be so designated;
PROVIDED, that either (A) the Subsidiary to be so designated has total
consolidated assets of $1,000 or less or (B) if such Subsidiary has consolidated
assets greater than $1,000, then such designation would be permitted under the
covenant described under "--Certain Covenants--Limitation on Restricted
Payments." The Board of Directors may designate any Unrestricted Subsidiary to
be a Restricted Subsidiary; PROVIDED, that immediately after giving effect to
such designation (x) the Company could incur at least $1.00 of additional
Indebtedness under paragraph (a) in the covenant described under "--Certain
Covenants--Limitation on Indebtedness" or (y) the Consolidated Coverage Ratio
would be greater than it was immediately prior to giving effect to such
designation. Any such designation by the Board of Directors shall be evidenced
to the Trustee by promptly filing with the Trustee a copy of the resolution of
the Company's Board of Directors giving effect to such designation and an
Officer's Certificate certifying that such designation complied with the
foregoing provisions.
"Voting Stock" of an entity means all classes of Capital Stock of such
entity then outstanding and normally entitled to vote in the election of
directors or all interests in such entity with the ability to control the
management or actions of such entity.
LISTING
Application has been made to list the Notes on the Luxembourg Stock
Exchange. The Certificate of Incorporation of the Company and the legal notice
relating to the issue of the Notes and the Certificate of Incorporation of the
Company will be registered prior to the listing with the Registrar of the
District Court in Luxembourg (GREFFIER EN CHEF DUE TRIBUNAL D' ARRONDISSEMENT A
LUXEMBOURG) where such documents are available for inspection and where copies
thereof can be obtained upon request. As long as the New Notes are listed on the
Luxembourg Stock Exchange, an agent for making payments on, and transfer of,
Notes will be maintained in Luxembourg. The Company expects to initially
designate State Street Bank Luxembourg S.A. as its agent for such purposes.
BOOK-ENTRY; DELIVERY AND FORM
Except as set forth below, the New Notes will be issued in the form of one
or more global notes (the "Global Notes"). The Global Notes will be deposited
with, or on behalf of, DTC, and registered in its name or in the name of Cede &
Co., as its nominee.
Old Notes transferred to institutional "accredited investors," as defined in
Rule 501(a)(1), (2), (3) and (7) under the Securities Act, who are not qualified
institutional buyers or to any other persons who are not qualified institutional
buyers (collectively referred to herein as "Non-Global Purchasers") were issued
in registered form without interest coupons as "Certificated Notes." Upon the
transfer to a qualified institutional buyer of such Certificated Notes initially
issued to a Non-Global Purchaser, such Certificated Notes will, unless the
transferee requests otherwise or the Global Note has previously been exchanged
in whole for Certificated Securities, be exchanged for an interest in the Global
Note representing the principal amount of Notes being transferred.
Ownership of beneficial interests in a Global Note will be limited to
persons who have accounts with DTC ("participants") or persons who hold
interests through participants. Ownership of beneficial interests
79
<PAGE>
in a Global Note will be shown on, and the transfer of that ownership will be
effected only through, records maintained by DTC or its nominee (with respect to
interests of participants) and the records of participants (with respect to
interests of persons other than participants). Qualified institutional buyers
may hold their interests in Global Notes directly through DTC if they are
participants in such system, or indirectly through organizations which are
participants in such system.
Investors may hold their interests in the Global Notes directly through
Cedel Bank or Euroclear, if they are participants in such systems, or indirectly
through organizations that are participants in such system.
So long as DTC, or its nominee, is the registered owner or holder of a
Global Note, DTC or such nominee, as the case may be, will be considered the
sole owner or holder of the New Notes represented by such Global Note for all
purposes under the Indenture and the New Notes. No beneficial owner of an
interest in a Global Note will be able to transfer that interest except in
accordance with DTC's applicable procedures, in addition to those provided for
under the Indenture and, if applicable, those of Euroclear and Cedel Bank.
Payments of the principal of, and interest on, a Global Note will be made to
DTC or its nominee, as the case may be, as the registered owner thereof. Neither
the Company, the Trustee nor any Paying Agent will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Note or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects that DTC or its nominee, upon receipt of any payment of
principal or interest in respect of a Global Note, will credit participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Note as shown on the records of
DTC or its nominee. The Company also expects that payments by participants to
owners of beneficial interests in such Global Note held through such
participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers registered
in the names of nominees for such customers. Such payments will be the
responsibility of such participants.
Transfers between participants in DTC will be effected in the ordinary way
in accordance with DTC rules and will be settled in same-day funds. Transfers
between participants in Euroclear and Cedel Bank will be effected in the
ordinary way in accordance with their respective rules and operating procedures.
The Company expects that DTC will take any action permitted to be taken by a
holder of New Notes (including the presentation of Notes for exchange as
described below) only at the direction of one or more participants to whose
account the DTC interests in a Global Note is credited and only in respect of
such portion of the aggregate principal amount of New Notes as to which such
participant or participants has or have given such direction. However, if there
is an Event of Default under the Notes, DTC will exchange the applicable Global
Note for Certificated Notes, which it will distribute to its participants and
which may be legended as set forth under the heading "Transfer Restrictions."
DEPOSITORY TRUST COMPANY
The Company understands that DTC is a limited purpose trust company
organized under the laws of the State of New York, a "banking organization"
within the meaning of New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the Uniform Commercial
Code and a "Clearing Agency" registered pursuant to the provisions of Section
17A of the Exchange Act. DTC was created to hold securities for its participants
("Direct Participants") and facilitate the clearance and settlement of
securities transactions between participants through electronic book-entry
changes in accounts of its participants, thereby eliminating the need for
physical movement of certificates and certain other organizations. Indirect
access to the DTC system is available to others such as banks, brokers,
80
<PAGE>
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly ("Indirect
Participants").
Although DTC, Euroclear and Cedel Bank are expected to follow the foregoing
procedures in order to facilitate transfers of interests in a Global Note among
participants of DTC, Euroclear and Cedel Bank, they are under no obligation to
perform or continue to perform such procedures, and such procedures may be
discontinued at any time. Neither the Company nor the Trustee will have any
responsibility for the performance by DTC, Euroclear or Cedel Bank or their
respective participants or indirect participants of their respective obligations
under the rules and procedures governing their operations.
If DTC is at any time unwilling or unable to continue as a depositary for
the Global Notes and a successor depositary is not appointed by the Company
within 90 days, the Company will issue Certificated Notes, which may bear the
legend referred to under "Transfer Restrictions," in exchange for the Global
Notes. Holders of an interest in a Global Note may receive Certificated Notes,
which may bear the legend referred to under "Transfer Restrictions," in
accordance with the DTC's rules and procedures in addition to those provided for
under the Indenture.
REGISTRAR AND TRANSFER AGENT
The Trustee will act as registrar and transfer agent for the New Notes (the
"Notes Registrar").
As described under "-- Book-Entry Securities; The Depository Trust Company;
Delivery and Form," so long as the New Notes are in book-entry form,
registration of transfers and exchanges of New Notes will be made through Direct
Participants and Indirect Participants in DTC. If physical certificates
representing the New Notes are issued, registration of transfers and exchanges
of New Notes will be effected without charge by or on behalf of the Company,
but, in the case of a transfer, upon payment (with the giving of such indemnity
as the Company may require) in respect of any tax or other governmental charges
which may be imposed in relation to it.
The Company will not be required to register or cause to be registered any
transfer of New Notes during a period beginning 15 days prior to the mailing of
notice of redemption of New Notes and ending on the day of such mailing.
DESCRIPTION OF THE OLD NOTES
The terms of the Old Notes are identical in all material respects to those
of the New Notes, except that the Old Notes (i) have not been registered under
the Securities Act, and, accordingly, contain terms with respect to transfer
restrictions, (ii) are entitled to certain registration rights under the
Registration Rights Agreement (which rights will terminate upon consummation of
the Exchange Offer, and (iii) are entitled under the Registration Rights
Agreement to an increase in the rate of interest payments thereon in the event
that the Company fails to comply with certain terms of the Registration Rights
Agreement. Certain relevant terms of the Registration Rights Agreement are
described more fully below.
REGISTRATION RIGHTS
The Company agreed with the Placement Agents, for the benefit of the holders
of the Old Notes, that the Company will use its reasonable best efforts, at its
cost, to file and cause to become effective a registration statement with
respect to a registered offer (the "Exchange Offer") to exchange the Old Notes
for an issue of senior subordinated notes of the Company (the "New Notes") with
terms identical to the Old Notes (except that the New Notes will not bear
legends restricting the transfer thereof or include provisions for additional
interest). Upon such registration statement being declared effective, the
Company shall offer the New Notes in return for surrender of the Old Notes. Such
offer shall remain open for not less than 20 business days after the date notice
of the Exchange Offer is mailed to holders. For each Old Note surrendered to the
Company under the Exchange Offer, the holder will receive a New Note of
81
<PAGE>
equal principal amount. Interest on each New Note shall accrue from the last
Interest Payment Date on which interest was paid on the Old Notes so
surrendered. In the event that applicable interpretations of the staff of the
Securities and Exchange Commission (the "Commission") do not permit the Company
to effect the Exchange Offer, or under certain other circumstances, the Company
shall, at its cost, use its best efforts to cause to become effective a shelf
registration statement (the "Shelf Registration Statement") with respect to
resales of the Notes and to keep such Shelf Registration Statement continuously
effective until the second anniversary of the Closing Date, or such shorter
period that will terminate when all Notes covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement. The
Company shall, in the event of such a shelf registration, provide to each holder
copies of the prospectus, notify each holder when the Shelf Registration
Statement for the Notes has become effective and take certain other actions as
are required to permit resales of the Notes. A holder that sells its Notes
pursuant to the Shelf Registration Statement generally will be required to be
named as a selling security holder in the related prospectus and to deliver a
prospectus to purchasers, will be subject to certain of the civil liability
provisions under the Securities Act in connection with such sales and will be
bound by the provisions of the Registration Rights Agreement that are applicable
to such a holder (including certain indemnification obligations).
In the event that the Exchange Offer is not consummated and a Shelf
Registration Statement is not declared effective on or prior to December 10,
1998, the annual interest rate borne by the Notes will be increased by (a) prior
to the 91st day after December 10, 1998, .25% per annum and (b) thereafter, .50%
per annum until the Exchange Offer is consummated or the Shelf Registration
Statement is declared effective.
If the Company effects the Exchange Offer, the Company will be entitled to
close the Exchange Offer 20 business days after the commencement thereof,
PROVIDED that it has accepted all Old Notes theretofore validly surrendered in
accordance with the terms of the Exchange Offer. Old Notes not tendered in the
Exchange Offer shall continue to accrue interest and to be subject to all of the
terms and conditions specified in the Indenture and to the transfer restrictions
described in "Transfer Restrictions," but will not retain any rights under the
Registration Rights Agreement.
This summary of certain provisions of the Registration Rights Agreement does
not purport to be complete and is subject to, and is qualified in its entirety
by reference to, all the provisions of the Registration Rights Agreement, a copy
of which is available from the Company upon request.
TRANSFER RESTRICTIONS
The Old Notes have not been registered under the Securities Act and may not
be offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act.
82
<PAGE>
CERTAIN UNITED STATES FEDERAL TAX CONSIDERATIONS
The following summary describes certain United States federal income tax
consequences of the acquisition, ownership and disposition of the New Notes. The
summary is based on the Internal Revenue Code of 1986, as amended (the "Code"),
and regulations, rulings and judicial decisions as of the date hereof, all of
which may be repealed, revoked or modified so as to result in federal income tax
consequences different from those described below. Such changes could be applied
retroactively in a manner that could adversely affect holders of the Notes. In
addition, the authorities on which this summary is based are subject to various
interpretations. It is therefore possible that the consequences of the
acquisition, ownership and disposition of the Notes may differ from the
treatment described below.
The tax treatment of a holder of the New Notes may vary depending upon the
particular situation of the holder. This summary is limited to investors who
will hold the New Notes as capital assets within the meaning of Section 1221 of
the Code and does not deal with holders that may be subject to special tax rules
(including, but not limited to, insurance companies, tax-exempt organizations,
financial institutions, dealers in securities or currencies, holders whose
functional currency is not the U.S. dollar or holders who will hold the New
Notes as a hedge against currency risks or as part of a straddle, synthetic
security, conversion transaction or other integrated investment comprised of the
New Notes and one or more other investments). The discussion is limited to
holders of New Notes exchanged for Old Notes of which such holders were the
original purchasers and does not address the tax consequences to subsequent
holders of the New Notes.
This summary is for general information only and does not constitute, nor
should it be considered as, legal or tax advice to prospective holders of the
New Notes. Moreover, the summary does not address all aspects of federal income
taxation that may be relevant to holders of the New Notes in light of their
particular circumstances, and it does not address any tax consequences arising
under the laws of any state, local or foreign taxing jurisdiction. Prospective
holders should consult their own tax advisors as to the particular tax
consequences to them of acquiring, holding or disposing of the New Notes.
As used herein, a "United States Holder" of a Note means an individual that
is a citizen or resident of the United States (including certain former citizens
and former longtime residents), a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, an estate the income of which is subject to United States
federal income taxation regardless of its source, or a trust if either (a) the
trust elects to be classified as a domestic trust or (b) a U.S. court is able to
exercise primary supervision over the administration of the trust and one or
more U.S. persons have the authority to control all substantial decisions of the
trust. A "Non-United States Holder" is a holder that is not a United States
Holder.
CONSEQUENCES OF THE EXCHANGE OFFER
An exchange of Old Notes for New Notes pursuant to the Exchange Offer should
not be treated as an "exchange" for federal income tax purposes because the New
Notes should not be considered to differ materially in kind or extent from the
Old Notes. Rather, the New Notes received by a holder should be treated as a
continuation of the Old Notes in the hands of that holder. As a result, there
should be no federal income tax consequences for holders who exchange Old Notes
for New Notes. Such holders will have the same tax basis and holding period in
the New Notes as the Old Notes exchanged therefor. For purposes of the following
discussion, it is assumed that the New Notes and the Old Notes exchanged
therefor will be treated as the same instruments for U.S. federal income tax
purposes, and accordingly references to a "Note" (or with correlative meaning
"Notes") include both a New Note and the Old Note for which that New Note is
exchanged.
83
<PAGE>
STATED INTEREST ON NOTES
Except as set forth below, interest on a Note will generally be taxable to a
United States Holder as ordinary income from domestic sources at the time it is
paid or accrued in accordance with the United States Holder's method of
accounting for tax purposes.
MARKET DISCOUNT
If a United States Holder purchases a Note for an amount that is less than
its principal amount, the amount of the difference will be treated as "market
discount" for U.S. federal income tax purposes, unless such difference is less
than a specified de minimis amount. Under the market discount rules, a United
States Holder will be required to treat any partial principal payment on, or any
gain on the sale, exchange, retirement or other disposition of, a Note as
ordinary income to the extent of the market discount which has not previously
been included in income and is treated as having accrued on such Note during the
period each holder held the Note. In addition, the United States Holder may be
required to defer, until the maturity of the Note or its earlier disposition in
a taxable transaction, the deduction of all or a portion of the interest expense
on any indebtedness incurred or continued to purchase or carry such Note.
Any market discount will be considered to accrue ratably during the period
from the date of acquisition to the maturity date of the Note, unless the United
States Holder elects to accrue on a constant yield method. A United States
Holder may elect to include market discount in income currently as it accrues
(on either a ratable or constant interest method), in which case the rule
described above regarding deferral of interest deductions will not apply. This
election to include market discount in income currently, once made, applies to
all market discount obligations acquired on or after the first taxable year to
which the election applies and may not be revoked without the consent of the
Internal Revenue Service (the "IRS").
AMORTIZABLE BOND PREMIUM
A United States Holder that purchases a Note for an amount in excess of the
principal amount will be considered to have purchased the Note at a "premium." A
United States Holder generally may elect to amortize the premium over the
remaining term of the Note on a constant yield method. However, if the Note is
purchased at a time when the Note may be optionally redeemed for an amount that
is in excess of its principal amount, special rules would apply that could
result in a deferral of the amortization of bond premium until later in the term
of the Note. The amount amortized in any year will be treated as a reduction of
the United States Holder's interest income from the Note. Bond premium on a Note
held by a United States Holder that does not make such an election will decrease
the gain or increase the loss otherwise recognized on disposition of the Note.
The election to amortize premium on a constant yield method, once made, applies
to all debt obligations held or subsequently acquired by the electing United
States Holder on or after the first day of the first taxable year to which the
election applies and may not be revoked without the consent of the IRS.
SALE, EXCHANGE AND RETIREMENT OF NOTES
Upon the sale, exchange, redemption, retirement or other disposition of a
Note, a United States Holder generally will recognize gain or loss equal to the
difference between the amount realized upon the sale, exchange, redemption,
retirement or other disposition (except to the extent attributable to accrued
and unpaid interest which will be taxable as such) and such holder's adjusted
tax basis of the Note. A United States Holder's adjusted tax basis in a Note
will, in general, be the United States Holder's cost therefor, increased by
market discount previously included in income by the United States Holder and
reduced by any amortized premium previously deducted from income by the United
States Holder. Except as described above with respect to market discount or
except to the extent the gain or loss is attributable to accrued but unpaid
stated interest, such gain or loss will be capital gain or loss. For certain
noncorporate
84
<PAGE>
taxpayers (including individuals), the rate of taxation of capital gains will
depend upon (i) the taxpayer's holding period in the capital asset and (ii) the
taxpayer's marginal tax rate for ordinary income. The deductibility of capital
losses is subject to limitations.
NON-UNITED STATES HOLDERS
Under present United States federal income and estate tax law, and subject
to the discussion below concerning backup withholding:
(a) no United States federal withholding tax will be imposed with
respect to the payment by the Company or its paying agent of principal,
premium, if any, or interest on a Note owned by a Non-United States Holder
under an exemption for certain portfolio interest (the "Portfolio Interest
Exception"), provided (i) that such Non-United States Holder does not
actually or constructively own 10% or more of the total combined voting
power of all classes of stock of the Company entitled to vote within the
meaning of section 871(h)(3) of the Code and the regulations thereunder,
(ii) such Non-United States Holder is not a controlled foreign corporation
that is related, directly or constructively, to the Company through stock
ownership, (iii) such Non-United States Holder is not a bank whose receipt
of interest on a Note is described in section 881(c)(3)(A) of the Code and
(iv) such Non-United States Holder satisfies the certification requirements
(described generally below);
(b) no United States federal withholding tax will be imposed generally
with respect to any gain realized by a Non-United States Holder upon the
sale, exchange, redemption, retirement or other disposition of a Note; and
(c) a Note beneficially owned by an individual who at the time of death
is a Non-United States Holder will not be subject to United States federal
estate tax, provided that such individual does not actually or
constructively own 10% or more of the total combined voting power of all
classes of stock of the Company entitled to vote within the meaning of
section 871(h)(3) of the Code and provided that the interest payments with
respect to such Note would not have been, if received at the time of such
individuals death, effectively connected with the conduct of a United States
trade or business by such individual.
To satisfy the requirement referred to in (a)(iv) above, the beneficial
owner of such Note, or a financial institution holding the Note on behalf of
such owner, must provide, in accordance with specified procedures, the Company
or a paying agent of the Company, with a statement to the effect that the
beneficial owner is not a United States Holder. Pursuant to current Treasury
regulations, this statement will satisfy the certification requirements if (1)
the beneficial owner provides its name and address, and certifies, under
penalties of perjury, that it is not a United States Holder (which certification
may be made on an IRS Form W-8 (or substitute form)) or (2) a financial
institution holding the Note on behalf of the beneficial owner in the ordinary
course of its trade or business certifies, under penalties of perjury, that such
statement has been received by it and furnishes a paying agent with a copy
thereof.
If a Non-United States Holder cannot satisfy the requirements of the
Portfolio Interest Exception described in (a) above, payments on a Note made to
such Non-United States Holder will be subject to a 30% withholding tax unless
the beneficial owner of the Note provides the Company or its paying agent, as
the case may be, with a properly executed (1) IRS Form 1001 (or substitute form)
claiming an exemption from or reduction of withholding under the benefit of a
tax treaty or (2) IRS Form 4224 (or substitute form) stating that interest paid
on the Note is not subject to withholding tax because it is effectively
connected with the beneficial owner's conduct of a trade or business in the
United States.
Treasury regulations, which will become generally effective January 1, 2000,
modify certain of the certification requirements described above. It is possible
that the Company and other withholding agents may request new withholding
exemption forms from holders in order to qualify for continued exemption from
withholding under the Treasury regulations when they become effective.
85
<PAGE>
If a Non-United States Holder is engaged in a trade or business in the
United States and income in respect of a Note is effectively connected with the
conduct of such trade or business, the Non-United States Holder, although exempt
from United States federal withholding tax as discussed above, will be subject
to United States federal income tax on such income on a net income basis in the
same manner as if it were a United States Holder. In addition, if such Holder is
a foreign corporation, it may be subject to a branch profits tax equal to 30%
(unless reduced or eliminated by an applicable income tax treaty) of its
effectively connected earnings and profits for the taxable year, subject to
adjustments.
Any gain or income realized upon the sale, exchange, retirement or other
disposition of a Note generally will not be subject to United States federal
income tax unless (i) such gain or income is effectively connected with the
conduct of a trade or business in the United States by the Non-United States
Holder or (ii) in the case of a Non-United States Holder who is an individual,
such individual is present in the United States for 183 days or more in the
taxable year of such sale, exchange, retirement or other disposition, and
certain other conditions are met.
INFORMATION REPORTING AND BACKUP WITHHOLDING
In general, information reporting requirements will apply to payments on a
Note and to the proceeds of the sale of a Note made to United States Holders
other than certain exempt recipients (such as corporations). A 31% backup
withholding tax will apply to such payments if the United States Holder fails to
provide a taxpayer identification number or certification of foreign or other
exempt status or fails to report in full dividend and interest income.
Under current regulations, no information reporting or backup withholding
will be required with respect to payments made by the Company or any paying
agent to Non-United States Holders if a statement described in (a)(iv) under
"--Non-United States Holders" has been received and the payor does not have
actual knowledge that the beneficial owner is a United States person.
In addition, backup withholding and information reporting will not apply if
payments on a Note are paid or collected by a foreign office of a custodian,
nominee or other foreign agent on behalf of the beneficial owner of such Note,
or if a foreign office of a broker (as defined in applicable U.S. Treasury
regulations) pays the proceeds of the sale of a Note to the owner thereof. If,
however, such nominee, custodian, agent or broker is, for United States federal
income tax purposes, a United States person, a controlled foreign corporation or
a foreign person that derives 50% or more of its gross income for certain
periods from the conduct of a trade or business in the United States, such
payments will be subject to information reporting (but not backup withholding),
unless (1) such custodian, nominee, agent or broker has documentary evidence in
its records that the beneficial owner is not a United States person and certain
other conditions are met or (2) the beneficial owner otherwise establishes an
exemption. Treasury regulations which will become generally effective January 1,
2000, modify certain of the certification requirements for backup withholding.
It is possible that the Company and other withholding agents may request a new
withholding exemption form from holders in order to qualify for continued
exemption from backup withholding under Treasury regulations when they become
effective.
Payments on a Note paid to the beneficial owner of a Note by a United States
office of a custodian, nominee or agent, or the payment by the United States
office of a broker of the proceeds of sale of a Note, will be subject to both
backup withholding and information reporting unless the beneficial owner
provides the statement referred to in (a)(iv) above and the payor does not have
actual knowledge that the beneficial owner is a United States person or
otherwise establishes an exemption.
Any amounts withheld under the backup withholding rules will be credited
toward such Holder's United States federal income tax liability, if any. To the
extent that the amounts withheld exceed the Holder's tax liability, the excess
may be refunded to the Holder provided the required information is furnished to
the IRS. In addition to providing the necessary information, the Holder must
file a United States tax return in order to obtain a refund of the excess
withholding.
86
<PAGE>
THE FEDERAL INCOME TAX SUMMARY SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S PARTICULAR
SITUATION. PROSPECTIVE AND CURRENT UNITED STATES HOLDERS AND NON-UNITED STATES
HOLDERS OF THE NOTES ARE URGED TO CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO
THE TAX CONSEQUENCES TO THEM OF THE ACQUISITION, OWNERSHIP AND DISPOSITION OF
THE NOTES, INCLUDING THE TAX CONSEQUENCES UNDER UNITED STATES FEDERAL, STATE,
LOCAL, FOREIGN AND OTHER TAX LAWS AND THE EFFECTS OF CHANGES IN SUCH LAWS.
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Notes for its own account in connection
with the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. This Prospectus, as it may be
amended or supplemented from time to time, may be used by Participating
Broker-Dealers during the period referred to below in connection with resales of
New Notes received in exchange for Old Notes if such Old Notes were acquired by
such Participating Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities. The Company has agreed
that this Prospectus, as it may be amended or supplemented from time to time,
may be used by a Participating Broker-Dealer in connection with resales of such
New Notes for a period ending 180 days after the last date of acceptance for the
Exchange Offer. See "The Exchange Offer -- Resales of New Notes."
New Notes received by broker-dealers for their own accounts in connection
with the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the New Notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or at negotiated prices. Any such resale may be
made directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such New Notes. Any broker-dealer
that resells New Notes that were received by it for its own account in
connection with the Exchange Offer and any broker or dealer that participates in
a distribution of such New Notes may be deemed to be an "underwriter" within the
meaning of the Securities Act, and any profit on any such resale of New Notes
and any commissions or concessions received by any such persons may be deemed to
be underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
The Company shall not be liable for any delay by the Depository or any
Participant or Indirect Participant in identifying the beneficial owners of the
related New Notes and each such person may conclusively rely on, and shall be
protected in relying on, instructions from the Depository for all purposes
(including with respect to the registration and delivery, and the respective
principal amounts, of the New Notes to be issued).
LEGAL MATTERS
The validity of the New Notes being offered hereby and certain other legal
matters regarding the Notes will be passed upon for the Company by Wilmer,
Cutler & Pickering, Washington, D.C.
EXPERTS
The historical financial statements incorporated in this Registration
Statement on Form S-4 by reference to the Company's Annual Report on Form 10-K
for the year ended April 25, 1998 and the Company's Current Reports on Form 8-K
filed April 22, 1998 and May 26, 1998 have been audited by
87
<PAGE>
various independent accountants. The companies and periods covered by these
audits are indicated in the individual accountants' reports. Such financial
statements have been so incorporated in reliance on the reports of the various
independent accountants given on the authority of such firms as experts in
auditing and accounting.
GENERAL LISTING INFORMATION
LISTING
Application has been made to list the Notes on the Luxembourg Stock
Exchange. The Certificate of Incorporation of the Company and the legal notice
relating to the issue of the Notes will be deposited prior to the listing with
the Registrar of the District Court in Luxembourg (GREFFIER EN CHEF DU TRIBUNAL
D' ARRONDISSEMENT A LUXEMBOURG), where such documents are available for
inspection and where copies thereof can be obtained upon request. As long as the
Notes are listed on the Luxembourg Stock Exchange, an Agent for making payments
on, and transfers of, Notes will be maintained in Luxembourg.
88
<PAGE>
PRO FORMA COMBINED FINANCIAL DATA
(UNAUDITED)
The unaudited pro forma financial statements give effect to (i) the Equity
Tender, (ii) the Distributions, (iii) the Equity Investment, (iv) the exchange
of the Company's 5 1/2% convertible subordinated notes due 2001 for common stock
at an exchange rate of 15.461 shares per $1,000 principal amount, (the "2001
Note Exchange Offer") (v) the repurchase of the 5 1/2% convertible subordinated
notes due 2003 for a purchase price of 94.5% of the principal amount, plus
accrued interest (the "2003 Note Tender") and (vi) the Financing Transactions.
The unaudited pro forma combined financial statements do not give effect to the
allocation of corporate overhead to the Spin-Off Companies.
A pro forma combined balance sheet as of July 25, 1998 has not been included
as it is the same as the historical consolidated balance sheet as of July 25,
1998 as all of the transactions for which the pro forma financial statements
give effect occurred prior to July 25, 1998.
The pro forma combined statement of operations for the three months ended
July 25, 1998 gives effect to (i) the Equity Tender, (ii) the Distributions,
(iii) the Equity Investment, (iv) the 2001 Note Offer, (v) the 2003 Note Tender,
(vi) the Financing Transactions and (vii) the business combinations accounted
for under the purchase method during Fiscal Year 1999 (the "Fiscal 1999 Purchase
Acquisitions"), as if all such transactions had occurred on April 26, 1998. The
pro forma combined statement of operations for the three months ended July 25,
1998 includes (i) the unaudited financial information of the Company for the
three months ended July 25, 1998 and (ii) the unaudited financial information of
the Fiscal 1999 Purchase Acquisitions for the period from April 26, 1998 through
their respective acquisition dates.
The pro forma combined statement of operations for the fiscal year ended
April 25, 1998 gives effect to (i) the Equity Tender, (ii) the Distributions,
(iii) the Equity Investment, (iv) the 2001 Note Offer, (v) the 2003 Note Tender,
(vi) the Financing Transactions, (vii) the business combinations accounted for
under the purchase method during Fiscal Year 1998 (the "Fiscal 1998 Purchase
Acquisitions") and (viii) the Fiscal 1999 Purchase Acquisitions, as if all such
transactions had occurred on April 27, 1997. The pro forma combined statement of
operations for the fiscal year ended April 25, 1998 includes (i) the audited
financial information of the Company for the fiscal year ended April 25, 1998,
(ii) the unaudited financial information of the Fiscal 1998 Purchase
Acquisitions for the period from April 27, 1997 through their respective
acquisition dates and (iii) the unaudited financial information of the Fiscal
1999 Purchase Acquisitions for the fiscal year ended April 25, 1998.
The unaudited pro forma combined financial data presented herein does not
purport to represent the results that the Company would have obtained had the
transactions which are the subject of pro forma adjustments occurred at the
beginning of the applicable periods, as assumed, or the future results of the
company. The results of the companies included in the Spin-Off Companies have
been reflected as discontinued operations in the Company's historical statement
of operations. The pro forma combined financial statements should be read in
conjunction with the Company's audited consolidated financial statements that
are incorporated by reference into this Prospectus.
F-1
<PAGE>
U.S. OFFICE PRODUCTS COMPANY
PRO FORMA COMBINED STATEMENT OF OPERATIONS
FOR THE THREE MONTHS ENDED JULY 25, 1998
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
U.S. OFFICE FISCAL 1999
PRODUCTS PURCHASE PRO FORMA PRO FORMA
COMPANY ACQUISITIONS ADJUSTMENTS COMBINED
------------ ----------- ----------- ------------
<S> <C> <C> <C> <C>
Revenues.................................................. $ 651,949 $ 5,602 $ $ 657,551
Cost of revenues.......................................... 474,285 4,043 478,328
------------ ----------- ----------- ------------
Gross profit............................................ 177,664 1,559 179,223
Selling, general and administrative expenses.............. 148,822 1,176 149,998
Amortization expense...................................... 5,959 3 17(b) 5,979
Strategic Restructuring Plan costs........................ 97,503 (97,503)(c)
Operating restructuring costs............................. 8,726 8,726
------------ ----------- ----------- ------------
Operating income (loss)................................. (83,346) 380 97,486 14,520
Other (income) expense:
Interest expense........................................ 18,888 18 8,165(d) 27,071
Interest income......................................... (366) (1) 367(d)
Other income............................................ (410) (2) (412)
------------ ----------- ----------- ------------
Income (loss) from continuing operations before provision
for (benefit from) income taxes......................... (101,458) 365 88,954 (12,139)
Provision for (benefit from) income taxes................. (17,915) 90 11,804(e) (6,021)
------------ ----------- ----------- ------------
Income (loss) from continuing operations.................. $ (83,543) $ 275 $ 77,150 $ (6,118)
------------ ----------- ----------- ------------
------------ ----------- ----------- ------------
Weighted average shares outstanding:
Basic................................................... 35,073 36,517(f)
Diluted................................................. 35,073 36,517(f)
Loss per share from continuing operations:
Basic................................................... $ (2.38) $ (0.17)
Diluted................................................. $ (2.38) $ (0.17)
</TABLE>
See accompanying notes to pro forma combined financial statements.
F-2
<PAGE>
U.S. OFFICE PRODUCTS COMPANY
PRO FORMA COMBINED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED APRIL 25, 1998
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
U.S. OFFICE FISCAL 1998 FISCAL 1999
PRODUCTS PURCHASE PURCHASE PRO FORMA PRO FORMA
COMPANY ACQUISITIONS ACQUISITIONS ADJUSTMENTS COMBINED
------------ ----------- ----------- ----------- ------------
<S> <C> <C> <C> <C> <C>
Revenues..................................... $ 2,611,740 $ 164,732 $ 27,545 $ $ 2,804,017
Cost of revenues............................. 1,884,892 106,861 17,246 2,008,999
------------ ----------- ----------- ----------- ------------
Gross profit............................... 726,848 57,871 10,299 795,018
Selling, general and administrative
expenses................................... 591,463 40,272 7,656 (2,373)(a) 637,018
Amortization expense......................... 19,938 80 14 4,954(b) 24,986
Operating restructuring costs................ 6,188 6,188
------------ ----------- ----------- ----------- ------------
Operating income........................... 109,259 17,519 2,629 (2,581) 126,826
Other (income) expense:
Interest expense........................... 37,836 623 115 69,712(d) 108,286
Interest income............................ (1,853) (190) 2,043(d)
Other...................................... (7,146) (224) 35 (7,335)
------------ ----------- ----------- ----------- ------------
Income from continuing operations before
provision for income taxes................. 80,422 17,310 2,479 (74,336) 25,875
Provision for income taxes................... 36,946 2,378 298 (19,543)(e) 20,079
------------ ----------- ----------- ----------- ------------
Income from continuing operations............ $ 43,476 $ 14,932 $ 2,181 $ (54,793) $ 5,796
------------ ----------- ----------- ----------- ------------
------------ ----------- ----------- ----------- ------------
Weighted average shares outstanding:
Basic...................................... 29,889 36,517(f)
Diluted.................................... 30,480 37,105(f)
Income per share from continuing operations:
Basic...................................... $ 1.45 $ 0.16
Diluted.................................... $ 1.43 $ 0.16
</TABLE>
See accompanying notes to pro forma combined financial statements.
F-3
<PAGE>
U.S. OFFICE PRODUCTS COMPANY
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS
(IN THOUSANDS)
(UNAUDITED)
UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS ADJUSTMENTS
(a) Adjustment to reflect reductions in executive compensation as a result of
the elimination of certain executive positions and the renegotiations of
executive compensation agreements resulting from certain acquisitions. The
Company believes that these reductions are expected to remain in place for
the forseeable future and are not reasonably likely to affect operating
performance.
(b) Adjustment to reflect the increase in amortization expense relating to
goodwill recorded in purchase accounting related to the Fiscal 1998 and
Fiscal 1999 Purchase Acquisitions for the periods prior to the respective
dates of acquisition. The Company has recorded goodwill amortization in the
historical financial statements from the respective dates of acquisition
forward. The goodwill is being amortized over estimated lives ranging from
20 to 40 years for the Fiscal 1998 and the Fiscal 1999 Purchase
Acquisitions.
(c) Adjustment to reflect the reduction of Strategic Restructuring Plan costs.
(d) Adjustment to reflect the increase in net interest expense, at a weighted
average rate of 9.2%, resulting from the increase in debt outstanding to
$1,212,939 at July 25, 1998 as a result of the Equity Tender, partially
offset by the proceeds from the Equity Investment, the effects of the 2001
Note Exchange Offer and the 2003 Note Tender and repayment of the Company's
existing credit facility. The weighted average interest rate of 9.2% was
determined based upon $785.0 outstanding under the terms of the Company's
$1,225 million credit facility (the "Credit Facility") and the Company's
other indebtedness primarily at annual interest rates of LIBOR plus margins
ranging from 2.25% to 2.5% (approximately 7.9% to 8.2%) and the issuance of
the Notes at an annual interest rate of approximately 9.75%, plus commitment
fees on unused balances and amortization of the related debt issue costs.
Pro forma interest expense under the Credit Facility will fluctuate $3,925
on an annual basis for each .5% change in LIBOR. Depending on market
conditions when funds are borrowed under the Credit Facility, the interest
rates may vary from that indicated herein.
(e) Adjustment to calculate the provision for (benefit from) income taxes on the
combined pro forma results at effective tax rates of approximately 50% and
78% for the three months ended July 25, 1998 and fiscal year ended April 25,
1998, respectively. The difference between the effective tax rates and the
statutory tax rate of 35% relates primarily to state income taxes and
non-deductible goodwill amortization expense. This adjustment assumes that
all companies were taxed at the effective tax rates regardless of how they
were taxed prior to being acquired by the Company, including those companies
that previously paid no taxes under Subchapter S.
(f) Basic pro forma earnings per share is calculated based upon 36,517 weighted
average shares outstanding. The weighted average shares outstanding used to
calculate diluted pro forma earnings per share for the year ended April 25,
1998 is based upon the basic weighted average shares outstanding plus 591
common stock equivalents considered to be outstanding related to stock
options.
F-4
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFER MADE HEREBY TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MAY NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITY OTHER THAN THE
NEW NOTES OFFERED HEREBY, NOR DOES IT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY TO ANY
PERSON IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
Summary......................................... 7
Risk Factors.................................... 17
Use of Proceeds................................. 26
Capitalization.................................. 27
The Exchange Offer.............................. 28
Description of the New Notes.................... 36
Description of the Old Notes.................... 81
Certain United States Federal Tax
Considerations................................ 83
Plan of Distribution............................ 87
Legal Matters................................... 87
Experts......................................... 87
Pro Forma Combined Financial Data............... F-1
</TABLE>
OFFER FOR ALL OUTSTANDING
9 3/4% SENIOR SUBORDINATED NOTES
DUE 2008
IN EXCHANGE FOR
9 3/4% SENIOR SUBORDINATED NOTES
DUE 2008
THAT HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933
OF
[LOGO]
---------------------
PROSPECTUS
NOVEMBER 5, 1998
---------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section of the USOP Amended and Restated Certificate of Incorporation
provides for indemnification of the directors, officers, employees and agents of
USOP to the full extent currently permitted by law.
Section 145 of the Delaware General Corporation Law ("DGCL") empowers a
Delaware corporation to indemnify any person who was or is, 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 such corporation) by reason of the fact that
such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, such person had no reasonable cause to believe his conduct was
unlawful. A Delaware corporation may indemnify such persons against expenses
(including attorneys' fees) in actions brought by or in the right of the
corporation to procure a judgment in its favor under the same conditions, except
that no indemnification is permitted 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 to the extent 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, in view of all circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the Court of Chancery or
other such court shall deem proper. To the extent such person has been
successful on the merits or otherwise in defense of any action referred to
above, or in defense of any claim, issue or matter therein, the corporation must
indemnify such person against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith. The indemnification
and advancement of expenses provided for in, or granted pursuant to, Section 145
is not 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.
Section 145 also provides that a corporation may maintain insurance against
liabilities for which indemnification is not expressly provided by the statute.
In addition, the USOP Amended and Restated Certificate of Incorporation, as
permitted by Section 102(b) of the DGCL, limits directors' liability to USOP and
its stockholders by eliminating liability in damages for breach of fiduciary
duty. Section 5.5 of the USOP Amended and Restated Certificate of Incorporation
provides that neither USOP nor its stockholders may recover damages from USOP
directors for breach of their fiduciary duties in the performance of their
duties as directors of USOP. As limited by Section 102(b), this provision
cannot, however, have the effect of indemnifying any director of USOP in the
case of liability (i) for a breach of the director's duty of loyalty, (ii) for
acts of omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for unlawful payments of dividends or unlawful
stock repurchases or redemptions as provided in Section 174 of the DGCL or (iv)
for any transactions for which the director derived an improper personal
benefit.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) See Exhibit Index for list of exhibits.
(b) Not applicable.
(c) Not applicable.
II-1
<PAGE>
ITEM 22. UNDERTAKINGS
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant also hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
The undersigned registrants hereby undertake to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
The undersigned registrant hereby undertakes as follows: that prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other items of the applicable form.
The registrant undertakes that every prospectus (i) that is filed pursuant
to the immediately preceding paragraph, or (ii) that purports to meet the
requirements of section 10(a)(3) of the Act and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrants pursuant to the foregoing provisions, or otherwise, the registrants
have been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrants of expenses incurred
or paid by a director, officer or controlling person of the registrants in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by them is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes: (1) To file, during any period
in which offers or sales are being made, a post-effective amendment to this
registration statement: (i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed
II-2
<PAGE>
that which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; (2) That, for
the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. (3)
To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrants have
duly caused Amendment No. 2 this registration statement to be signed on their
behalf by the undersigned, thereunto duly authorized, in the City of Washington,
District of Columbia, on November 5, 1998.
<TABLE>
<S> <C> <C>
U.S. OFFICE PRODUCTS COMPANY
By: /s/ MARK D. DIRECTOR
-----------------------------------------
Name: Mark D. Director
Title: Executive Vice President
GUARANTORS
By: /s/ DONALD H. PLATT
-----------------------------------------
Name: Donald H. Platt
Title: Authorized Signatory for each
Additional Registrant listed on this
Registration Statement
</TABLE>
II-4
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Thomas Morgan and
Mark D. Director, and both of them, either of whom may act without the joinder
of the other, as his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities to sign any and all amendments (including
post-effective amendments) to this Registration Statement and all registration
statements for the same offering filed pursuant to Rule 462 under the Securities
Act of 1933, and to file the same, with all exhibits thereto and all other
documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to perform each and every
act and thing appropriate or necessary to be done, as full and for all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------ --------------------------- ---------------------------
<S> <C> <C>
* President, Chief Executive November 5, 1998
- ------------------------------ Officer and Director of
Thomas Morgan U.S. Office Products
Company (Principal
Executive Officer),
Director of Mail Boxes
Etc., and Director of Mail
Boxes, Etc., USA, Inc.
* Executive Vice November 5, 1998
- ------------------------------ President--Financial, Chief
Joseph T. Doyle Financial Officer and
Treasurer of U.S. Office
Products Company (Principal
Financial & Accounting
Officer) and Principal
Financial & Accounting
Officer for each Additional
Registrant listed on this
Registration Statement.
* Chairman of the Board of November 5, 1998
- ------------------------------ U.S. Office Products
Charles P. Pieper Company
* Director of U.S. Office November 5, 1998
- ------------------------------ Products Company
Kevin J. Conway
* Director of U.S. Office November 5, 1998
- ------------------------------ Products Company
Frank P. Doyle
* Director of U.S. Office November 5, 1998
- ------------------------------ Products Company
Brian D. Finn
* Director of U.S. Office November 5, 1998
- ------------------------------ Products Company
L. Dennis Kozlowski
* Director of U.S. Office November 5, 1998
- ------------------------------ Products Company
Milton H. Kuyers
* Director of U.S. Office November 5, 1998
- ------------------------------ Products Company
Edward J. Mathias
* Director of U.S. Office November 5, 1998
- ------------------------------ Products Company
Allon H. Lefever
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------ --------------------------- ---------------------------
<S> <C> <C>
* Director of the Corporate November 5, 1998
- ------------------------------ Guarantors listed below,
Mark D. Director and Director of Expert
Office Services, Inc.
* Director of the Corporate November 5, 1998
- ------------------------------ Guarantors listed below
Donald H. Platt
LLC GUARANTORS:
By: U.S. Office Products
Company, as Sole Member of the
LLC Guarantors listed below
* Executive Vice President-- November 5, 1998
- ------------------------------ Administration, of U.S.
Mark D. Director Office Products Company
GLOBAL MAILBOX EXPRESS, LLC
By: Mail Boxes, Etc., USA,
Inc., Its Managing Member
* Vice President of Mail November 5, 1998
- ------------------------------ Boxes, Etc., USA, Inc.
Mark D. Director
* Director of Dameron-Pierson November 5, 1998
- ------------------------------ Company, Limited
Robert C. Schroeder
* Director of Expert Office November 5, 1998
- ------------------------------ Services, Inc.
Jay L. Mutschler
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Robert A. Knoll Action Wholesale Service,
Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Arthur Maxwell Affordable Interior
Systems, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Jerry Holschen American Loose
Leaf/Business Products,
Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
J. Daniel Mahoney Andrews Office Supply &
Equipment Co.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Stuart N. Johnson Bindery Systems, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of Bob
Robert Brines Brines Office Supply Co.
* Pesident (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Arnold V. Malm Carithers-Wallace-Courtneay,
LLC
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
William G. Robbins, II Carolina Office Equipment
Company
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------ --------------------------- ---------------------------
<S> <C> <C>
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Warren B. Terry, Jr. Central Texas Office
Products, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
John M. Frisk Copenhaver Holdings, LLC
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Arnold V. Malm Courtland-Cain, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
John Ridell Dameron-Pierson Company,
Limited
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Jack B. Dulworth Dulworth Office Furniture
Company
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Jay L. Mutschler Expert Office Services,
Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of Fort
Patrick T. Cullen Smith Office Supply, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Michael J. Barnell Forty-Fifteen Papin
Redevelopment Corporation
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Thomas Reaser General Office Products
Company
GLOBAL MAILBOX EXPRESS, LLC
By: Mailboxes, Etc., USA,
Inc., Its Managing Member
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
James H. Amos, Jr. Mailboxes, Etc., USA, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of J.H.
John H. Whitley Whitley., Co.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Arthur A. Hasse Kentwood Office Furniture,
Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Leonard R. Ganz Landmark Industries, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of Mail
James H. Amos, Jr. Boxes, Etc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of Mail
James H. Amos, Jr. Boxes, Etc., USA, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Stephen D. Flax McWhorter's, Inc.
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------ --------------------------- ---------------------------
<S> <C> <C>
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of Mile
Vassilios Sirpolaidis High Office Supply, LLC
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of Mills
Donald Nickleson Morris Business Products
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Elliott Nelson Modern Foods Systems, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Elliott Nelson Modern Vending, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Larry Crawford Morris Office Machines,
Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
William J. Costigan, Jr. National Office Supply,
Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of New
Sandford A. Grodin Mexico Office Solutions,
Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of Pear
Kathey Pear Commercial Interiors, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of Price
Milford H. Marchant Modern, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of Radar
Earlis Johnson Business Systems, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Michael J. Rainen Rainen Business Interiors,
Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of Sagot
Robert S. Sagot Office Interiors, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Steven J. Sletten Sletten Vending Service,
Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Sandford A. Grodin Sturgis Acquisition Corp.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Michael S. Sweitzer Sweitzer's Offset Services,
Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Jack Huguley Businessworks, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of The
Craig A. Cooper H.H. West Company
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of The
John A. Thayer J. Thayer Company, LLC
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------ --------------------------- ---------------------------
<S> <C> <C>
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of The
Barry Carlson Office Furniture Store,
Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of The
Carlton L. Miller Office Works, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of The
Anne T. Smyth Systems House, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of USOP
Kevin J. Thimjon Merchandising Company
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of U.S.
Roger Choquette Office Furniture, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of U.S.
Roger Choquette Office Furniture Rentals,
Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of U.S.
David C. Gezon Office Products -Great
Lakes, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of U.S.
Craig A. Cooper Office Products -Midwest,
LLC
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of U.S.
Roger Kane Office Products of Northern
Wisconsin, Inc.
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of U.S.
Richard D. Corwin Office Products Southern
California
* President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Peter R. Wechsler Vend-Rite Service
Corporation
/s/ DAVID MACISAAC President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
David MacIsaac Woburn Vending, Inc.
/s/ MARK D. DIRECTOR President (Principal November 5, 1998
- ------------------------------ Executive Officer) of
Mark D. Director USOPN, Inc.
*By: /s/ MARK D. DIRECTOR
- ------------------------------
Mark D. Director
Attorney-in-fact
</TABLE>
II-9
<PAGE>
CORPORATE GUARANTORS
Action Wholesale Service, Inc.
Affordable Interior Systems, Inc.
American Loose Leaf/Business Products, Inc.
Andrews Office Supply & Equipment Co.
Bindery Systems, Inc.
Bob Brines Office Supply Co.
Carolina Office Equipment Company
Central Texas Office Products, Inc.
Courtland-Cain, Inc.
Dameron-Pierson Company, Limited
Dulworth Office Furniture Company
Fort Smith Office Supply, Inc.
Forty-Fifteen Papin Redevelopment Corporation
General Office Products Company
J.H. Whitley Co., Inc.
Kentwood Office Furniture, Inc.
Landmark Industries Inc.
Mail Boxes, Etc., USA, Inc.
McWhorter's, Inc.
Mills Morris Business Products, Inc.
Modern Foods Systems, Inc.
Modern Vending, Inc.
Morris Office Machines, Inc.
National Office Supply, Inc.
New Mexico Office Solutions, Inc.
Pear Commercial Interiors, Inc.
Price Modern, Inc.
Radar Business Systems, Inc.
Rainen Business Interiors, Inc.
Sagot Office Interiors, Inc.
Sletten Vending Service, Inc.
Sturgis Acquisition Corp.
Sweitzer's Offset Services, Inc.
Businessworks, Inc.
The H.H. West Company
The Office Furniture Store, Inc.
The Office Works, Inc.
The Systems House, Inc.
USOP Merchandising Company
U.S. Office Furniture, Inc.
U.S. Office Furniture Rentals, Inc.
U.S. Office Products--Great Lakes, Inc.
U.S. Office Products of Northern Wisconsin, Inc.
U.S. Office Products Southern California
Vend-Rite Service Corporation
Woburn Vending, Inc.
USOPN, Inc.
II-10
<PAGE>
LLC GUARANTORS
Carithers-Wallace-Courtenay, LLC
Copenhaver Holdings, LLC
Mile High Office Supply, LLC
The J. Thayer Company, LLC
U.S. Office Products--Midwest, LLC
II-11
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------------------------
<S> <C>
3.3 Restated Articles of Incorporation of Action Wholesale Service, Inc.
3.4 Amended and Restated By-Laws of Action Wholesale Service, Inc.
3.5 Restated Articles of Organization of Affordable Interior Systems, Inc.
3.6 Amended and Restated By-Laws of Affordable Interior Systems, Inc.
3.7 Amendment of Articles of Incorporation of American Loose Leaf/Business Products, Inc., N/K/A US
Office Products, Midwest District, Inc.
3.8 Amended and Restated By-Laws of US Office Products, Midwest District, Inc.
3.9 Amended and Restated Articles of Incorporation of Andrews Office Supply & Equipment Co.
3.10 Amended and Restated By-Laws of Andrews Office Supply & Equipment Company
3.11 Amended and Restated Articles of Incorporation of Bindery Systems, Inc.
3.12 Amended and Restated By-Laws of Bindery Systems, Inc.
3.13 Restated Articles of Incorporation of Bob Brines Office Supply Co., N/K/A US Office Products, Midwest
District, Inc.
3.14 Amended and Restated By-Laws of US Office Products, Midwest District, Inc.
3.15 Amended and Restated Certificate of Incorporation of Businessworks, Inc., N/K/A US Office Products,
Mississippi, Inc.
3.16 Amended and Restated By-Laws of US Office Products, Mississippi, Inc.
3.17 Certificate of Amendment and Restatement to the Certificate of Formation of Carithers-
Wallace-Courtenay, LLC
3.18 Operating Agreement of Carithers-Wallace-Courtenay, LLC A Delaware Limited Liability Company
3.19 Amended and Restated Articles of Incorporation of US Office Products, Carolinas District, Inc.
3.20 Amended and Restated By-Laws of US Office Products, Carolinas District, Inc.
3.21 Restated Articles of Incorporation (without amendment) of Central Texas Office Products, Inc.
3.22 Amended and Restated By-Laws of Central Texas Office Products, Inc.
3.23 Certificate of Amendment and Restatement to the Certificate of Formation of Copenhaver Holdings, LLC
3.24 Operating Agreement of Copenhaver Holdings, LLC A Delaware Limited Liability Company
3.25 Articles of Amendment and Restatement to the Articles of Incorporation of Courtland-Cain, Inc.
3.26 Amended and Restated By-Laws of Courtland-Cain, Inc.
3.27 Amended and Restated Articles of Incorporation of Dameron-Pierson Company, Limited, N/K/A US Office
Products, Louisiana District, Inc.
3.28 By-Laws of US Office Products, Louisiana District, Inc.
3.29 Articles of Amendment by Shareholders to the Articles of Incorporation of Dulworth Office Furniture
Company
3.30 Amended and Restated By-Laws of Dulworth Office Furniture Company
3.31 Articles of Amendment and Restatement of Expert Office Services, Inc.
3.32 Amended and Restated By-Laws of Expert Office Services, Inc.
3.33 Certificate of Amendment of Fort Smith Office Supply, Inc., N/K/A US Office Products Mid-South
District, Inc.
3.34 Amended and Restated By-Laws of US Office Products, Mid-South District, Inc.
3.35 Articles of Association of Forty-Fifteen Papin Redevelopment Corporation
3.36 Amended and Restated By-Laws of Forty-Fifteen Papin Redevelopment Corporation
3.37 Certificate of Amended and Restated Articles of Incorporation of US Office Products, Upper Mid-West
District, Inc.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------------------------
<S> <C>
3.38 Amended and Restated By-Laws of US Office Products, Upper Mid-West District, Inc.
3.39 Articles of Organization of Global Mailbox Express, LLC
3.40 Operating Agreement for Global Mailbox Express, LLC, A Florida Limited Liability Company
3.41 Amended and Restated Certificate of Incorporation of US Office Products, Milwaukee District, Inc.
3.42 Amended and Restated By-Laws of US Office Products, Milwaukee District, Inc.
3.43 Articles of Restatement with Certificate for Restated Articles of Incorporation for J. H. Whitley
Co., Inc. N/K/A US Office Products, Mid-Atlantic District, Inc.
3.44 Amended and Restated By-Laws of US Office Products, Mid-Atlantic District, Inc.
3.45 Certificate of Amendment and Restatement to the Certificate of Formation of The J. Thayer Company,
LLC
3.46 Amended and Restated Operating Agreement of The J. Thayer Company, L.L.C., A Delaware Limited
Liability Company
3.47 Restated Articles of Incorporation of Kentwood Office Furniture, Inc.
3.48 Amended and Restated By-Laws of Kentwood Office Furniture, Inc.
3.49 Amended and Restated Certificate of Incorporation of US Office Products, North Atlantic District,
Inc.
3.50 Amended and Restated By-Laws of US Office Products, North Atlantic District, Inc.
3.53 Restated Articles of Incorporation of Mail Boxes Etc.
3.54 Amended and Restated By-Laws of Mail Boxes Etc.
3.55 Restated Articles of Incorporation of Mail Boxes Etc. USA, Inc.
3.56 Amended and Restated By-Laws of Mail Boxes Etc. USA, Inc.
3.57 Amended and Restated Articles of Incorporation of McWhorter's, Inc.
3.58 Amended and Restated By-Laws of McWhorter's, Inc.
3.59 Certificate of Amendment and Restatement to the Certificate of Formation of Mile High Office Supply,
LLC
3.60 Amended and Restated Operating Agreement of Mile High Office Supply, L.L.C., A Delaware Limited
Liability Company
3.61 Articles of Amendment and Restatement to the Charter of US Office Products, Mid-South District, Inc.
3.62 Amended and Restated By-Laws of US Office Products, Mid-South District, Inc.
3.63 Amended and Restated Articles of Incorporation of Modern Food Systems, Inc.
3.64 Amended and Restated By-Laws of Modern Food Systems, Inc.
3.65 Amended and Restated Articles of Incorporation of Modern Vending, Inc.
3.66 Amended and Restated By-Laws of Modern Vending, Inc.
3.67 Amended and Restated Articles of Incorporation of Morris Office Machines, Inc., N/K/A US Office
Products, Mid-South District, Inc.
3.68 Amended and Restated By-Laws of US Office Products, Mid-South District, Inc.
3.69 Certificate of Amended Articles of Incorporation of National Office Supply, Inc., N/K/A US Office
Products, Penn-Ohio District, Inc.
3.70 Amended and Restated Regulations of US Office Products, Penn-Ohio District, Inc.
3.71 Amended and Restated Articles of Incorporation of New Mexico Office Solutions, Inc., N/K/A US Office
Products, New Mexico District, Inc.
3.72 Amended and Restated By-Laws of US Office Products, New Mexico District, Inc.
3.73 Certificate of Amended Articles of Incorporation of The Office Furniture Store, Inc.
3.74 Amended and Restated Regulations of The Office Furniture Store, Inc.
3.75 Amended and Restated Articles of Incorporation For Profit of US Office Products, Central Pennsylvania
District, Inc.
3.76 Amended and Restated By-Laws of US Office Products, Central Pennsylvania District, Inc.
3.77 Amended and Restated Articles of Incorporation of Pear Commercial Interiors, Inc.
3.78 Amended and Restated By-Laws of Pear Commercial Interiors, Inc.
3.79 Articles of Amendment and Restatement of Price-Modern, Inc.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------------------------
<S> <C>
3.80 Amended and Restated By-Laws of Price-Modern, Inc.
3.81 Articles of Amendment and Restatement to the Charter of US Office Products, South Central District,
Inc.
3.82 Amended and Restated By-Laws of US Office Products, South Central District, Inc.
3.83 Amended In Their Entirety Articles of Incorporation of Rainen Business Interiors, Inc.
3.84 Amended and Restated By-Laws of Rainen Business Interiors, Inc.
3.85 Restated Certificate of Incorporation of Sagot Office Interiors, Inc.
3.86 Amended and Restated By-Laws of Sagot Office Interiors, Inc.
3.87 Restated Articles of Incorporation of Sletten Vending Service, Inc.
3.88 Amended and Restated By-Laws of Sletten Vending Services, Inc.
3.89 Amended and Restated Certificate of Incorporation of Sturgis Acquisition Corp.
3.90 Amended and Restated By-Laws of Sturgis Acquisition Corp.
3.91 Amended and Restated Articles of Incorporation of Sweitzer's Offset Services, Inc.
3.92 Amended and Restated By-Laws of US Office Products, Sweitzer's Offset Services, Inc.
3.93 Amended and Restated Articles of Amendment of The Systems House, Inc.
3.94 Amended and Restated By-Laws of The Systems House, Inc.
3.95 Amended and Restated Certificate of Incorporation of US Office Furniture, Inc.
3.96 Amended and Restated By-Laws of US Office Furniture, Inc.
3.97 Amended and Restated Certificate of Incorporation of US Office Furniture Rentals, Inc.
3.98 Amended and Restated By-Laws of US Office Furniture Rentals, Inc.
3.99 Amended and Restated Certificate of Incorporation of US Office Products--Great Lakes, Inc.
3.100 Amended and Restated By-Laws of US Office Products, Great Lakes District, Inc.
3.101 Amended and Restated Certificate of Incorporation of USOP Merchandising Company
3.102 Amended and Restated By-Laws of USOP Merchandising Company
3.103 Certificate of Amendment and Restatement to the Certificate of Formation of US Office
Products-Midwest, LLC
3.104 Operating Agreement of US Office Products-Midwest, L.L.C. A Delaware Limited Liability Company
3.105 Amended and Restated Certificate of Incorporation of US Office Products of Northern Wisconsin, Inc.
3.106 Amended and Restated By-Laws of US Office Products, Wisconsin District, Inc.
3.107 Amended and Restated Articles of Incorporation of US Office Products Southern California
3.108 Amended and Restated By-Laws of US Office Products, Southern California District, Inc.
3.109 Amended and Restated Articles of Incorporation For Profit for Vend-Rite Service Corporation
3.110 Amended and Restated By-Laws of Vend-Rite Service Corporation
3.111 Restated Articles of Organization of Woburn Vending, Inc.
3.112 Amended and Restated By-Laws of Woburn Vending, Inc.
3.113 Amended and Restated Certificate of Incorporation of USOPN, Inc.
3.114 Amended and Restated By-Laws of USOPN, Inc.
4.1 Indenture dated as of June 10, 1998 between U.S. Office Products Company and State Street Bank and
Trust Company (3)
5.1 Opinion of Wilmer, Cutler & Pickering regarding legality of the Notes
8.1 Opinion of Wilmer, Cutler & Pickering regarding certain tax matters
10.1 Registration Rights Agreement dated as of June 10, 1998 between U.S. Office Products Company and
Morgan Stanley & Co., Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated, BT Alex Brown
Incorporated and Chase Securities, Inc. (3)
21.1 Subsidiaries of U.S. Office Products Company (1)
23.1 Consent of Wilmer, Cutler & Pickering (included in Exhibits 5.1 and 8.1)
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of BDO Seidman, LLP
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------------------------
<S> <C>
23.4 Consent of KPMG Peat Marwick LLP
23.5 Consent of Rubin, Koehmstedt & Nadler, PLC
23.6 Consent of Deloitte & Touche LLP
23.7 Consent of Hertz, Herson & Company LLP
23.8 Consent of Ernst & Young LLP
23.9 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on signature page of this Registration Statement)
25.1 Statement of Eligibility of Trustee on Form T-1*
27.1 Financial Data Schedule (1)
99.1 Form of Letter of Transmittal and Notice of Guaranteed Delivery*
</TABLE>
- ------------------------
(1) Incorporated by reference to USOP's Annual Report on Form 10-K filed with
the Commission on July 23, 1998.
(2) Incorporated by reference to USOP's Quarterly Report on Form 10-Q for the
quarter ended July 25, 1998 filed with the Commission on September 8, 1998.
(3) Incorporated by reference to USOP's Current Report on Form 8-K filed with
the Commission on June 25, 1998.
* Previously filed
<PAGE>
Exhibit 3.3
MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES
CORPORATION, SECURITIES AND LAND DEVELOPMENT BUREAU
Date Received (FOR BUREAU USE ONLY)
Name
Colleen Johnson
Address
1025 Thomas Jefferson St., NW, Ste. 600 East
city State Zip Code
Washington DC 20007 EFFECTIVE DATE:
Document will be returned to the name and address you enter above.
RESTATED ARTICLES OF INCORPORATION
For use by Domestic Profit Corporations
(Please read information and instructions on last page)
Pursuant to the provisions of Act 284. Public Acts of 1972, the undersigned
corporation executes the following Articles:
1. The present name of the corporation is:
ACTION WHOLESALE SERVICE, INC.
2. The identification number assigned by the Bureau is: 192194
3. All former names of the corporation are:
None
4. The date of filing the original Articles of incorporation was:
March 18, 1971
The following Restated Articles of Incorporation supersede the
Articles of Incorporation as amended and shall be the Articles of
Incorporation for the corporation:
ARTICLE I
The name of the corporation is: ACTION WHOLESALE SERVICE, INC.
ARTICLE II
The purpose or purposes for which the corporation is formed are:
To engage in any activity within the purposes for which corporations may be
formed under the Business Corporation Act of Michigan.
<PAGE>
ARTICLE III
The total authorized shares:
Common shares 1, 000 shares, without par value Preferred shares
A statement of all or any of the relative rights, preferences and limitations
of the shares of each class is as follows:
None
ARTICLE IV
1. The address of the current registered office is:
30600 Telegraph Road Bingham Farms Michigan 48025
(Street Address) (City) (ZIP Code)
2. The mailing address of the current registered office if different than
above:
(Street Address or P.O. Box) (City) , Michigan (ZIP Code)
3. The name of the current resident agent is: The Corporation Company
ARTICLE VI (Optional. Delete if not applicable.)
Any action required or permitted by the Act to be taken at an annual or
special meeting of shareholders may be taken without a meeting, without prior
notice, and without a vote, if consents in writing, setting forth the action
so taken, are signed by the holders of outstanding shares having not less
than the minimum number of votes that would be necessary to authorize or take
the action at a meeting at which all shares entitled to vote on the action
were present and voted. The written consents shall bear the date of signature
of each shareholder who signs the consent. No written consents shall be
effective to take the corporate action referred to unless, within 60 days
after the record date for determining shareholders entitled to express
consent to or to dissent from a proposal without a meeting, written consents
dated not more than 10 days before the record date and signed by a sufficient
number of shareholders to take the action are delivered to the corporation.
Delivery shall be to the corporation's registered office, its principal place
of business, or an officer or agent of the corporation having custody of the
minutes of the proceedings of its shareholders. Delivery made to a
corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to shareholders who would have
been entitled to notice of the shareholder meeting if the action had been
taken at a meeting and who have not consented in writing.
<PAGE>
ARTICLE V111 (Additional provisions, if any, may be inserted here; attach
additional pages if needed.)
5. COMPLETE SECTION (a) IF THE RESTATED ARTICLES WERE ADOPTED BY THE UNANIMOUS
CONSENT OF THE INCORPORATOR(S) BEFORE THE FIRST MEETING OF THE BOARD OF
DIRECTORS; OTHERWISE, COMPLETE SECTION (b). DO NOT COMPLETE BOTH.
a. These Restated Articles of Incorporation were duly adopted on the -day
of , 19 , in accordance with the provisions of Section 642 of the
Act by the unanimous consent of the incorporator(s) before the
first meeting of the Board of Directors.
Signed this day of , 19
(Signatures of Incorporators; Type or Print Name Under Each Signature)
b. /x/ These Restated Articles of Incorporation were duly adopted on the 25th
day of September, 1998 in accordance with the provisions of Section 642
of the Act and: (check one of the following)
/ / were duly adopted by the Board of Directors without a vote of
the shareholders. These Restated Articles of Incorporation
only restate and integrate and do not further amend the
provisions of the Articles of Incorporation as heretofore
amended and there is no material discrepancy between those
provisions and the provisions of these Restated Articles.
/ / were duly adopted by the shareholders. The necessary number of
shares as required by statute were voted in favor of these
Restated Articles.
/ / were duly adopted by the written consent of the shareholders
having not less than the minimum number of votes required by
statute in accordance with Section 407(l) of the Act. Written
notice to shareholders who have not consented in writing has
been given. (Note: Written consent by less than all of the
shareholders is permitted only if such provision appears in
the Articles of Incorporation.)
/x/ were duly adopted by the written consent of all the
shareholders entitled to vote in accordance with section
407(2) of the Act.
Signed this 25th day of September, 1998
/s/ Mark D. Director
-------------------------------------------------------------------------
(Signature of. President, Vice-President, Chairperson or Vice-Chairperson)
Mark D. Director Vice-President
(Type or Print Name) (Type or Print Title)
<PAGE>
Name of person or organization Preparer's name and business
remitting fees: telephone number:
US Office Products Company Colleen Johnson
(202 )339-6708
INFORMATION AND INSTRUCTIONS
1. The articles of incorporation cannot be restated until this form, or a
comparable document, is submitted.
2. Submit one original of this document. Upon filing, the document will be
added to the records of the Corporation, Securities and Land Development
Bureau. The original will be returned to the address appearing in the box
on the front as evidence of filing.
Since this document will be maintained on optical disk media, it is
important that the filing be legible. Documents with poor black and white
contrast, or otherwise illegible, will be rejected.
3. This document is to be used pursuant to sections 641 through 643 of the Act
for the purpose of restating the articles of incorporation of a domestic
profit corporation. Restated articles of incorporation are an integration
into a single instrument of the current provisions of the corporation's
articles of incorporation, along with any desired amendments to those
articles.
4. Restated articles of incorporation which do not amend the articles of
incorporation may be adopted by the board of directors without a vote of
the shareholders. Restated articles of incorporation which amend the
articles of incorporation require adoption by the shareholders. Restated
articles of incorporation submitted before the first meeting of the board
of directors require adoption by all of the incorporators.
5. Item 2 - Enter the identification number previously assigned by the Bureau.
If this number is unknown, leave it blank.
6. The duration of the corporation should be stated in the restated articles
of incorporation only if it is not perpetual.
7. This document is effective on the date endorsed "filed" by the Bureau. A
later effective date, no more than 90 days after the date of delivery, may
be stated as an additional article.
8. If the restated articles are adopted before the first meeting of the board
of directors, item 5(a) must be completed and signed in ink by a majority
of the incorporators. Other restated articles must be signed by the
president, vice-president, chairperson or vice-chairperson of the
corporation.
9. FEES: Make remittance payable to the State of Michigan. Include corporation
name and identification number on check or money order.
<TABLE>
<S> <C>
NONREFUNDABLE FEE .......................................................................................$10.00
TOTAL MINIMUM FEE .......................................................................................$10.00
ADDITIONAL FEES DUE FOR INCREASED AUTHORIZED SHARES ARE:
each additional 20,000 authorized shares or portion thereof .............................................$30.00
maximum fee per filing for first 10,000 authorized shares
$5,000.00
each additional 20,000 authorized shares or portion thereof in excess of 10,000,000 shared ........ $30.00
maximum fee per filing for authorized shares in excess of 10,000,000 shares ...................$200,000.00
</TABLE>
<TABLE>
<S> <C>
10. Mail form and fee to: The office is located at:
Michigan Department of Consumer and Industry Services 6546 Mercantile Way
Corporation, Securities and Land Development Bureau Lansing, MI 48910
Corporation Division (517) 334-6302
P.O. Box 30054
Lansing, MI 48909-7554
</TABLE>
<PAGE>
Exhibit 3.4
ACTION WHOLESALE SERVICE, INC.
* * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in Bingham Farms, Michigan.
Section 2. The corporation may also have offices at such other places
both within and without the State of Michigan as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in Grand Rapids, State of Michigan, at such place as may be fixed
from time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
<PAGE>
Section 3. Written notice of the time, place and purposes of a meeting
of shareholders shall be given not less than ten nor more than sixty days before
the date of the meeting, either personally or by mail, to each shareholder of
record entitled to vote at the meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Michigan as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of shareholders may be called at any time,
for any purpose or purposes, by the board of directors or by such other persons
as may be authorized by law.
Section 3. Written notice of the time, place and purposes of a special
meeting of shareholders shall be given not less than ten nor more than sixty
days before the date of the meeting, either personally or by mail, to each
shareholder of record entitled to vote at the meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the
<PAGE>
shareholders for the transaction of business except as otherwise provided by
statute or by the articles of incorporation. The shareholders present in person
or by proxy at such meeting may continue to do business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum. Whether or not a quorum is present, the meeting may be adjourned by a
vote of the shares present. When the holders of a class or series of shares, are
entitled to vote separately on an item of business, this section applies in
determining the presence of a quorum of such class or series for transaction of
the item of business.
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Section 4. Any action required or permitted to be taken at an annual or
special meeting of shareholders may be taken without a meeting, without prior
notice and without a vote, if all the shareholders entitled to vote thereon
consent thereto in writing.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Directors need not be
residents of the State of Michigan nor shareholders of the corporation. The
first board of directors shall hold office until the
<PAGE>
first annual meeting of shareholders. The directors, other than the first board
of directors, shall be elected at the annual meeting of the shareholders, and
shall hold office for the term for which he is elected and until his successor
is elected and qualified.
Section 2. Any vacancy occurring in the board of directors may be filled
by the affirmative vote of a majority of the remaining directors though less
than a quorum of the board of directors. A directorship to be filled because of
an increase in the number of directors or to fill a vacancy may be filled by the
board for a term of office continuing only until the next election of directors
by the shareholders.
Section 3. The business affairs of the corporation shall be managed by
its board except as otherwise provided by statute or in the articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the corporation, outside
of the State of Michigan, at such place or places as they may from time to time
determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors in office, and irrespective of any personal interest of any of
them, may establish reasonable compensation of directors for services to the
corporation as directors or officers.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
<PAGE>
Section 1. Regular or special meetings of the board of directors may be
held either within or without the State of Michigan.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 2 days' notice to each director, either personally or by mail
or by telegram; special meetings shall be called by the president or secretary
in like manner and on like notice on the written request of two directors.
Section 5. Attendance of a director at a meeting constitutes a waiver of
notice of the meeting, except where a director attends a meeting for the express
purpose of objecting 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, a regular or special meeting need be specified in the notice or
waiver of notice of the meeting.
Section 6. A majority of the members of the board then in office
constitutes a quorum for transaction of business, unless the articles of
incorporation provide for a larger or smaller number. The vote of the majority
of members present at a meeting at which a quorum is present constitutes
<PAGE>
the action of the board unless the vote of a larger number is required by
statute, the articles or these by-laws. If a quorum shall not be present at any
meeting of directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 7. Unless otherwise provided by the articles of incorporation
action required or permitted to be taken pursuant to authorization voted at a
meeting of the board, may be taken without a meeting if, before or after the
action, all members of the board consent thereto in writing. The written
consents shall be filed with the minutes of the proceedings of the board. The
consent has the same effect as a vote of the board for all purposes.
ARTICLE VII
COMMITTEES
Section 1. Unless otherwise provided in the articles of incorporation,
the board may designate one or more committees, each committee to consist of one
or more of the directors of the corporation. The board may designate one or more
directors as alternate members of a committee, who may replace an absent or
disqualified member at a meeting of the committee. In the absence or
disqualification of a member of a committee, the members thereof present at a
meeting and not disqualified from voting, whether or not they constitute a
quorum, may unanimously appoint another member of the board to act at the
meeting in place of such an absent or disqualified member. A committee, and each
member thereof, shall serve at the pleasure of the board. A committee, to the
extent provided in the resolution of the board or in the by-laws, may exercise
all
<PAGE>
powers and authority of the board in management of the business and affairs
of the corporation subject to any limitations by statute or in the articles of
incorporation.
<PAGE>
ARTICLE VIII
NOTICES
Section 1. When a notice or communication is required or permitted by
this act to be given by mail, it shall be mailed, except as otherwise provided
in this act, to the person to whom it is directed at the address designated by
him for that purpose or, if none is designated, at his last known address. The
notice or communication is given when deposited, with postage thereon prepaid,
in a post office or official depository under the exclusive care and custody of
the United States postal service. The mailing shall be registered, certified or
other first class mail except where otherwise provided by statute.
Section 2. When, under statutory requirements or the articles of
incorporation or these by-laws or by the terms of an agreement or instrument, a
corporation or the board or any committee thereof may take action after notice
to any person or after lapse of a prescribed period of time, the action may be
taken without notice and without lapse of the period of time, if at any time
before or after the action is completed the person entitled to notice or to
participate in the action to be taken or, in case of a shareholder, by his
attorney-in-fact, submits a signed waiver of such requirements.
ARTICLE IX
OFFICERS
<PAGE>
Section 1. The officers of the corporation shall be appointed by the
board of directors and shall be a chairman of the board, a president, one or
more vice-presidents, secretary, treasurer and such other officers as may be
determined by the board.
Section 2. The board of directors at its first meeting after each annual
meeting of shareholders shall choose a president, one or more vice-presidents,
secretary, and treasurer, none of whom need be a member of the board.
Section 3. The board of directors may appoint such other officers,
assistant officers, employees and agents as it deems necessary and prescribe
their powers and duties.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. An officer elected or appointed shall hold office for the
term for which he is elected or appointed and until his successor is elected or
appointed and qualified, or until his resignation or removal. An officer elected
or appointed by the board may be removed by the board with or without cause.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
<PAGE>
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by
<PAGE>
his signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
<PAGE>
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates signed by the chairman of the board, vice-chairman of the board,
president or a vice-president and by the treasurer, assistant treasurer,
secretary or assistant secretary of the corporation, and may be sealed with the
seal of the corporation or a facsimile thereof. A certificate representing
shares shall state upon its face that the corporation is formed under the laws
of this state, the name of the person to whom issued, the number and class of
shares, and the designation of the series, if any, which the certificate
represents, the par value of each share represented by the certificate, or a
statement that the shares are without par value and shall set forth on its face
or back or state that the corporation will furnish to a shareholder upon request
and without charge a full statement of the designation, relative rights,
preferences and limitations of the shares of each class authorized to be issued,
and if the corporation is authorized to issue any class of shares in series, the
designation, relative rights, preferences and limitations of each series so far
as the same have been prescribed and the authority
<PAGE>
of the board to designate and prescribe the relative rights, preferences and
limitations of other series.
Section 2. The signatures of the officers may be facsimiles if the
certificate is countersigned by a transfer agent or registered by a registrar
other than the corporation itself or its employee. In case any officer who has
signed or whose facsimile signature has been placed upon a certificate ceases to
be such officer before the certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed, and the board may require the owner of the lost
or destroyed certificate, or his legal representative, to give the corporation a
bond sufficient to indemnify the corporation against any claim that may be made
against it on account of the alleged lost or destroyed certificate or the
issuance of such a new certificate.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession,
<PAGE>
assignment or authority to transfer, a new certificate shall be issued to the
person entitled thereto, and the old certificate cancelled and the transaction
recorded upon the books of the corporation.
FIXING OF RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at a meeting of shareholders or an adjournment thereof, or
to express consent or to dissent from a proposal without a meeting, or for the
purpose of determining shareholders entitled to receive payment of a dividend or
allotment of a right, or for the purpose of any other action, the board of
directors may fix, in advance, a date as the record date for any such
determination of shareholders. The date shall not be more than sixty nor less
than ten days before the date of the meeting, not more than sixty days before
any other action. If a record date is not fixed, the record date for
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders shall be the close of business on the day next preceding the day on
which notice is given, or, if no notice is given, the day next preceding the day
on which the meeting is held, and the record date for determining shareholders
for any purpose shall be the close of business on the day on which the
resolution of the board relating thereto is adopted. When a determination of
shareholders of record entitled to notice of or to vote at a meeting of
shareholders has been made, the determination applies to any adjournment of the
meeting, unless the board fixes a new record date for the adjourned meeting.
REGISTERED SHAREHOLDERS
Section 6. For the purpose of determining shareholders entitled to vote
or receive payment of a dividend or allotment of a right, the corporation shall
be authorized to accept the list of
<PAGE>
shareholders made and certified by the officer or agent having charge of the
stock transfer books as prima facie evidence as to who are such shareholders on
the designated record date.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the stock transfer
books for shares of a corporation shall make and certify a complete list of the
shareholders entitled to vote at a shareholders' meeting or any adjournment
thereof. The list shall be arranged alphabetically within each class and series,
with the address of, and the number of shares held by each shareholder, produced
at the time and place of the meeting, subject to inspection by any shareholder
during the whole time of the meeting and be prima facie evidence as to who are
the shareholders entitled to examine the list or to vote at the meeting. A
person who is a shareholder of record of a corporation, upon at least ten days'
written demand may examine for any proper purpose in person or by agent or
attorney, during usual business hours, its minutes of shareholders' meetings and
record of shareholders and make extracts therefrom, at the places where they are
kept.
ARTICLE XI
DIVIDENDS
Section 1. The board of directors may declare and pay dividends or make
other distributions in cash, bonds or property of the corporation, including the
shares or bonds of other corporations, on its outstanding shares, except when
currently the corporation is insolvent or would thereby be
<PAGE>
made insolvent, or when the declaration, payment or distribution would be
contrary to any statutory restriction or restriction contained in the articles
of incorporation.
Section 2. Before payment of any dividend, the board of directors may
create reserves from its earned surplus or capital surplus for any proper
purpose and may increase, decrease or abolish such reserve.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday of April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Michigan". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
<PAGE>
ARTICLE XII
AMENDMENTS
These by-laws may be amended or repealed or new by-laws may be adopted
by the shareholders or board of directors except as may be provided in the
articles of incorporation. The shareholders may prescribe in these by-laws that
any by-law made by them shall not be altered or repealed by the board of
directors. Amendment of the by-laws by the board requires a vote of not less
than a majority of the members of the board then in office.
<PAGE>
ARTICLE XIII
DIRECTORS' ANNUAL STATEMENT
Section 1. At least once in each year the board of directors shall cause
a financial report of the corporation for the preceding fiscal year to be made
and distributed to each shareholder thereof within four months after the end of
the fiscal year. The report shall include the corporation's statement of income,
its year-end balance sheet and, if prepared by the corporation, its statement of
source and application of funds and such other information as may be required by
statute.
FINANCIAL STATEMENT TO SHAREHOLDERS
Section 2. Upon written request of a shareholder, the corporation shall
mail to the shareholder its balance sheet as at the end of the preceding fiscal
year; its statement of income for such fiscal year; and, if prepared by the
corporation, its statement of source and application of funds for such fiscal
year.
<PAGE>
Exhibit 3.5
FEDERAL IDENTIFICATION
NO.04-3117869
Examiner The Commonwealth of Massachusetts
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
RESTATED ARTICLES OF ORGANIZATION
(General Laws, Chapter 15611, Section 74)
Name
Approved We, Kathleen M. Delaney, Vice President, and Mark D. Director,
Assistant Clerk.
of AFFORDABLE INTERIOR SYSTEMS, INC.
(Exact name of corporation)
located at 4 Bonazzoli Avenue, Hudson, MA 01749
(Street address of corporation Massachusetts)
do hereby certify that the following Restatement of the Articles of Organization
was duly adopted at a meeting held on September 25,19 98 bv a vote of the
directors/or:
100 shares of Common Stock Of 100 shares outstanding,
(type, class & series, if any)
shares of of shares outstanding, and
(type, class & series, if any)
shares of of shares outstanding,
(type, class & series, if any)
"being at least a majority of each type, class or series outstanding and
entitled to vote thereon:
ARTICLE I
The name of the corporation is:
Affordable Interior Systems, Inc.
ARTICLE 11
The purpose of the corporation is to engage in the following business
activities:
A. To act as liquidators, brokers, remanufacturers, sellers and resellers of
new and used furniture of all types and descriptions.
B. To carry on any business or other activity which may be lawfully carried on
by a Corporation organized under the laws of the Business Corporation Law
of the Commonwealth of Massachusetts, whether or not related to those
referred to in the preceding paragraph.
*Delete the inapplicable words. "Delete the inapplicable clause.
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on separate .8 112 x 11 sheets
of paper with a left margin of at least I inch. Additions to more than one
article may be made on a P.C. single sheet so long as each article
requiring each addition is clearly indicated
<PAGE>
ARTICLE III
State the total number of shares and par value, if any, of each class of stock
which the corporation is authorized to issue:
WITHOUT PAR VALUE WITH PAR VALUE
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PARVALUE
Common: 1,000 Common:
Preferred: 0 Preferred:
ARTICLE IV
If more than one class of stock is authorized, state a distinguishing
designation for each class. Prior to the issuance of any shares of a class, if
shares of another class are outstanding, the corporation must provide a
description of the preferences, voting powers, qualifications, and special or
relative rights or privileges of that class and of each other class of which
shares are outstanding and of each series then established within any class.
None
ARTICLE V
The restrictions, if any, imposed by the Articles of Organization upon the
transfer of shares of stock of any class are:
None
ARTICLE VI
**Other lawful provisions, if any, for the conduct and regulation of the
business and affairs of the corporation, for its voluntary dissolution, or for
limiting, defining, or regulating the powers of the corporation, or of its
directors or stockholders, or of any class of stockholders:
The existence of the Corporation shall be perpetual.
**If there are no provisions state "None".
Note: The preceding Ax (6) articles are considered to be permanent and may ONLY
be changed byfiling appropriate Articles of Amendment
<PAGE>
ARTICLE VII
The effective date of the restated Articles of Organization of the corporation
shall be the date approved and filed by the Secretary of the Commonwealth. If a
later effective date is desired, specify such date which shall not be more than
thirty days after the date of filing. October 1, 1998
ARTICLE VHI
The information contained in ARTICLE VIII is not a permanent part of the
Articles of Organization.
a. The street address (post office boxes are not acceptable) of the principal
office of the corporation in Massachusetts is: 4 Bonazzoli Avenue, Hudson,
MA 01749
b. The name, residential address and post office address of each director and
officer of the corporation is as follows:
<TABLE>
<CAPTION>
NAME RESIDENTIAL ADDRESS POST OFFICE ADDRESS
<S> <C> <C> <C>
President: Arthur Maxwell 96 Peakham Road 4 Bonazzoli Avenue
Sudbury, MA 01776 Hudson, MA 01749
Treasurer: Arthur Maxwell 96 Peakham Road 4 Bonazzoli Avenue
Sudbury, MA 01776 Hudson, MA 01749
Clerk: Cara Flynn 96 Peakham Road 4 Bonazzoli Avenue
Sudbury, MA 01776 Hudson, MA 01749
Directors: See 1 in Addendum
</TABLE>
c. The fiscal year (i.e., tax year) of the corporation shall end on the last
day of the month of April
d. The name and business address of the resident agent, if any, of the
corporation is: C T Corporation System
2 Oliver Street, Boston, MA 02109
**We further certify that the foregoing Restated Articles of Organization affect
no amendments to the Articles of Organization of the corporation as heretofore
amended, except amendments to the following articles. Briefly describe
amendments below:
SIGNED UNDER THE PENALTIES OF PERJURY, this 25th day of September, 1998
/s/ Kathleen M. Delaney
By: Kathleen M. Delaney, Vice President
/s/ Mark D. Director
By: Mark D. Director, Assistant Clerk
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
RESTATED ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B, Section 74)
I hereby approve the within Restated Articles of Organization and, the filing
fee in the amount of $ having been paid, said articles are deemed to have been
filed with me this - day of
, 19
Effective date:
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
C T CORPORATION SYSTEM
2 Oliver Street
Boston, Massachusetts 02109
Telephone: (617) 482-4420
<PAGE>
Addendum
Name: Mark D. Director
Residential address: 10101 Greyhorse Court, Potomac, MD 20854
Post Office address: 1025 Thomas Jefferson St., NW Ste. 600 East,
Washington, DC 20007
Name: Donald H. Platt
Residential address: 15606 Blackberry Drive, North Potomac, MD 20878
Post Office address: 1025 Thomas Jefferson St., NW, Ste. 600 East,
Washington, DC 20007
Name: Arthur Maxwell
Residential address: 96 Peakham Road, Sudbury, MA 01776
Post Office address: 4 Bonazzoli Avenue, Hudson, MA 01749
<PAGE>
Exhibit 3.6
AFFORDABLE INTERIOR SYSTEMS, INC.
* * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The principal office shall be located in Hudson,
Massachusetts.
Section 2. The corporation may also have offices at such other places
both within and without the Commonwealth of Massachusetts as the board of
directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
ANNUAL MEETINGS OF STOCKHOLDERS
Section 1. All meetings of stockholders for the election of directors
shall be held in Hudson, State of Massachusetts, at such place as may be fixed
from time to time by the board of directors.
<PAGE>
Section 2. Annual meetings of stockholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be given to each stockholder entitled
to vote thereat not less than seven days before the date of the meeting.
The notice shall also set forth the purpose or purposes for which the
meeting is called.
ARTICLE III
SPECIAL MEETINGS OF STOCKHOLDERS
Section 1. Special meetings of stockholders for any purpose other than
the election of directors may be held at such time and place within or without
the Commonwealth of Massachusetts as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Special meetings of stockholders may be called at any time,
for any purpose or purposes, by the board of directors or by such other persons
as may be authorized by law.
Section 3. Written or printed notice of a special meeting of
stockholders, stating the time, place and purpose or purposes thereof, shall be
given to each stockholder entitled to vote thereat, at least seven days before
the date fixed for the meeting.
ARTICLE IV
<PAGE>
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the articles of
organization. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the
stockholders unless the vote of a greater number of shares of stock is required
by law or the articles of organization.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
stockholders. A stockholder may vote either in person or by proxy executed in
writing by the stockholder or by his duly authorized attorney-in-fact.
Section 4. Any action required to be taken at a meeting of the
stockholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the stockholders entitled
to vote with respect to the subject matter thereof.
<PAGE>
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Directors need not be
residents of the Commonwealth of Massachusetts nor stockholders of the
corporation. The directors, other than the first board of directors, shall be
elected at the annual meeting of the stockholders, and each director elected
shall serve until the next succeeding annual meeting and until his successor
shall have been elected and qualified. The first board of directors shall hold
office until the first annual meeting of stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the number of directors may be filled by a majority of the directors
then in office, though less than a quorum, and the directors so chosen shall
hold office until the next annual election and until their successors are duly
elected and shall qualify.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
organization or by these by-laws directed or required to be exercised or done by
the stockholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the
Commonwealth of Massachusetts, at such place or places as they may from time to
time determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to
<PAGE>
establish reasonable compensation of all directors for services to the
corporation as directors, officers or otherwise.
<PAGE>
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the Commonwealth of Massachusetts.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 2 days' notice to each director, either personally or by mail
or by telegram; special meetings shall be called by the president or secretary
in like manner and on like notice on the written request of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
<PAGE>
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater number is required by law or by the
articles of organization. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
unless the act of a greater number is required by statute or by the articles of
organization. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors entitled to
vote with respect to the subject matter thereof.
Section 8. Unless the articles of organization or the by-laws otherwise
provide, the members of the board of any corporation or any committee designated
thereby may participate in a meeting of such board or committee by means of a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a meeting.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the by-laws or otherwise, may designate two
or more directors to constitute an executive committee, which committee, to the
extent provided in such resolution, shall have and exercise all of the authority
of the board of directors in the management of the corporation, except
<PAGE>
as otherwise required by law. Vacancies in the membership of the committee shall
be filled by the board of directors at a regular or special meeting of the board
of directors. The executive committee shall keep regular minutes of its
proceedings and report the same to the board when required.
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of organization or of these by-laws, notice is required to be given to
any director or stockholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
organization or these by-laws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
ARTICLE IX
OFFICERS
<PAGE>
Section 1. The initial officers shall be elected by the incorporators
and are set forth in the articles of organization. The officers of the
corporation shall be a president, a treasurer and a clerk. The president shall
be chosen by the board of directors. The treasurer and the clerk shall be
elected by the shareholders. The board of directors may choose one or more
vice-presidents and one or more assistant treasurers and assistant clerks. None
of the officers need be members of the board nor stockholders of the
corporation.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose the officers for the ensuing year.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active
<PAGE>
management of the business of the corporation and shall see that all orders and
resolutions of the board of directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE CLERK AND ASSISTANT CLERKS
Section 9. The clerk shall be a resident of the Commonwealth of
Massachusetts, provided however, he need not be such resident, if, and as long
as, the corporation shall appoint and maintain a resident agent for service of
process within the Commonwealth. The clerk shall attend all meetings of the
board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to
<PAGE>
be given, notice of all meetings of the stockholders and special meetings of the
board of directors, and shall perform such other duties as may be prescribed by
the board of directors or president, under whose supervision he shall be. He
shall have custody of the record books and of the corporate seal of the
corporation and he, or an assistant clerk, shall have authority to affix the
seal to any instrument requiring it and when so affixed, it may be attested by
his signature or by the signature of such assistant clerk. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature. The office of the
clerk shall be deemed to be the office of the secretary of the corporation
whenever such office is required for any purpose; and, whenever the signature of
the secretary of the corporation is required on any instrument, or document, by
the laws of the United States, or of any other state, or in any other manner
whatsoever, the clerk shall have authority to affix his signature in such
capacity.
Section 10. The assistant clerk, or if there be more than one, the
assistant clerks in the order determined by the board of directors, shall, in
the absence or disability of the clerk, perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
<PAGE>
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates or shall be uncertificated shares. Each certificate shall be signed
by the chairman of the board of directors, the president or a vice-president and
the treasurer or an assistant treasurer of the corporation, and may be sealed
with the seal of the corporation or a facsimile thereof. When the corporation is
authorized to issue shares of more than one class there shall be set forth upon
the face or back of the certificate,
<PAGE>
or the certificate shall have a statement that the corporation will furnish to
any stockholder upon request and without charge, a full statement of the
designations, preferences, limitations, and relative rights of the shares of
each class authorized to be issued and, if the corporation is authorized to
issue any preferred or special class in series, the variations in the relative
rights and preferences between the shares of each such series so far as the same
have been fixed and determined and the authority of the board of directors to
fix and determine the relative rights and preferences of subsequent series.
Any shares subject to any restriction on transfer shall have the
restriction noted conspicuously on the certificate and shall also set forth on
the face or back of the certificate either the full text of the restriction, or
a statement of the existence of such restriction and a statement that the
corporation will furnish a copy thereof to the holder of such certificate upon
written request and without charge.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 19, 25-28 or 41A or a statement that the
corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 2. The signatures of the officers upon a certificate may be
facsimiles if the certificate is countersigned by a transfer agent, or
registered by a registrar, other than the corporation itself or an employee of
the corporation. In case any officer who has signed or whose facsimile signature
has been placed upon such certificate shall have ceased to be such officer
before such certificate is
<PAGE>
issued, it may be issued by the corporation with the same effect as if he were
such officer at the date of its issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
FIXING OF RECORD DATE
<PAGE>
Section 5. The board of directors may fix in advance a time which shall
be not more than sixty days before the date of any meeting of stockholders or
the date for the payment of any dividend or the making of any distribution to
stockholders or the last day on which the consent or dissent of stockholders may
be effectively expressed for any purpose, as the record date for determining the
stockholders having the right to notice of and to vote at such meeting and any
adjournment thereof or the right to receive such dividend or distribution or the
right to give such consent or dissent, and in such case only stockholders of
record on such record date shall have such right, notwithstanding any transfer
of stock on the books of the corporation after the record date; or without
fixing such record date the board of directors may for any of such purposes
close the transfer books for all or any part of such period.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Massachusetts.
ARTICLE XI
GENERAL PROVISIONS
<PAGE>
DIVIDENDS
Section 1. Subject to the provisions of the articles of organization
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of the capital stock, subject to any provisions of the
articles of organization.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday of April.
<PAGE>
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Massachusetts". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
<PAGE>
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted (a) at any regular or special meeting of stockholders at
which a quorum is present or represented, by the affirmative vote of a majority
of the stock entitled to vote, provided notice of the proposed alteration,
amendment or repeal be contained in the notice of such meeting, or (b) by the
affirmative vote of a majority of the board of directors at any regular or
special meeting of the board, except with respect to any provision which by law,
the articles of organization or the by-laws requires action by the stockholders,
and provided further that any by-law adopted by the directors may be amended or
repealed by the stockholders.
<PAGE>
Exhibit 3.7
State of Missouri
Rebecca McDowell Cook, Secretary of State
P.O. Box 778, Jefferson City, Mo. 65102
Corporation Division
Amendment of Articles of Incorporation
(To be submitted in duplicate)
Pursuant to the provisions of The General and Business Corporation Law of
Missouri, the undersigned Corporation certifies the following:
1. The present name of the Corporation is American Loose Leaf/Business
Products, Inc.
The name under which it was originally organized was American Loose Leaf
Binder Co.
2. An amendment to the Corporation's Articles of Incorporation was adopted by
the shareholders on September 25, 1998
3. The Articles of Incorporation are amended as set forth below:
See attached "Amended in Their Entirety Articles of Incorporation"
Corp.#44 (12-94) (If more than one article is to be amended or more space is
needed attach fly sheet.)
<PAGE>
4. Of the 100 shares outstanding, 100 of such shares were entitled to vote on
such amendment. The number of outstanding shares of any class entitled to
vote thereon as a class were as follows:
Class Number of Outstanding Shares
Common Stock 100
5. The number of shares voted for and against the amendment was as follows:
Class No. Voted For No. Voted Against
Common Stock 100
6. If the amendment changed the number or par value of authorized shares
having a par value, the amount in dollars of authorized shares having a par
value as changed is: 10,000
If the amendment changed the number of authorized shares without par value,
the authorized number of shares without par value as changed and the
consideration proposed to be received for such increased authorized shares
without par value as are to be presently issued are:
7. If the amendment provides for an exchange, reclassification, or
cancellation of issued shares, or a reduction of the number of authorized
shares of any class below the number of issued shares of that class, the
following is a statement of the manner in which such reduction shall be
effected:
Upon the effectiveness of this amendment, the 100 shares of Common Stock,
par value $100 per share of the corporation (the "Old Stock"), that are
issued and outstanding shall be converted into 1,000 issued shares of
Common Stock, no par value per share, of the corporation (the "New Stock"),
on the basis of ten shares of New Stock for each share of Old Stock. Upon
the effectiveness of this amendment, holders of issued shares of the Old
Stock, upon surrendering certificates evidencing the issued shares of Old
Stock for cancellation, shall be entitled to receive certificates for
shares of the New Stock on the basis set forth above.
<PAGE>
IN WITNESS WHEREOF, the undersigned, Kathleen M. Delaney, its Vice President
has executed this instrument and Mark D. Director, its Assistant Secretary has
affixed its corporate seal hereto and attested said seal on the 25th day of
September, 1998.
Place
CORPORATE SEAL
Here
(If no seal, state "None.
American Loose Leaf/Business Products, Inc.
-------------------------------------------
Name of Corporation
ATTEST:
By: /s/ Mark D. Director By: /s/ Kathleen M. Delaney
---------------------------- ---------------------------
Assistant Secretary Vice President
I, Scarlett Bates a Notary Public, do hereby certify that on this 21st day of
September, 1998, personally appeared before me Kathleen M. Delaney and Mark D.
Director who, being by me first duly sworn, declared that they are the Vice
President and Assistant Secretary of American Loose Leaf /Business Products,
Inc., that they signed the foregoing documents as Vice President and Assistant
Secretary of the corporation, and that the statements therein contained are
true.
(Notarial Seal)
/s/ Scarlett Bates
-----------------------------------
Notary Public
My Commission Expires April 30, 1999
<PAGE>
AMENDED IN THEIR ENTIRETY
ARTICLES OF INCORPORATION
OF
AMERICAN LOOSE LEAF/BUSINESS PRODUCTS, INC.
American Loose Leaf/Business Products, Inc., a corporation organized and
existing under the General and Business Corporation Law of Missouri, hereby
amends in its entirety its Articles of Incorporation in the following manner:
ARTICLE 1: The name of the corporation is US Office Products, Midwest District,
Inc.
ARTICLE 2: The name of the registered agent in this state is The Corporation
Company and address, including the street and number, if any of the
corporation's registered office in this state is 120 South Central,
Clayton, MO 63105.
ARTICLE 3: The aggregate number, class and par value, of shares which the
corporation shall have the authority to issue shall be 1,000 shares
of Common Stock with no par value.
ARTICLE 4: The number of directors to constitute the board of directors shall be
three.
ARTICLE 5: The duration of the corporation is perpetual.
ARTICLE 6: The corporation is formed for the following purposes: to do any and
all things as are necessary, convenient, or proper for, or incidental
to, the attainment of the purposes, objects and purposes of the
corporation, insofar as such acts are permitted to be done by a
corporation organized under the General Corporation Laws of the State
of Missouri, and in general to carry on any other business in
connection therewith otherwise not being forbidden by the laws of the
State of Missouri and with all the powers conferred upon corporations
by the laws of the State of Missouri.
ARTICLE 7: The original incorporator's name and address are as follows:
Paul Mendelson
3 Spoede Woods Drive
Creve Coeur, MO 63141
Harry Mendelson
14001 Augusta Drive
Chesterfield, MO 63017
David Mendelson
7805 Gannon Avenue
Univeristy City, MO 63130
Albert Mendelson
7620 Gannon Avenue
University City, MO 63130
<PAGE>
Exhibit 3.8
US OFFICE PRODUCTS, MIDWEST DISTRICT, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in St. Louis,
Missouri.
Section 2. The corporation may also have offices at such other places
both within and without the State of Missouri as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in St. Louis, State of Missouri, at such place as may be fixed
from time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect by a plurality vote a
<PAGE>
board of directors, and transact such other business as may properly be brought
before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be delivered not less than ten nor more
than seventy days before the date of the meeting, either personally or by mail,
by or at the direction of the president, or the secretary, or the officer or
persons calling the meeting, to each shareholder of record entitled to vote at
such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Missouri as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the board of directors or by such other person
or persons as may be provided in the articles of incorporation.
Section 3. Written or printed notice of a special meeting stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than ten nor more than seventy
days before the date of the meeting, either personally or by mail, by or at the
direction of the president, or the secretary, or the officer
<PAGE>
or persons calling the meeting, to each shareholder of record entitled to vote
at such meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2. If a quorum is present, the affirmative vote of a majority
of the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
<PAGE>
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Unless otherwise provided by the articles of incorporation, each
shareholder in electing directors shall have the right to cast as many votes in
the aggregate as shall equal the number of votes held by him in the corporation
multiplied by the number of directors to be elected at the election, and each
shareholder may cast the whole number of votes, either in person or by proxy,
for one candidate, or distribute them among two or more candidates.
Section 4. Any action required to be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Directors need not be
residents of the State of Missouri nor shareholders of the corporation. The
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
<PAGE>
Section 2. Unless otherwise provided in the articles of incorporation
or these bylaws, any vacancy occurring in the board of directors and any newly
created directorship resulting from any increase in the number of directors to
constitute the board of directors may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole remaining director,
until the next election of directors by the shareholders.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these bylaws directed or required to be exercised or done by
the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Missouri, at such place or places as the directors may from time to time
determine.
Section 5. The board of directors, by the affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Missouri.
<PAGE>
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 10 days' notice to each director, either personally or by mail
or by facsimile telecommunication; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
Section 6. A majority of the full board of directors shall constitute a
quorum for the transaction of business unless a greater number is required by
statute or by the articles of incorporation. The act of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the board of directors, unless the act of a greater number is required by
statute or by the articles of incorporation. If a quorum shall not be
<PAGE>
present at any meeting of directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors, or of the executive committee or any other committee of the
directors, may be taken without a meeting, if a consent in writing, setting
forth the action so taken, shall be signed by all of the members of the board or
of the committee entitled to vote with respect to the subject matter thereof.
Section 8. Unless otherwise restricted by the articles of incorporation
or these bylaws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors or committee by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear each other, and participation in a meeting in this manner shall constitute
presence in person at the meeting.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the bylaws or otherwise, may designate two
or more directors to constitute an executive committee, which committee, to the
extent provided in such resolution, shall have and exercise all of the authority
of the board of directors in the
<PAGE>
management of the corporation, except as otherwise required by law. Vacancies in
the membership of the committee shall be filled by the board of directors at a
regular or special meeting of the board of directors. The executive committee
shall keep regular minutes of its proceedings and report the same to the board
when required.
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these bylaws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by facsimile telecommunication.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these bylaws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
<PAGE>
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
Section 2. The board of directors at its first meeting after each
annual meeting of shareholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member
of the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
<PAGE>
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
<PAGE>
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
<PAGE>
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and
<PAGE>
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates signed by the president or a vice-president and the secretary or an
assistant secretary or the treasurer or an assistant treasurer of the
corporation, and sealed with the seal of the corporation or a facsimile thereof.
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as
<PAGE>
it deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
CLOSING OF TRANSFER BOOKS
Section 5. The board of directors shall have power to close the
transfer books of the corporation for a period not exceeding seventy days
preceding the date of any meeting of shareholders or the date for payment of any
dividend or the date for the allotment of rights or the date when any change or
conversion or exchange of shares shall go into effect; provided, however, that
in lieu of closing the transfer books, the board of directors may fix in advance
a date, not exceeding seventy days preceding the date of any meeting of
shareholders, or the date for the payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
shares shall go into effect,
<PAGE>
as a record date for the determination of the shareholders entitled to notice
of, and to vote at the meeting, and any adjournment thereof, or entitled to
receive payment of the dividend, or entitled to any such allotment of rights, or
entitled to exercise the rights in respect of the change, conversion or exchange
of shares, and in such case, only the shareholders who are shareholders of
record on the date of closing the transfer books or on the record date so fixed
shall be entitled to notice of, and to vote at, the meeting, and any adjournment
thereof, or to receive payment of the dividend, or to receive the allotment of
rights, or to exercise the rights, as the case may be, notwithstanding any
transfer of any shares on the books of the corporation after the date of closing
of the transfer books or the record date fixed as aforesaid. If the board of
directors does not close the transfer books or set a record date for the
determination of the shareholders entitled to notice of, and to vote at, a
meeting of shareholders, only the shareholders who are shareholders of record at
the close of business on the twentieth day preceding the date of the meeting
shall be entitled to notice of, and to vote at, the meeting, and any adjournment
of the meeting; except that, if prior to the meeting, written waivers of notice
of the meeting are signed and delivered to the corporation by all of the
shareholders of record at the time the meeting is convened, only the
shareholders who are shareholders of record at the time the meeting is convened
shall be entitled to vote at the meeting, and any adjournment of the meeting.
<PAGE>
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Missouri.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the transfer books for
shares shall make, at least ten days before each meeting of shareholders, a
complete list of the shareholders entitled to vote at such meeting, arranged in
alphabetical order, with the address of each and the number of shares held by
each, which list, for a period of ten days prior to such meeting, shall be kept
on file at the registered office of the corporation and shall be subject to
inspection by any shareholder at any time during usual business hours. Such list
shall also be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any shareholder during the whole time of
the meeting. The original share ledger or transfer book, or a duplicate thereof,
shall be prima facie evidence as to who are the shareholders entitled to examine
such list or share ledger or transfer book or to vote at any meeting of the
shareholders.
<PAGE>
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of the capital stock, subject to any provisions of the
articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Missouri". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. If provided by the articles of incorporation, these bylaws
may be altered, amended, or repealed or new bylaws may be adopted by the
affirmative vote of a majority of the board of directors at any regular or
special meeting of the board.
<PAGE>
Exhibit 3.9
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
ANDREWS OFFICE SUPPLY & EQUIPMENT CO.
To: Department of Consumer and Regulatory Affairs
Corporations Division
614 H Street, NW
Washington, DC 20001
I, the undersigned natural person of the age of eighteen years of more,
authorized to act on behalf of the corporation described below, present the
following amended and restated articles of incorporation duly proposed and
adapted in accordance with all applicable provisions of Title 29, Chapter 3 of
the DC Code as amended:
FIRST: The present name of the corporation is ANDREWS OFFICE SUPPLY &
EQUIPMENT CO., and the date that the articles of incorporation were
filed originally is March 25, 1966.
SECOND: The period of the corporation's duration is perpetual.
THIRD: The restated articles of incorporation were adopted by the board of
directors with the vote of the shareholder.
FOURTH: The restated aggregate number of shares which the corporation is
authorized to issue is 1,000 shares of common stock, without par
value.
FIFTH: There are no preferences, restrictions, limitations or rights with
respect to the authorized shares.
SIXTH: The are no provisions for preemptive rights with respect to the
authorized shares.
SEVENTH: There are no restated provisions for the regulation of the internal
affairs of the corporation.
EIGHTH: The purpose for which the corporation is organized is to have and
exercise all powers conferred by the laws of the District of
Columbia upon corporations formed under the District of Columbia
Business Corporation Act.
ANDREWS OFFICE SUPPLY & EQUIPMENT CO.
By: /s/ Kathleen M. Delaney
----------------------------------------
Kathleen M. Delaney
Vice President
<PAGE>
Exhibit 3.10
ANDREWS OFFICE SUPPLY & EQUIPMENT COMPANY
AMENDED AND RESTATED
B Y - L A W S
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Washington,
District of Columbia.
Section 2. The corporation may also have offices at such other places
both within and without the District of Columbia as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Meetings of the shareholders shall be held in the
Washington, DC.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held on the last week of June at 10:00 a.m., at which they shall
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
Section 3. Special meetings of the shareholders may be called by the
president, the secretary, the board of directors, or by the holders of not less
than one-fifth of all the outstanding shares entitled to vote.
Section 4. Written or printed notice stating the place, day and hour of
the meeting, and, in case of a special meeting, the purpose or purposes for
which the meeting is called shall be
<PAGE>
delivered not less than ten nor more than fifty days before the meeting, either
personally or by mail, by or at the direction of the president, the secretary,
or the officer calling the meeting to each shareholder of record entitled to
vote at such meeting. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail addressed to the shareholder at his
address as it appears on the records of the corporation, with the postage
thereon pre-paid.
Section 5. Business transacted at any special meeting of shareholders
shall be confined to the purposes stated in the notice thereof.
Section 6. A majority of the outstanding shares having voting power,
represented in person or by proxy, shall constitute a quorum at meetings of the
shareholders except as otherwise provided by statute or by the articles of
incorporation. If a meeting cannot be organized because a quorum has not
attended, then those present may adjourn the meeting from time to time without
notice other than announcement at the meeting, until a quorum is present or
represented. At such adjourned meeting at which a quorum is present or
represented any business may be transacted that might have been transacted at
the meeting as originally called.
Section 7. When a quorum is present at any meeting, the vote of the
holders of a majority of the shares having voting power present in person or
represented by proxy shall decide any question brought before such meeting
except when the question is one upon which the express provision of the statutes
or of the articles of incorporation requires a different vote, then such express
provision shall govern and control the decision of such question. However, in
elections of directors, those receiving the greatest number of votes shall be
deemed elected though not receiving a majority.
<PAGE>
Section 8. Each outstanding share shall be entitled to one vote on each
matter submitted to a vote at a meeting of shareholders unless otherwise
provided in the articles of incorporation. A shareholder may vote either in
person or by proxy executed in writing by the shareholder or by his duly
authorized attorney in fact. No proxy shall be valid after eleven months from
the date of its execution, unless otherwise provided in the proxy.
Section 9. Any action required by the statutes to be taken at a
meeting of the shareholders, or any other action which may be taken at a
meeting of the shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof.
ARTICLE III
DIRECTORS
Section 1. The number of directors of the corporation shall be three.
The directors shall be elected at the annual meeting of the shareholders, except
as provided in Section 2 of this Article, and each director elected shall hold
office until his successor is elected and qualified. Directors need not be
shareholders.
Section 2. Any directorship to be filled by reason of an increase in
the number of directors may be filled by election at an annual meeting or at a
special meeting of the shareholders entitled to vote called for that purpose.
Any vacancy occurring in the board of directors for any cause other than by
reason of an increase in the number of directors may be filled by affirmative
vote of a majority of the remaining directors, though less than a quorum of
<PAGE>
the board of directors, unless the articles of incorporation otherwise provide.
A director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office.
Section 3. The business and affairs of the corporation shall be managed
by its 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 articles
of incorporation or these by-laws directed or required to be exercised and done
by the shareholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. Meetings of the board of directors, regular or special, may
be held within or without the District of Columbia.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting. Notice of such meeting shall not be
necessary to the newly elected directors in order legally to constitute the
meeting provided a quorum shall be present. In the event of the failure of the
shareholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the shareholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
<PAGE>
Section 7. Special meetings of the board of directors may be called by
the president or secretary on the written request of two directors. Written
notice of special meetings of the board of directors shall be given to each
director at least two days before the date of the meeting.
Section 8. A majority of the directors shall constitute a quorum for
the transaction of business and the act of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the board of
directors. If a quorum shall not be present at any meeting of the board of
directors, the directors present thereat may adjourn the meeting from time to
time without notice other than announcement at the meeting, until a quorum shall
be present.
Section 9. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors entitled to
vote with respect to the subject matter thereof.
EXECUTIVE COMMITTEE
Section 10. The board of directors, by resolution adopted by a majority
of the whole board, may designate two or more directors to constitute an
executive committee, which committee, to the extent provided in such resolution
shall have and may exercise all of the authority of the board of directors in
the management of the business and affairs of the corporation.
Section 11. The executive committee shall keep regular minutes of its
proceedings and report the same to the board when required.
COMPENSATION OF DIRECTORS
<PAGE>
Section 12. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of the executive committee may be allowed like compensation for attending
committee meetings.
<PAGE>
ARTICLE IV
NOTICES
Section 1. Notices to directors and shareholders shall be in writing
and delivered personally or by mail to the directors or shareholders at their
addresses appearing on the books of the corporation. Notice by mail shall be
deemed to be given at the time when same shall be mailed. Notice to directors
may also be given by telegram.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or of these by-laws, a waiver thereof in writing signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice.
Section 3. Attendance of a director at a meeting shall constitute a
waiver of notice of such meeting, except where a director attends a meeting for
the express purpose of objecting 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 board of
directors need be specified in the notice or waiver of notice of such meeting.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall consist of a
president, one or more vice presidents, a secretary and a treasurer, each of
whom shall be elected by the board of directors. Any two or more offices may be
held by the same person, except the offices of president and secretary.
<PAGE>
Section 2. The board of directors at its first meeting after each
annual meeting of shareholders shall choose a president, one or more vice
presidents, a secretary and a treasurer, none of whom need be a member of the
board.
Section 3. The board of directors may elect or appoint such other
officers, assistant officers and agents as it shall deem necessary who shall
hold their offices for such terms and shall have authority and perform such
duties as shall be determined from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer or agent elected or
appointed by the board of directors may be removed by the board of directors
whenever, in its judgment, the best interests of the corporation will be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Any vacancy occurring in any office of the
corporation by death, resignation, removal or otherwise shall be filled by the
board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
<PAGE>
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
<PAGE>
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers,
<PAGE>
money and other property of whatever kind in his possession or under his control
belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates signed by the president or a vice-president and the secretary or an
assistant secretary and sealed with the seal of the corporation. Such seal may
be a facsimile. No certificate shall be issued for any share until such share is
fully paid. Each certificate representing shares shall state that the
corporation is organized under the laws of the District of Columbia, the name of
the person to whom issued, the number and class of shares which such certificate
represents and the par value of each share represented by such certificate, or a
statement that the shares are without par value. If the corporation shall be
authorized to issue shares of more than one class, the designations,
preferences, limitations and relative rights of the shares of each class
authorized to be issued shall be stated in full or in the form of a summary
either upon the face or back of each certificate, or the certificate shall have
a statement that the corporation will furnish to any shareholder upon request
and without charge, a full or summary statement of the designations,
preferences, limitations, and relative rights of the shares of each class
authorized to be issued and, if the
<PAGE>
corporation is authorized to issue any preferred or special class in series, the
variations in the relative rights and preferences between the shares of each
such series so far as the same have been fixed and determined, and the authority
of the board of directors to fix and determine the relative rights and
preferences of subsequent series.
The limitations and the restrictions upon the transferability of any
certificate shall either be stated in full or in the form of a summary either
upon the face or back of each certificate or a statement, upon the face or back
of each certificate, shall be made that the corporation will furnish to any
shareholder upon request and without charge such full or summary statement.
Section 2. Where certificates are countersigned by a transfer agent
other than the corporation itself, or an employee of the corporation, or by a
transfer clerk and registered by a registrar, the signatures of the president or
vice-president and the secretary or assistant secretary upon such certificate
may be facsimiles. In case any officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the corporation
with the same effect as if such officer had not ceased to hold office at the
date of its issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificates for shares to be lost or destroyed. When authorizing such issue of
a new certificate or certificates, the board of directors may, in its discretion
and as a condition precedent to the
<PAGE>
issuance thereof, require the owner of such lost or destroyed certificate or
certificates, or his legal representative to advertise the same in such manner
as it shall require and/or give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost or destroyed.
<PAGE>
TRANSFERS OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
CLOSING OF TRANSFER BOOKS AND FIXING RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders, or shareholders entitled
to receive payment of any dividend, or in order to make a determination of
shareholders for any proper purpose, the board of directors may provide that
the stock-transfer books shall be closed for a stated period but not to
exceed, in any case, fifty days. If the stock-transfer books shall be closed
for the purpose of determining shareholders entitled to notice of or to vote
at a meeting of shareholders, such books shall be closed for at least ten
days immediately preceding such meeting. In lieu of closing the
stock-transfer books, the board of directors may fix, in advance, a date as
the record date for any determination of shareholders, such date in any case
to be not more than fifty days and, in case of a meeting of shareholders, not
less than ten days prior to the date on which the particular action requiring
such determination of shareholders is to be taken. If the stock-transfer
books are not closed and no record date is fixed for the determination of
shareholders entitled to notice of or to vote at a meeting of shareholders,
or shareholders entitled to receive payment of a dividend, the date on which
notice of the meeting is mailed or the date on which the resolution of the
board of
<PAGE>
directors declaring such dividend is adopted, as the case may be, shall be the
record date for such determination of shareholders.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of the District of Columbia.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. The board of directors may declare and the corporation may
pay dividends on its outstanding shares in cash, property, or its own shares
pursuant to law and subject to the provisions of its articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE>
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday of April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
District of Columbia". The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended, or repealed or new
by-laws adopted at any regular meeting of the board of directors or at any
special meeting of the board of directors if notice of such proposed action be
contained in the notice of such special meeting.
<PAGE>
Exhibit 3.11
<TABLE>
<CAPTION>
Phone: (503)986-2200
Fax: (503) 378-4381 Restated Articles of Incorporation-Business/Professional/Nonprofit
--------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Secretary of State Check the appropriate box below: For office use only
Corporation Division
225 Capitol St. NE, Suite 151 x BUSINESS/PROFESSIONAL CORPORATION
Salem, OR 97310-1327 (Complete only 1, 2, 3, 4, 6, 7)
NONPROFIT CORPORATION
(Complete only 1, 2, 3, 5, 6, 7)
</TABLE>
Registry Number: 1175984
Attach Additional Sheet if Necessary
Please Type or Print Legibly in Black Ink
1) NAME OF CORPORATION PRIOR To AMENDMENT BINDERY SYSTEMS, INC.
2) NEW NAME OF THE CORPORATION (if changed)
3) A COPY OF THE RESTATED ARTICLES MUST BE ATTACHED
--------------
----------
<TABLE>
<CAPTION>
BUSINESS/PROFESSIONAL CORPORATION ONLY NONPROFIT CORPORATION ONLY
4) CHECK THE APPROPRIATE STATEMENT 5) CHECK THE APPROPRIATE STATEMENT
<S> <C>
The restated articles contain amendments which do not The restated articles contain amendments which do not
require shareholder approval. these amendments were duty require membership approval. The date of the adoption of
adopted by the board of directors. the amendments and restated articles was 19-. These
amendments were duly adopted by the board of directors.
The restated articles contain amendments which require The restated articles contain amendments
shareholder approval. The vote of the shareholders was as which require membership approval. The date of the
follows: adoption of the amendments and restated
was as follows:
</TABLE>
<TABLE>
<CAPTION>
Class or Number of Number of Number of Number of Class(es) Number of Number of Number of Number of
series of shares votes entitled votes cast votes cast entitled members entitled votes entitled Votes cast votes cast
shares outstanding to be cast FOR AGAINST to vote to vote to be cast FOR AGAINST
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Common
100 100 100 0
Stock
</TABLE>
The corporation has not issued any shares of stock. Shareholder action was
not required to adopt the restated articles. The restated articles were
adopted by the incorporators or by the board of directors.
0000000000000000
6) EXECUTION
Printed Name Sign Title
Mark D. Director /s/ Mark D. Director Vice President
7) CONTACT NAME DAYTIME PHONE NUMBER
Colleen Johnson (202) 339-6708
FEES
Make check for $10 payable to
"Corporation Division."
NOTE: Filing fees maybe paid
with VISA or MasterCard. The
card number and inpiration date
Should be submitted on a
Seperate sheet for your
protection.
<PAGE>
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
BINDERY SYSTEMS, INC.
PLEASE TYPE OR PRINT LEGIBLY IN BLACK INK
ARTICLE 1: Name of the Corporation: Bindery Systems, Inc.
Note: The name must contain the word "Corporation", "Company",
"Incorporated", or "Limited", or an abbreviation of one of
such words.
ARTICLE 2: Number of shares the corporation will have authority to issue:
1,000 shares of Common Stock with no par value
ARTICLE 3: Name of the registered agent: -C T Corporation System
Address of registered office (must be a street address in
Oregon which is identical to the registered agent's business
office):
520 S.W. Yamhill, Suite 800 Portland Oregon 97204
Street and number city Zip Code
Mailing address of registered agent (if different from the
registered office):
Street and number city Zip Code
ARTICLE 4: Address where the Division may mail notices:
1025 Thomas Jefferson St., NW, Ste. 600 East Washington, DC
20007
ARTICLE 5: The existence of the Corporation is: perpetual
ARTICLE 6: The purpose of the Corporation is: To engage in all acts and
activities as May be approved by the Board of Directors and
permitted by the Oregon Business Corporation Act and the laws
of the state of Oregon.
<PAGE>
Exhibit 3.12
BINDERY SYSTEMS, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in Portland, Oregon.
Section 2. The corporation may also have offices at such other places
both within and without the State of Oregon as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in Beaverton, State of Oregon, at such place as may be fixed from
time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect by a plurality vote a
<PAGE>
board of directors, and transact such other business as may properly be brought
before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be delivered not less than ten nor more
than sixty days before the date of the meeting, either personally or by mail, by
or at the direction of the president, the secretary, or the officer or persons
calling the meeting, to each shareholder of record entitled to vote at such
meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Oregon as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president, the board of directors, or the
holders of not less than one-tenth of all the shares entitled to vote at the
meeting.
Section 3. Written or printed notice of a special meeting stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than ten nor more than sixty days
before the date of the meeting, either personally or by mail, by or at the
direction of the president, the secretary, or the officer or persons calling the
meeting, to each shareholder of record entitled to vote at such meeting.
<PAGE>
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
<PAGE>
Section 4. Any action required to be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Directors need not be
residents of the State of Oregon nor shareholders of the corporation. The
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
Section 2. Any vacancy occurring in the board of directors, including a
vacancy resulting from an increase in the number of directors, may be filled by
the shareholders, the board of directors, or if the directors remaining in
office constitute fewer than a quorum of the board, the vacancy may be filled by
the affirmative vote of the directors remaining in office. If the vacant office
is filled by the shareholders and was held by a director elected by a voting
group of shareholders, then only the holders of shares of that voting group are
entitled to vote to fill the vacancy.
Section 3. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Oregon, at such place or places as they may from time to time determine.
<PAGE>
Section 4. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for services to the corporation as directors, officers or
otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Oregon.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 10 days' notice to each director, either personally or by mail
or by telegram; special meetings shall be called by the president or secretary
in like manner and on like notice on the written request of two directors.
<PAGE>
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater number is required by law or by the
articles of incorporation. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
unless the act of a greater number is required by statute or by the articles of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting, from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors entitled to
vote with respect to the subject matter thereof.
ARTICLE VII
COMMITTEES
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the by-laws or otherwise, may designate two
or more directors to constitute a committee, which committee, to the extent
provided in such resolution, shall
<PAGE>
have and exercise all of the authority of the board of directors in the
management of the corporation, except as otherwise required by law. Vacancies in
the membership of the committee shall be filled by the board of directors at a
regular or special meeting of the board of directors. The committee shall keep
regular minutes of its proceedings and report the same to the board when
required.
ARTICLE VIII
NOTICE
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these by-laws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these by-laws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
<PAGE>
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
Section 2. The board of directors at its first meeting after each annual
meeting of shareholders shall choose a president, one or more vice-presidents, a
secretary and a treasurer, none of whom need be a member of the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
<PAGE>
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents, in the order determined by the board of directors, shall, in
the absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the
<PAGE>
corporation and of the board of directors in a book to be kept for that purpose
and shall perform like duties for the standing committees when required. He
shall give, or cause to be given, notice of all meetings of the shareholders and
special meetings of the board of directors, and shall perform such other duties
as may be prescribed by the board of directors or president, under whose
supervision he shall be. He shall have custody of the corporate seal of the
corporation and he, or an assistant secretary, shall have authority to affix the
same to any instrument requiring it and when so affixed, it may be attested by
his signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries, in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
<PAGE>
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers, in the order determined by the board of
directors, shall, in the absence or disability of the treasurer, perform the
duties and exercise the powers of the treasurer and shall perform such other
duties and have such other powers as the board of directors may from time to
time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be uncertificated or
shall be represented by certificates signed by the president or a vice-president
and the secretary or an
<PAGE>
assistant secretary of the corporation which may be sealed with the seal of the
corporation or a facsimile thereof.
When the corporation is authorized to issue shares of more than one
class, every certificate or, in the case of uncertificated shares a written
statement delivered to the shareholder, shall set forth a statement of the
designations, preferences, limitations and relative rights of the shares of each
class authorized to be issued, as required by the laws of the State of Oregon.
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent, or registered by a registrar, other than the corporation itself or an
employee of the corporation. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
uncertificated security to be issued in place of any certificate theretofore
issued by the corporation alleged to have been lost or destroyed. When
authorizing such issue of a new certificate or uncertificated security, the
board of directors, in its discretion and as a condition precedent to the
issuance thereof, may prescribe such terms and conditions as it deems expedient,
and may require such indemnities as it deems adequate, to protect the
corporation from any
<PAGE>
claim that may be made against it with respect to any such certificate alleged
to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
FIXING RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders, or any adjournment thereof
or entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than seventy
days prior to the meeting or the particular action requiring such determination
of shareholders. If no record date is fixed for the determination of
shareholders entitled to notice of or to vote at a meeting of shareholders, or
shareholders entitled to receive payment of a dividend, the date on which notice
of the meeting is mailed or the date on which the resolution of the board of
directors declaring such dividend is adopted, as the case may be, shall be the
record date for
<PAGE>
such determination of shareholders. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as provided in
this section, such determination shall apply to any adjournment thereof.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Oregon.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the transfer books for
shares shall make, at least two days after notice of each meeting of
shareholders is given, a complete record of the shareholders entitled to vote at
such meeting, arranged in alphabetical order, with the address of each and the
number of shares held by each, which record shall be kept on file at the
principal office of the corporation or at the place of the meeting and shall be
subject to inspection by any shareholder at any time during usual business
hours. Such record shall be kept open through the time of the meeting and shall
be subject to the inspection of any shareholder during the whole time of the
meeting. The original share
<PAGE>
ledger or transfer book, or a duplicate thereof, shall be prima facie evidence
as to who are the shareholders entitled to examine such record or share ledger
or transfer book or to vote at any meeting of the shareholders.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of stock, subject to any provisions of the articles of
incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors, from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE>
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Oregon." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the affirmative vote of a majority of the board of
directors at any regular or
<PAGE>
special meeting of the board, unless otherwise provided by the articles of
incorporations or by law.
Section 2. A by-law that fixes a greater quorum requirement for the
board of directors may be amended or repealed by the shareholders if the
provision was originally adopted by the shareholders or by either the
shareholders or the board of directors if the provision was originally adopted
by the board of directors.
<PAGE>
Exhibit 3.13
MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES
CORPORATION, SECURITIES AND LAND DEVELOPMENT BUREAU
---------------------------------------------------
Date Received (FOR BUREAU USE ONLY)
Name
Colleen D. Johnson
Address
1025 Thomas Jefferson street, NW, Ste. 600 East
City State Zip Code
Washington DC 20007 EFFECTIVE DATE:
Document will be returned to the name and address you enter above
RESTATED ARTICLES OF INCORPORATION
For use by Domestic Profit Corporations
(Please read information and instructions on last page)
Pursuant to the provisions of Act 284, Public Acts of 1972. the undersigned
corporation executes the following Articles:
1. The present name of the corporation is:
Bob Brines Office Supply Co.
2. The identification number assigned by the Bureau is: 11 3 7 6 4
3. All former names of the corporation are:
4. The date of filing the original Articles of Incorporation was: November 24,
1976
The following Restated Articles of Incorporation supersede the Articles of
Incorporation as amended and shall be the Articles of Incorporation for the
corporation:
ARTICLE I
The name of the corporation is: US OFFICE PRODUCTS, MIDWEST DISTRICT, INC.
ARTICLE 11
The purpose or purposes for which the corporation is formed are: To engage in
any activity within the purposes for which corporations may be formed under the
Business Corporation Act of Michigan.
<PAGE>
ARTICLE III
The total authorized shares:
Common shares 1,000 shares, without par value Preferred shares
A statement of all or any of the relative rights, preferences and limitations of
the shares of each class is as follows:
None
ARTICLE IV
1. The address of the current registered office is:
30600 Telegraph Road Bingham Farms Michigan 48025
(Street Address) (City) (ZIP Code)
2. The mailing address of the current registered office if different than
above:
(Street Address or P.O. Box) (City) , Michigan (ZIP Code)
3. The name of the current resident agent is: The Corporation Company
ARTICLE V (Optional. Delete if not applicable.)
Any action required or permitted by the Act to be taken at an annual or special
meeting of shareholders may be taken without a meeting, without prior notice,
and without a vote, if consents in writing, setting forth the action so taken,
are signed by the holders of outstanding shares having not less than the minimum
number of votes that would be necessary to authorize or take the action at a
meeting at which all shares entitled to vote on the action were present and
voted. The written consents shall bear the date of signature of each shareholder
who signs the consent. No written consents shall be effective to take the
corporate action referred to unless, within 60 days after the record date for
determining shareholders entitled to express consent to or to dissent from a
proposal without a meeting, written consents dated not more than 10 days before
the record date and signed by a sufficient number of shareholders to take the
action are delivered to the corporation. Delivery shall be to the corporation's
registered office, its principal place of business, or an officer or agent of
the corporation having custody of the minutes of the proceedings of its
shareholders. Delivery made to a corporation's registered office shall be by
hand or by certified or registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to shareholders who would have
been entitled to notice of the shareholder meeting if the action had been taken
at a meeting and who have not consented in writing.
<PAGE>
ARTICLE VI (Additional provisions, if any, may be inserted here; attach
additional pages if needed.)
COMPLETE SECTION (a) IF THE RESTATED ARTICLES WERE ADOPTED BY THE UNANIMOUS
CONSENT OF THE INCORPORATOR(S) BEFORE THE FIRST MEETING OF THE BOARD OF
DIRECTORS; OTHERWISE, COMPLETE SECTION (b). DO NOT COMPLETE BOTH.
a. / / These Restated Articles of Incorporation were duly adopted on the -day
of , 19 in accordance with the provisions of Section 642
of the Act by the unanimous of the incorporator(s) before the first
meeting of the Board of Directors. Signed this day of
, 19
(Signatures of Incoroorators: Type or Print Name Under Each Signature)
b. /x/ These Restated Articles of Incorporation were duly adopted on the 25th
day of September 1998 in accordance with the provisions of Section 642
of the Act and: (check one of the following)
/ / were duly adopted by the Board of Directors without a vote of the
shareholders. These Restated Articles of Incorporation only restate and
integrate and do not further amend the provisions of the Articles of
Incorporation as heretofore amended and there is no material discrepancy
between those provisions and the provisions of these Restated Articles.
/ / were duly adopted by the shareholders. The necessary number of shares as
required by statute were voted in favor of these Restated Articles.
/ / were duly adopted by the written consent of the shareholders having not
less than the minimum number of votes required by statute in accordance
with Section 407(1) of the Act. Written notice to shareholders who have
not consented in writing has been given. (Note: Written consent by less
than all of the shareholders is permitted only if such provision appears
in the Articles of Incorporation.)
/ / were duly adopted by the written consent of all the Shareholders entitled
to vote in accordance with section 407(2) of the Act.
Signed this 25th day of October, 1998
By: /s/ Mark D. Director
--------------------
(Signature of. President, Vice-President, Chairperson or Vice-Chairperson)
Mark D. Director Vice-President
(Type or Print Name) (Type or Print Title)
<PAGE>
Name of person or organization Preparer's name and business
remitting fees: telephone number:
US Office Products company Colleen Johnson
(202 )339-6708
INFORMATION AND INSTRUCTIONS
I. The articles of incorporation cannot be restated until this form, or a
comparable document, is submitted.
2. Submit one original of this document. Upon filing, the document will be
added to the records of the Corporation, Securities and Land Development
Bureau. The original will be returned to the address appearing in the box
on the front as evidence of filing.
Since this document will be maintained on optical disk media, it is
important that the filing be legible. Documents with poor black and white
contrast, or otherwise illegible, will be rejected.
3. This document is to be used pursuant to sections 641 through 643 of the Act
for the purpose of restating the articles of incorporation of a domestic
profit corporation. Restated articles of incorporation are an integration
into a single instrument of the current provisions of the corporation's
articles of incorporation, along with any desired amendments to those
articles.
4. Restated articles of incorporation which do not amend the articles of
incorporation may be adopted by the board of directors without a vote of
the shareholders. Restated articles. of incorporation which amend the
articles of incorporation require adoption by the shareholders. Restated
articles of incorporation submitted before the first meeting of the board
of directors require adoption by all of the incorporators.
5. Item 2 - Enter the identification number previously assigned by the Bureau.
If this number is unknown, leave it blank.
6. The duration of the corporation should be stated in the restated articles
of incorporation only if it is not perpetual.
7. This document is effective on the date endorsed "filed" by the Bureau. A
later effective date, no more than 90 days after the date of delivery, may
be stated as an additional article.
8. If the restated articles are adopted before the first meeting of the board
of directors, item 5(a) must be completed and signed in ink by a majority
of the incorporators. Other restated articles must be signed by the
president, vice-president, chairperson or vice-chairperson of the
corporation.
9. FEES: Make remittance payable to the State of Michigan. Include corporation
name and identification number on check or money order.
<TABLE>
<S> <C>
NONREFUNDABLE FEE ................................................$10.00
TOTAL MINIMUM FEE ................................................$10.00
ADDITIONAL FEES DUE FOR INCREASED AUTHORIZED SHARES ARE:
each additional 20,000 authorized shares or portion thereof ......$30.00
maximum fee per filing for first 10,000 authorized shares
$5,000.00
each additional 20,000 authorized shares or portion
thereof in excess of 10,000,000 shared ...................... $30.00
maximum fee per filing for authorized shares in excess of
10,000,000 shares ........................................$200,000.00
</TABLE>
10. Mail form and fee to: The office is located at:
Michigan Department of Consumer and 6546 Mercantile Way
Industry Services Corporation, Lansing, MI 48910
Securities and Land Development Bureau (517) 334-6302
Corporation Division
P.O. Box 30054
Lansing, MI 48909-7554
<PAGE>
Exhibit 3.14
US OFFICE PRODUCTS, MIDWEST DISTRICT, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in St. Louis,
Missouri.
Section 2. The corporation may also have offices at such other places
both within and without the State of Missouri as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in St. Louis, State of Missouri, at such place as may be fixed
from time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect by a plurality vote a
<PAGE>
board of directors, and transact such other business as may properly be brought
before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be delivered not less than ten nor more
than seventy days before the date of the meeting, either personally or by mail,
by or at the direction of the president, or the secretary, or the officer or
persons calling the meeting, to each shareholder of record entitled to vote at
such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Missouri as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the board of directors or by such other person
or persons as may be provided in the articles of incorporation.
Section 3. Written or printed notice of a special meeting stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than ten nor more than seventy
days before the date of the meeting, either personally or by mail, by or at the
direction of the president, or the secretary, or the officer
<PAGE>
or persons calling the meeting, to each shareholder of record entitled to vote
at such meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
<PAGE>
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Unless otherwise provided by the articles of incorporation, each
shareholder in electing directors shall have the right to cast as many votes in
the aggregate as shall equal the number of votes held by him in the corporation
multiplied by the number of directors to be elected at the election, and each
shareholder may cast the whole number of votes, either in person or by proxy,
for one candidate, or distribute them among two or more candidates.
Section 4. Any action required to be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Directors need not be
residents of the State of Missouri nor shareholders of the corporation. The
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
<PAGE>
Section 2. Unless otherwise provided in the articles of incorporation or
these bylaws, any vacancy occurring in the board of directors and any newly
created directorship resulting from any increase in the number of directors to
constitute the board of directors may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole remaining director,
until the next election of directors by the shareholders.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these bylaws directed or required to be exercised or done by
the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Missouri, at such place or places as the directors may from time to time
determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for services to the corporation as directors, officers or
otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Missouri.
<PAGE>
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 10 days' notice to each director, either personally or by mail
or by facsimile telecommunication; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
Section 6. A majority of the full board of directors shall constitute a
quorum for the transaction of business unless a greater number is required by
statute or by the articles of incorporation. The act of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the board of directors, unless the act of a greater number is required by
statute or by the articles of incorporation. If a quorum shall not be
<PAGE>
present at any meeting of directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors, or of the executive committee or any other committee of the
directors, may be taken without a meeting, if a consent in writing, setting
forth the action so taken, shall be signed by all of the members of the board or
of the committee entitled to vote with respect to the subject matter thereof.
Section 8. Unless otherwise restricted by the articles of incorporation
or these bylaws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors or committee by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear each other, and participation in a meeting in this manner shall constitute
presence in person at the meeting.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the bylaws or otherwise, may designate two
or more directors to constitute an executive committee, which committee, to the
extent provided in such resolution, shall have and exercise all of the authority
of the board of directors in the
<PAGE>
management of the corporation, except as otherwise required by law. Vacancies in
the membership of the committee shall be filled by the board of directors at a
regular or special meeting of the board of directors. The executive committee
shall keep regular minutes of its proceedings and report the same to the board
when required.
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these bylaws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by facsimile telecommunication.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these bylaws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
<PAGE>
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
Section 2. The board of directors at its first meeting after each annual
meeting of shareholders shall choose a president, one or more vice-presidents, a
secretary and a treasurer, none of whom need be a member of the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
<PAGE>
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
<PAGE>
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
<PAGE>
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and
<PAGE>
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates signed by the president or a vice-president and the secretary or an
assistant secretary or the treasurer or an assistant treasurer of the
corporation, and sealed with the seal of the corporation or a facsimile thereof.
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as
<PAGE>
it deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
CLOSING OF TRANSFER BOOKS
Section 5. The board of directors shall have power to close the transfer
books of the corporation for a period not exceeding seventy days preceding the
date of any meeting of shareholders or the date for payment of any dividend or
the date for the allotment of rights or the date when any change or conversion
or exchange of shares shall go into effect; provided, however, that in lieu of
closing the transfer books, the board of directors may fix in advance a date,
not exceeding seventy days preceding the date of any meeting of shareholders, or
the date for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of shares shall go
into effect,
<PAGE>
as a record date for the determination of the shareholders entitled to notice
of, and to vote at the meeting, and any adjournment thereof, or entitled to
receive payment of the dividend, or entitled to any such allotment of rights, or
entitled to exercise the rights in respect of the change, conversion or exchange
of shares, and in such case, only the shareholders who are shareholders of
record on the date of closing the transfer books or on the record date so fixed
shall be entitled to notice of, and to vote at, the meeting, and any adjournment
thereof, or to receive payment of the dividend, or to receive the allotment of
rights, or to exercise the rights, as the case may be, notwithstanding any
transfer of any shares on the books of the corporation after the date of closing
of the transfer books or the record date fixed as aforesaid. If the board of
directors does not close the transfer books or set a record date for the
determination of the shareholders entitled to notice of, and to vote at, a
meeting of shareholders, only the shareholders who are shareholders of record at
the close of business on the twentieth day preceding the date of the meeting
shall be entitled to notice of, and to vote at, the meeting, and any adjournment
of the meeting; except that, if prior to the meeting, written waivers of notice
of the meeting are signed and delivered to the corporation by all of the
shareholders of record at the time the meeting is convened, only the
shareholders who are shareholders of record at the time the meeting is convened
shall be entitled to vote at the meeting, and any adjournment of the meeting.
<PAGE>
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Missouri.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the transfer books for
shares shall make, at least ten days before each meeting of shareholders, a
complete list of the shareholders entitled to vote at such meeting, arranged in
alphabetical order, with the address of each and the number of shares held by
each, which list, for a period of ten days prior to such meeting, shall be kept
on file at the registered office of the corporation and shall be subject to
inspection by any shareholder at any time during usual business hours. Such list
shall also be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any shareholder during the whole time of
the meeting. The original share ledger or transfer book, or a duplicate thereof,
shall be prima facie evidence as to who are the shareholders entitled to examine
such list or share ledger or transfer book or to vote at any meeting of the
shareholders.
<PAGE>
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of the capital stock, subject to any provisions of the
articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Missouri". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. If provided by the articles of incorporation, these bylaws
may be altered, amended, or repealed or new bylaws may be adopted by the
affirmative vote of a majority of the board of directors at any regular or
special meeting of the board.
<PAGE>
Exhibit 3.15
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BUSINESSWORKS, INC.
BusinessWorks, Inc., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is BusinessWorks, Inc. and the
name under which the corporation was originally incorporated
is MISSCO ACQUISITION CORP. The date of filing of its original
Certificate of Incorporation with the Secretary of State was
June 7, 1995.
2. This Amended and Restated Certificate of Incorporation
restates and integrates and further amends the Certificate of
Incorporation of this corporation in its entirety.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended and restated hereby
to read as herein set forth in full:
l. The name of the corporation is US OFFICE PRODUCTS,
MISSISSIPPI, INC.
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street,
in the City of Wilmington, County of New Castle. The name
of its registered agent at such address is The Corporation
Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for
which corporations may be organized under the General
Corporation Law of Delaware and in general, to possess and
exercise all
<PAGE>
the powers and privileges granted by the General
Corporation Law of Delaware or by any other law of
Delaware or by this Certificate of Incorporation together
with any powers incidental thereto, so far as such powers
and privileges are necessary or convenient to the conduct,
promotion or attainment of the business or purposes of the
corporation.
4. The total number of shares of stock which the corporation
shall have authority to issue is: One Thousand (1,000)
shares of Common Stock; all of such shares shall be without
par value.
5. The corporation is to have perpetual existence.
6. The corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed
by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
7. 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 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 any improper personal benefit.
4. This Amended and Restated Certificate of Incorporation was duly
adopted by unanimous written consent of the stockholders in accordance
with the applicable provisions of Section 228, 242 and 245 of the
General Corporation Law of the State of Delaware.
5. This Amended and Restated Certificate of Incorporation shall be
effective on October 1, 1998.
<PAGE>
IN WITNESS WHEREOF, said BusinessWorks, Inc. has caused this Amended and
Restated Certificate of Incorporation to be signed by Mark D. Director, its Vice
President, this Twenty-Fifth day of September, 1998.
BusinessWorks, Inc.
By: /s/ Mark D. Director
---------------------------------
Vice President
<PAGE>
Exhibit 3.16
US OFFICE PRODUCTS, MISSISSIPPI, INC.
* * * * *
AMENDED AND RESTATED
BY-LAWS
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of directors
shall be held in the City of Jackson, State of Mississippi at such place as may
be fixed from time to time by the board of directors, or at such other place
either within or without the State of Delaware as shall be designated from time
to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year1999,
shall be held during the first week of June at 10:00 a.m. or at such other date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than 10 nor more than 60 days before the date of the meeting.
Section 4. 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
<PAGE>
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than 10 nor more than 60 days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have 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 such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. 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 9. When a quorum is present at any meeting, the vote of the holders
of a majority of the stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the
question is one upon which by express provision of the statutes or of the
certificate of incorporation, a different vote is required in which case such
express provision shall govern and control the decision of such question.
<PAGE>
Section 10. 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, but no proxy shall be voted on after three years
from its date, unless the proxy provides for a longer period.
Section 11. 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 thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board
shall be 3. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under the
direction of its board of directors which may exercise all such powers of the
corporation and do all such
<PAGE>
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.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors shall
be held at such time and place as shall be fixed by the vote of the stockholders
at the annual meeting and no notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting, provided a
quorum shall be present. In the event of the failure of the stockholders to fix
the time or place of such first meeting of the newly elected board of directors,
or in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
board of directors, or as shall be specified in a written waiver signed by all
of the directors.
Section 6. Regular meetings of the board of directors may be held without
notice at such time and at such place as shall from time to time be determined
by the board.
Section 7. Special meetings of the board may be called by the president on
10 days' notice to each director, either personally or by mail or by facsimile
communication; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of the sole director.
Section 8. At all meetings of the board, a majority of directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be present
at any meeting of the board of directors the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 9. 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 or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
<PAGE>
Section 10. Unless otherwise restricted by the certificate of incorporation
or these by-laws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board 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.
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 the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
General Corporation Law of Delaware to be submitted to stockholders for approval
or (ii) adopting, amending or repealing any by-law of the corporation. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of incorporation
or these by-laws, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
<PAGE>
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of incorporation
or by law, any director or the entire board of directors may be removed, with or
without cause, by the holders of a majority of shares entitled to vote at an
election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by facsimile telecommunication.
Section 2. Whenever any notice is required to be given under the provisions
of the statutes or of the certificate of incorporation or of these by-laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurers. Any number of offices may be held by the same
person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation shall
be fixed by the board of directors.
<PAGE>
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his inability
or refusal to act, the vice-president (or in the event there be more than one
vice-president, the vice-presidents in the order designated by the directors, or
in the absence of any designation, then in the order of their election) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
<PAGE>
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the treasurer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. 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 or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer- or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
<PAGE>
Section 2. Any of or all the signatures on a certificate may be 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 were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. 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. A
<PAGE>
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.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting, and
at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be the last Saturday in
April.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new by-laws
may be adopted by the stockholders or by the board of directors, when such power
is conferred upon the board of directors by the certificate of incorporation at
any regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors if notice of
such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
by-laws is conferred upon the board of directors by the certificate of
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
<PAGE>
Exhibit 3.17
CERTIFICATE OF AMENDMENT AND RESTATEMENT
TO THE CERTIFICATE OF FORMATION
OF
CARITHERS-WALLACE-COURTENAY, LLC
1. The name of the limited liability company is CARITHERS-WALLACE-COURTENAY,
LLC, which was formed on April 9, 1998 under the original name of
CARITHERS-WALLACE-COURTENAY, LLC.
2. The Certificate of Formation of the limited liability company is hereby
amended as follows:
FIRST: The name of the limited liability company formed hereby is US
OFFICE PRODUCTS, GEORGIA DISTRICT, LLC.
SECOND: The address of the company's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of
New Castle. The name of the company's registered agent as such
address is The Corporation Trust Company.
THIRD: The purpose of the company is to engage in any lawful act or
activity for which a limited liability company may be organized
under the Delaware Limited Liability Company Act.
FOURTH: No member of the company shall be obligated personally for any
debt, obligation or liability of the company solely by reason of
being a member of the company. The failure to observe any
formalities relating to the business or affairs of the company
shall not be grounds for imposing personal liability on any member
for the debts, obligations or liabilities of the company.
FIFTH: The company reserves the right to amend or repeal any provision
contained herein in the manner now or hereafter prescribed by law.
3. This Certificate of Amendment and Restatement shall be effective on October
1, 1998.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment
and Restatement of Carithers-Wallace-Courtenay, LLC this Twenty-Fifth day of
September, 1998.
U.S. OFFICE PRODUCTS COMPANY
Its Sole Member
By: /s/ Mark D. Director
---------------------------------------------
Mark D. Director
Executive Vice President - Administration
<PAGE>
Exhibit 3.18
OPERATING AGREEMENT OF
CARITHERS-WALLACE-COURTENAY, LLC
A DELAWARE LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT (this "Agreement") of
Carithers-Wallace-Courtenay, LLC, a Delaware limited liability company (the
"Company"), is entered into as of April 9, 1998 and shall constitute the
"limited liability company agreement" of the Company within the meaning of
Section 18-101(7) of the Delaware Limited Liability Company Act, Title 6,
Delaware Corporations Code, Section 18-101 et seq., as amended (the "Act").
1.1 Except as otherwise provided in this Agreement, the default
provisions of the Act shall apply to the Company.
1.2 U.S. Office Products Company, a Delaware corporation, shall be the
sole "member" of the Company within the meaning of Section 18-101(11) of the Act
(the "Member").
1.3 The Member hereby enters into and forms the Company as a limited
liability company in accordance with the Act. The name of the Company shall be
"Carithers-Wallace-Courtenay, LLC."
1.4 The Company shall maintain a Delaware registered office and agent
for the service of process as required by the Act. In the event the registered
agent ceases to act as such for any reason or the registered office shall
change, the Member shall promptly designate a replacement registered agent or
file a notice of change of address, as the case may be.
1.5 The purpose and scope of the Company shall be to engage in any
lawful act or activities as shall be determined by the Member in its sole and
absolute discretion.
1.6 The term (the "Term") of the Company shall begin as of the date of
filing of the Certificate of Formation for the Company in accordance with
Section 18-201 of the Act and shall continue until dissolved by the Member in
its sole and absolute discretion. Except as specifically provided in this
Section 1.6, the Company shall not be dissolved prior to the end of its Term.
1.7 Title to all Company property shall be held in the name of the
Company; provided, however, that the Company shall make such distributions of
cash and/or property to the Member from time to time as the Member shall
determine in its sole and absolute discretion.
1.8 Except as otherwise required by applicable law, the Member shall
have no personal liability for the debts and obligations of the Company.
1
<PAGE>
1.9 The Member shall have no obligation to make any contributions to
the capital of the Company and shall make only such contributions as the Member
shall determine in its sole and absolute discretion.
1.10 The Member shall have no obligation to provide any services to the
Company and shall provide only such services as the Member shall determine in
its sole and absolute discretion.
1.11 The Company shall indemnify the Member to the fullest extent
permitted by law.
1.12 Pursuant to Sections 18-402 and 18-407 of the Act, the Member
shall delegate the management and operation of the Company to Arnold V. Malm,
David Randolph, J. Wayne Langley, Kathleen M. Delaney, and Mark D. Director, who
shall act as managers of the Company. Arnold V. Malm shall hold the office of
President of the Company, David Randolph shall hold the office of Treasurer of
the Company, J. Wayne Langley shall hold the office of Secretary of the Company,
Kathleen M. Delaney shall hold the office of Vice-President of the Company, and
Mark D. Director shall hold the offices of Vice-President and Assistant
Secretary of the Company, each to serve until his successor is duly elected and
qualified. Notwithstanding any provision of this Agreement to the contrary, any
contract, agreement, deed, lease, note or other document or instrument executed
on behalf of the Company by the Member or managers shall be deemed to have been
duly executed and third parties shall be entitled to rely upon the Member's
and/or managers' power to bind the Company without otherwise ascertaining that
the requirements of this Agreement have been satisfied.
1.13 The "Carithers-Wallace-Courtenay" name and mark are the property
of the Member. The Company's authority to use such names and marks may be
withdrawn by the Member at any time without compensation to the Company.
Following the dissolution and liquidation of the Company, all right, title and
interest in and to such names and marks shall be held solely by the Member.
1.14 The interpretation and enforceability of this Agreement and the
rights and liabilities of the Member as such shall be governed by the laws of
the State of Delaware as such laws are applied in connection with limited
liability company operating agreements entered into and wholly performed upon in
Delaware by residents of Delaware. To the extent permitted by the Act and other
applicable law, the provisions of this Agreement shall supersede any contrary
provisions of the Act or other applicable law.
1.15 In the event any provision of this Agreement is determined to be
invalid or unenforceable, such provision shall be deemed severed from the
remainder of this Agreement and replaced with a valid and enforceable provision
as similar in intent as reasonably possible to the provision so severed, and
shall not cause the invalidity or unenforceability of the remainder of this
Agreement.
2
<PAGE>
1.16 This Agreement may be amended, in whole or in part, only through a
written amendment executed by the Member.
1.17 This Agreement contains the entire understanding and intent of the
Member regarding the Company and supersedes any prior written or oral agreement
respecting the Company. There are no representations, agreements, arrangements,
or understandings, oral or written, of the Member relating to the Company which
are not fully expressed in this Agreement.
IN WITNESS WHEREOF, the Member has executed this Agreement as of the
date first above written.
U.S. OFFICE PRODUCTS COMPANY,
Sole Member
- -------------------------------
Mark D. Director
Executive Vice President - Administration
and General Counsel
3
<PAGE>
Exhibit 3.19
State of North
Carolina
Department of the Secretary of State
ARTICLES OF RESTATEMENT
FOR BUSINESS CORPORATION
Pursuant to Sections 55-10-07 of the General Statutes of North Carolina, the
undersigned corporation hereby submits the following for the purpose of
restating its Articles of Incorporation.
I .The name of the corporation is: CAROLINA OFFICE EQUIPMENT COMPANY
2. The text of the Restated Articles of Incorporation is
attached.
3. (Check a, b, c, and / or d, as applicable.)
a.- These Restated Articles of Incorporation were adopted by the
board of directors and do not contain an amendment.
b. These Restated Articles of Incorporation. were adopted by the
board of directors and contain an amendment not requiring
shareholder approval.. (Set forth a brief explanation of why
shareholder approval was not required for such amendment.)
C. X These Restated Articles of Incorporation, which contain an
--- amendment requiring shareholder approval, and shareholder
approval was obtained as required by Chapter 55 the North
Carolina General Statutes.
4. If the Restated Articles of Incorporation contain an amendment providing
for an exchange, reclassification, or cancellation of issued shares,
provisions for implementing the amendment, if not contained in the
amendment itself, are as follows: See 1 in Addendum
5. These articles will be effective upon filing, unless a delayed date and/or
time is specified: October 1, 1998
This the 25th day of September 1098
CAROLINA OFFICE EQUIPMENT COMPANY
/s/ Mark D. Director
(Signature)
Mark D. Director
(Type or Print Name and Title)
NOTES:
1. Filing fee is $10, unless the Restated Articles of Incorporation include an
amendment ~ in which case the filing fee is $50. This document and one
exact or conformed copy of these articles must be filed with the
Secretary of State
(Revised July 1994)
CORPORATIONS DIVISION 300 N. SALISBURY STREET RALEIGH, NC
27603-5909
(N. C. 1213 - 8/18/94)
<PAGE>
Addendum
Upon the effectiveness of this amendment, the 100 shares of Common Stock, par
value $100 per share of the Corporation (the "Old Stock"), that are issued and
outstanding shall be converted into 1,000 issued shares of Common Stock, no par
value per share, of the Corporation (the "New Stock"), on the basis of ten
shares of New Stock for each share of Old Stock. Upon the effectiveness of this
amendment, holders of issued shares of the Old Stock, upon surrendering
certificates evidencing the issued shares of Old Stock for cancellation, shall
be entitled to receive certificates of the New Stock on the basis set forth
above.
I OF I
<PAGE>
STATE OF NORTH CAROLINA
DEPARTMENT OF THE SECRETARY OF STATE
AMENDED AND RESTATED ARTICLES OF INCORPORATION
1. The name of the corporation is: US Office Products, Carolinas District,
----------------------------------------
Inc.
-----
2. The duration of the corporation shall be perpetual
------------------------------
3. The corporation is authorized to issue 1,000 shares. These shares
-----
shall be: (check a or b)
a. X all of one class, designated as common stock; or
-----
b. divided into classes or series within a class as provided in
----- the attached aschedule, in accordance with NCGS ss.55-6-01.
4. The street address and county of the registered office of the
corporation is:
Number and Street: 225 Hillsborough Street
-----------------------------------------------------
City, State, Zip Code: Raleigh, North Carolina 27603 County Wake
------------------------------- ----------
5. The mailing address if different from the street address of the
registered office is:
-----------------------------------------------------------------------
6. The name of the registered agent is: C T Corporation System
-----------------------------------
7. Any other provisions which the corporation elects to include are as
follows:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
8. The purpose of the corporation is as follows:
To render all services and do all things necessary or incidental to the
-----------------------------------------------------------------------
carrying on of any businesses in which this corporation may lawfully
-----------------------------------------------------------------------
engage.
9. These articles will be effective upon filing, unless a date and/or time
is specified:
October 1, 1998
-----------------------------------------------------------------------
<PAGE>
This the 25th day of September, 1998.
US Office Products, Carolinas District, Inc.
/s/ Mark D. Director
--------------------------------------------
Signature
Mark D. Director, Vice President
NOTES:
1. Filing fee is $100. One executed original and one exact or
conformed copy of these articles must be filed with the
Secretary of State.
<PAGE>
Exhibit 3.20
US OFFICE PRODUCTS, CAROLINAS DISTRICT, INC.
* * * * *
AMENDED AND RESTATED
B Y L A W S
* * * * *
ARTICLE I
OFFICES
Section l. The registered office shall be located in Raleigh, North
Carolina.
Section 2. The corporation may also have offices at such other places both
within and without the State of North Carolina as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section l. All meetings of shareholders for the election of directors
shall be held in Rocky Mount, State of North Carolina, at such place as may be
fixed from time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year 1999,
shall be held in the last week of June, if not a legal holiday, and if a legal
holiday, then on the next
<PAGE>
secular day following, at 10:00 A.M., at which they shall elect, pursuant to
law, a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
date, time, and place of the meeting, shall be delivered not less than ten (10)
days nor more than sixty (60) days before the date of the meeting, either
personally or by mail, by or at the direction of the president, the secretary,
or the officer or persons calling the meeting, to each shareholder of record
entitled to vote at such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section l. Special meetings of shareholders for any purpose other than the
election of directors may be held at such time and place within or without the
State of North Carolina as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, may be called by the president, the board of directors, or upon
written demand of at least ten percent (10%) of all of the votes entitled to be
cast on any issue proposed to be considered.
Section 3. Written or printed notice of a special meeting stating the
date, time, and place of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than ten (10) days nor more than
sixty (60) days before the date of the meeting, either personally or by mail, by
or at the direction of the president, the secretary, or the officer or persons
calling the meeting, to each shareholder of record entitled to vote at such
meeting.
<PAGE>
Section 4. The business transacted at any special meeting of shareholders
shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section l. A majority of the votes entitled to be cast on a matter by a
voting group constitutes a quorum of the voting group for action on that matter,
except as otherwise provided by statute or by the articles of incorporation. If,
however, such quorum shall not be present or represented at any meeting of the
shareholders, the shareholders present in person or represented by proxy shall
have 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
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified.
Section 2. If a quorum is present, action on a matter by a voting group is
approved if the votes cast within the voting group favoring the action exceed
the votes cast opposing the action.
Section 3. Each outstanding share, regardless of class, shall be entitled
to one vote on each matter submitted to a vote at a meeting of shareholders
unless the articles of incorporation provide otherwise. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or by his
duly authorized attorney-in-fact.
<PAGE>
Section 4. Any action required or permitted to be taken at a meeting of
the shareholders may be taken without a meeting, if one or more written consents
setting forth the action so taken shall be signed, either manually or in
facsimile, by all of the shareholders entitled to vote with respect to the
subject matter thereof.
ARTICLE V
DIRECTORS
Section l. The number of directors shall be 3. Directors need not be
residents of the State of North Carolina nor shareholders of the corporation.
The directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first meeting of shareholders.
Section 2. Any vacancy occurring in the board of directors, including a
vacancy resulting from an increase in the number of directors, may be filled by
the shareholders, the board of directors, or if the directors remaining in
office constitute fewer than a quorum of the board, the vacancy may be filled by
the affirmative vote of a majority of the directors remaining in office.
Section 3. The business affairs of the corporation shall be managed by its
board of directors, which may exercise all such powers of the corporation and do
all lawful acts.
<PAGE>
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
North Carolina, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for services to the corporation as directors, officers or
otherwise.
ARTICLE VI
BOARD OF DIRECTORS MEETINGS
Section l. Meetings of the board of directors, regular or special, may be
held either within or without the State of North Carolina.
Section 2. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 3. Special meetings of the board of directors may be called on 10
days' notice to each director, either personally, by mail or by telegram.
Section 4. Attendance or participation of a director at any meeting shall
constitute a waiver of notice of such meeting, unless the director, at the
beginning of the meeting, objects to holding the meeting or transacting business
at the meeting, and does not thereafter vote for or assent to action taken at
the meeting. Neither the business to be
<PAGE>
transacted at, nor the purpose of, any regular or special meeting of the board
of directors need be specified in the notice or waiver of the notice of such
meeting.
Section 5. A majority of the directors shall constitute a quorum for the
transaction of business, unless a greater number is required by law or by the
articles of incorporation. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
unless the act of a greater number is required by statute or by the articles of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting from time to time until a
quorum shall be present.
Section 6. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if one or more written consents,
setting forth the action so taken, shall be signed, either manually or in
facsimile, by all of the directors entitled to vote with respect to the subject
matter thereof.
ARTICLE VII
EXECUTIVE COMMITTEES
Section l. The board of directors, by resolution adopted by a majority of
the number of directors fixed by the bylaws or otherwise, may designate two or
more directors to constitute an executive committee, which committee, to the
extent provided in such resolution, shall have and exercise all of the authority
of the board of directors in the management of the corporation, except as
otherwise required by law. Vacancies in the membership of the committee shall be
filled by the board of directors at a regular or special meeting of the
<PAGE>
board of directors. The executive committee shall keep regular minutes of its
proceedings and report the same to the board when required.
ARTICLE VIII
NOTICES
Section l. Whenever notice is required to be given to any director or
shareholder under the provisions of the statutes, the articles of incorporation
or these bylaws, it shall be construed to mean written notice, which may be by
mail, addressed to such director or shareholder, at his address as it appears on
the records of the corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time it is deposited in the United States
mail or as otherwise provided by law. Notice to directors may also be given by
telegram.
Section 2. Whenever notice is required to be given under the provisions of
the statutes, the articles of incorporation or these bylaws, a waiver thereof,
in writing, signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent to the
giving of such notice.
ARTICLE IX
OFFICERS
Section l. The officers of the corporation shall be chosen by the board of
directors, and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors
<PAGE>
may also choose additional vice-presidents, and one or more assistant
secretaries and assistant treasurers.
Section 2. The board of directors, at its first meeting after each annual
meeting of shareholders, shall choose a president, one or more vice-presidents,
a secretary and a treasurer, none of whom need be a member of the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise
<PAGE>
signed and executed, and except where the signing and execution thereof shall be
expressly delegated by the board of directors to some other officer or agent of
the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders, and shall record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose, and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the shareholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation, and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring
it, and when so affixed, it may be attested by his signature or by the signature
of such assistant secretary. The board of directors may give general
<PAGE>
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his signature.
Section l0. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary, and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section ll. The treasurer shall have the custody of the corporate funds
and securities, and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation, and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the board of directors.
Section l2. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section l3. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the
<PAGE>
corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control, belonging to the corporation.
Section l4. The assistant treasurer or, if there shall be more than one,
the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer, and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section l. The shares of the corporation shall be represented by
certificates signed by the president or a vice-president and the secretary or
treasurer or an assistant secretary or treasurer of the corporation, or by the
board of directors, and may be sealed with the seal of the corporation or a
facsimile thereof.
When the corporation is authorized to issue different classes of shares or
different series within a class, there shall be set forth upon the face or back
of the certificate, or the certificate shall have a statement that the
corporation will furnish to any shareholder upon request and without charge, a
full statement of the designations, preferences, limitations, and relative
rights, applicable to each class, and the variations in the relative rights,
preferences, and limitations determined for each series and the authority of the
board of directors to determine variations for future series.
<PAGE>
LOST CERTIFICATES
Section 2. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation, which
is alleged to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 3. Upon surrender, to the corporation or the transfer agent of the
corporation, of a certificate representing shares duly endorsed or accompanied
by proper evidence of succession, assignment or authority to transfer, a new
certificate shall be issued to the person entitled thereto, and the old
certificate shall be cancelled and the transaction recorded upon the books of
the corporation.
CLOSING OF TRANSFER BOOKS
Section 4. For the purpose of determining shareholders entitled to notice
of, or to vote at, any meeting of shareholders, or any adjournment thereof, or
entitled to receive payment of any dividend, or in order to make a determination
of shareholders for any other proper
<PAGE>
purpose, the board of directors may fix a record date, in advance, that may not
be more than seventy (70) days before the meeting or action requiring a
determination of shareholders.
REGISTERED SHAREHOLDERS
Section 5. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends and to vote with respect to the shares shown to be owned, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the law.
LIST OF SHAREHOLDERS
Section 6. A list of shareholders as of the record date, certified by the
corporate officer responsible for its preparation or the transfer agent, shall
be open for inspection at any meeting of shareholders.
<PAGE>
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section l. Subject to the law and any applicable provisions of the
articles of incorporation, dividends may be declared by the board of directors
at any regular or special meeting, and may be paid in cash, in property or in
shares of the corporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends, such sum or sums as the
directors from time to time, in their absolute discretion, think proper, as a
reserve fund to meet contingencies, for equalizing dividends, for repairing or
maintaining any property of the corporation, or for such other purpose as the
directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
CHECKS
Section 3. All checks or demands for money, and notes of the corporation,
shall be signed by such officer or officers, or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday of April.
<PAGE>
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal, North
Carolina". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section l. These bylaws may be amended or repealed or new bylaws may be
adopted, by the affirmative vote of a majority of the board of directors at any
regular or special meeting of the board unless the articles of incorporation or
law reserves this power to the shareholders.
<PAGE>
Exhibit 3.21
RESTATED ARTICLES OF INCORPORATION
(without amendment)
OF
CENTRAL TEXAS OFFICE PRODUCTS, INC.
1. CENTRAL TEXAS OFFICE PRODUCTS, INC., pursuant to the provisions of Article
4.07 of the Texas Business Corporation Act, hereby adopts restated
articles of incorporation which accurately copy the articles of
incorporation and all amendments thereto that are in effect to date and
which contain no change in any provision thereof. The original articles of
incorporation were filed by the Secretary of State on the Twenty-Sixth day
of April, 1985.
2. The restated articles were adopted by the board of directors of the
corporation, by unanimous written consent of its members, filed with the
minutes of the board of directors.
3. The articles of incorporation and all amendments and supplements thereto
are hereby superseded by the following restated articles of incorporation
which accurately copy the entire text thereof:
<PAGE>
The articles of incorporated are amended and restated in their
entirety as set forth in Exhibit A attached hereto and made a
part hereof.
Dated Twenty-Fifth day of September, 1998.
CENTRAL TEXAS OFFICE PRODUCTS, INC.
By: /s/ Mark D. Director
--------------------------------------
Its Vice President
<PAGE>
Exhibit 3.22
CENTRAL TEXAS OFFICE PRODUCTS, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in Dallas, Texas.
Section 2. The corporation may also have offices at such other places
both within and without the State of Texas as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in Austin, State of Texas, at such place as may be fixed from time
to time by the board of directors. Said meetings may also be held at such other
place either within or without the State of Texas as shall be designated from
time to time by the board of directors and stated in the notice of the meeting.
<PAGE>
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be delivered not less than ten nor more
than fifty days before the date of the meeting, either personally or by mail, by
or at the direction of the president, the secretary, or the officer or persons
calling the meeting, to each shareholder of record entitled to vote at such
meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Texas as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president, the board of directors, or the
holders of not less than one-tenth of all the shares entitled to vote at the
meeting.
Section 3. Written or printed notice of a special meeting stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be
<PAGE>
delivered not less than ten nor more than fifty days before the date of the
meeting, either personally or by mail, by or at the direction of the president,
the secretary, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
<PAGE>
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Section 4. Any action required to be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Directors need not be
residents of the State of Texas nor shareholders of the corporation. The
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
Section 2. Any vacancy occurring in the board of directors may be filled
by the shareholders at an annual or a special meeting or by the affirmative vote
of a majority of the remaining directors though less than a quorum of the board
of directors. A director elected to fill a vacancy shall be elected for the
unexpired portion of the term of his predecessor in office.
<PAGE>
Any directorship to be filled by reason of an increase in the number of
directors may be filled by election at an annual meeting or at a special meeting
of shareholders called for that purpose. A director elected to fill a newly
created directorship shall serve until the next succeeding annual meeting of
shareholders and until his successor shall have been elected and qualified. Any
directorship to be filled by reason of an increase in the number of directors
may also be filled by the board of directors for a term of office until the next
election of directors by shareholders; provided no more than two directorships
may be so filled during a period between any two successive annual meetings of
shareholders.
Whenever the holders of any class or series of shares are entitled to
elect one or more directors by the provisions of the articles of incorporation,
any vacancies in such directorships and any newly created directorships of such
class or series to be filled by reason of an increase in the number of such
directors may be filled by the affirmative vote of a majority of the directors
elected by such class or series then in office or by a sole remaining director
so elected, or by the vote of the holders of the outstanding shares of such
class or series, and such directorships shall not in any case be filled by the
vote of the remaining directors or the holders of the outstanding shares as a
whole unless otherwise provided in the articles of incorporation.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
<PAGE>
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Texas, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for services to the corporation as directors, officers or
otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Texas.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
<PAGE>
Section 4. Special meetings of the board of directors may be called by
the president on 10 days' notice to each director, either personally or by mail
or by telegram; special meetings shall be called by the president or secretary
in like manner and on like notice on the written request of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater number is required by law or by the
articles of incorporation. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
unless the act of a greater number is required by statute or by the articles of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 7. Unless otherwise restricted by the articles of incorporation
or these by-laws, any action required or permitted to be taken at any meeting of
the board of directors or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case may be, consent
thereto in writing which shall set forth the action taken and be signed by all
members of the board of directors or of the committee as the case may be.
<PAGE>
ARTICLE VII
COMMITTEES OF DIRECTORS
Section 1. The board of directors, by resolution adopted by a majority
of the full board of directors, may designate from among its members an
executive committee and one or more other committees, each of which shall be
comprised of one or more members and, to the extent provided in the resolution,
shall have and may exercise all of the authority of the board of directors,
except that no such committee shall have the authority of the board of directors
in reference to amending the articles of incorporation, approving a plan of
merger or consolidation, recommending to the shareholders the sale, lease, or
exchange of all or substantially all of the property and assets of the
corporation otherwise than in the usual and regular course of its business,
recommending to the shareholders a voluntary dissolution of the corporation or a
revocation thereof, amending, altering, or repealing the by-laws of the
corporation or adopting new by-laws for the corporation, filling vacancies in
the board of directors or any committee, filling any directorship to be filled
by reason of an increase in the number of directors, electing or removing
officers or members of any committee, fixing the compensation of any member of a
committee, or altering or repealing any resolution of the board of directors
which by its terms provides that it shall not be so amendable or repealable;
and, unless the resolution expressly so provides, no committee shall have the
power or authority to declare a dividend or to authorize the issuance of shares
of the corporation.
<PAGE>
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these by-laws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these by-laws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
<PAGE>
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president and a secretary. The board of directors
may also elect or appoint such other officers, including assistant officers and
agents as may be deemed necessary.
Section 2. The board of directors at its first meeting after each annual
meeting of shareholders shall choose a president and a secretary neither of whom
need be a member of the board.
Section 3. The board of directors may also appoint such other officers
and agents as it shall deem necessary who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
<PAGE>
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, if there is one, or if there shall be
more than one, the vice-presidents in the order determined by the board of
directors, shall, in the absence or disability of the president, perform the
duties and exercise the powers of the president and shall perform such other
duties and have such other powers as the board of directors may from time to
time prescribe.
<PAGE>
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, if there is one, or if there be
more than one, the assistant secretaries in the order determined by the board of
directors, shall, in the absence or disability of the secretary, perform the
duties and exercise the powers of the secretary and shall perform such other
duties and have such other powers as the board of directors may from time to
time prescribe.
<PAGE>
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer, if there is one, shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, if there is one, or, if there shall
be more than one, the assistant treasurers in the order determined by the board
of directors, shall, in the absence or disability of the treasurer, perform the
duties and exercise the powers of the
<PAGE>
treasurer and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates signed by the president and secretary or such other officers as may
be elected or appointed, and may be sealed with the seal of the corporation or a
facsimile thereof.
When the corporation is authorized to issue shares of more than one
class there shall be set forth upon the face or back of the certificate, or the
certificate shall have a statement that the corporation will furnish to any
shareholder upon request and without charge, a full statement of the
designations, preferences, limitations and relative rights of the shares of each
class and, if the corporation is authorized to issue any preferred or special
class in series, the variations in the relative rights and preferences between
the shares of each such series so far as the same have been fixed and determined
and the authority of the board of directors to fix and determine the relative
rights and preferences of subsequent series. When the corporation is authorized
to issue shares of more than one class, every certificate shall also set forth
upon the face or the back of such certificate a statement that there is set
forth in the articles of incorporation on file in the office of the Secretary of
State a full statement of all the designations, preferences, limitations and
relative rights, including voting rights, of the shares of each class authorized
to be issued
<PAGE>
and the corporation will furnish a copy of such statement to the record holder
of the certificate without charge on written request to the corporation at its
principal place of business or registered office. Every certificate shall have
noted thereon any information required to be set forth by the Texas Business
Corporation Act and such information shall be set forth in the manner provided
in said Act.
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent, or registered by a registrar, other than the corporation itself or an
employee of the corporation. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
<PAGE>
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
CLOSING OF TRANSFER BOOKS
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders, or any adjournment thereof
or entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors may provide that the stock transfer books shall be closed for a stated
period but not to exceed, in any case, fifty days. If the stock transfer books
shall be closed for the purpose of determining shareholders entitled to notice
of or to vote at a meeting of shareholders, such books shall be closed for at
least ten days immediately preceding such meeting. In lieu of closing the stock
transfer books, the board of directors may fix in advance a date as the record
date for any such determination of shareholders, such date in any case to be not
more than fifty days and, in case of a meeting of shareholders, not less than
ten days prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken. If the stock transfer books are
<PAGE>
not closed and no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the board of directors
declaring such dividend is adopted, as the case may be, shall be the record date
for such determination of shareholders. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as provided in
this section, such determination shall apply to any adjournment thereof.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Texas.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the transfer books for
shares shall make, at least ten days before each meeting of shareholders, a
complete list of the shareholders entitled to vote at such meeting, arranged in
alphabetical order, with the
<PAGE>
address of each and the number of shares held by each, which list, for a period
of ten days prior to such meeting, shall be kept on file at the registered
office of the corporation and shall be subject to inspection by any shareholder
at any time during usual business hours. Such list shall also be produced and
kept open at the time and place of the meeting and shall be subject to the
inspection of any shareholder during the whole time of the meeting. The original
share ledger or transfer book, or a duplicate thereof, shall be prima facie
evidence as to who are the shareholders entitled to examine such list or share
ledger or transfer book or to vote at any meeting of the shareholders.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of the capital stock, subject to any provisions of the
articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the corpora-
<PAGE>
tion, and the directors may modify or abolish any such reserve in the manner in
which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time delegate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday of April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Texas". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
<PAGE>
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be altered, amended, or repealed or new
by-laws may be adopted by the affirmative vote of a majority of the board of
directors at any regular or special meeting of the board subject to repeal or
change at any regular or special meeting of shareholders at which a quorum is
present or represented, by the affirmative vote of a majority of the stock
entitled to vote, provided notice of the proposed repeal or change be contained
in the notice of such meeting.
<PAGE>
Exhibit 3.23
CERTIFICATE OF AMENDMENT AND RESTATEMENT
TO THE CERTIFICATE OF FORMATION
OF
COPENHAVER HOLDINGS, LLC
1. The name of the limited liability company is COPENHAVER HOLDINGS, LLC, which
was formed on April 9, 1998 under the original name of OFFICE CONNECTION, LLC.
2. The Certificate of Formation of the limited liability company is hereby
amended as follows:
FIRST: The name of the limited liability company formed hereby is US OFFICE
PRODUCTS, FLORIDA DISTRICT, LLC.
SECOND: The address of the company's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle. The name of the company's registered agent as such address
is The Corporation Trust Company.
THIRD: The purpose of the company is to engage in any lawful act or
activity for which a limited liability company may be organized
under the Delaware Limited Liability Company Act.
FOURTH: No member of the company shall be obligated personally for any
debt, obligation or liability of the company solely by reason of
being a member of the company. The failure to observe any
formalities relating to the business or affairs of the company
shall not be grounds for imposing personal liability on any member
for the debts, obligations or liabilities of the company.
FIFTH: The company reserves the right to amend or repeal any provision
contained herein in the manner now or hereafter prescribed by law.
3. This Certificate of Amendment and Restatement shall be effective on October
1, 1998.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment
and Restatement of Copenhaver Holdings, LLC this Twenty-Fifth day of September,
1998.
U.S. OFFICE PRODUCTS COMPANY,
Its Sole Member
By: /s/ Mark D. Director
---------------------------------------------
Mark D. Director
Executive Vice President - Administration
<PAGE>
Exhibit 3.24
OPERATING AGREEMENT OF
COPENHAVER HOLDINGS, LLC
A DELAWARE LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT (this "Agreement") of Copenhaver Holdings,
LLC, a Delaware limited liability company (the "Company"), is entered into as of
April 9, 1998 and shall constitute the "limited liability company agreement" of
the Company within the meaning of Section 18-101(7) of the Delaware Limited
Liability Company Act, Title 6, Delaware Corporations Code, Section 18-101 et
seq., as amended (the "Act").
1.1 Except as otherwise provided in this Agreement, the default
provisions of the Act shall apply to the Company.
1.2 U.S. Office Products Company, a Delaware corporation, shall be the
sole "member" of the Company within the meaning of Section 18-101(11) of the Act
(the "Member").
1.3 The Member hereby enters into and forms the Company as a limited
liability company in accordance with the Act. The name of the Company shall be
"Copenhaver Holdings, LLC."
1.4 The Company shall maintain a Delaware registered office and agent
for the service of process as required by the Act. In the event the registered
agent ceases to act as such for any reason or the registered office shall
change, the Member shall promptly designate a replacement registered agent or
file a notice of change of address, as the case may be.
1.5 The purpose and scope of the Company shall be to engage in any
lawful act or activities as shall be determined by the Member in its sole and
absolute discretion.
1.6 The term (the "Term") of the Company shall begin as of the date of
filing of the Certificate of Formation for the Company in accordance with
Section 18-201 of the Act and shall continue until dissolved by the Member in
its sole and absolute discretion. Except as specifically provided in this
Section 1.6, the Company shall not be dissolved prior to the end of its Term.
1.7 Title to all Company property shall be held in the name of the
Company; provided, however, that the Company shall make such distributions of
cash and/or property to the Member from time to time as the Member shall
determine in its sole and absolute discretion.
1.8 Except as otherwise required by applicable law, the Member shall
have no personal liability for the debts and obligations of the Company.
1
<PAGE>
1.9 The Member shall have no obligation to make any contributions to
the capital of the Company and shall make only such contributions as the Member
shall determine in its sole and absolute discretion.
1.10 The Member shall have no obligation to provide any services to the
Company and shall provide only such services as the Member shall determine in
its sole and absolute discretion.
1.11 The Company shall indemnify the Member to the fullest extent
permitted by law.
1.12 Pursuant to Sections 18-402 and 18-407 of the Act, the Member
shall delegate the management and operation of the Company to John M. Frisk,
Rudy Nesladek, Kathleen M. Delaney, and Mark D. Director who shall act as
managers of the Company. John M. Frisk shall hold the office of President of the
Company, Rudy Nesladek shall hold the offices of Treasurer and Secretary of the
Company, Kathleen M. Delaney shall hold the office of Vice-President of the
Company, and Mark D. Director shall hold the offices of Vice-President and
Assistant Secretary of the Company, each to serve until his successor is duly
elected and qualified. Notwithstanding any provision of this Agreement to the
contrary, any contract, agreement, deed, lease, note or other document or
instrument executed on behalf of the Company by the Member or managers shall be
deemed to have been duly executed and third parties shall be entitled to rely
upon the Member's and/or managers' power to bind the Company without otherwise
ascertaining that the requirements of this Agreement have been satisfied.
1.13 The "Copenhaver Holdings" name and mark are the property of the
Member. The Company's authority to use such names and marks may be withdrawn by
the Member at any time without compensation to the Company. Following the
dissolution and liquidation of the Company, all right, title and interest in and
to such names and marks shall be held solely by the Member.
1.14 The interpretation and enforceability of this Agreement and the
rights and liabilities of the Member as such shall be governed by the laws of
the State of Delaware as such laws are applied in connection with limited
liability company operating agreements entered into and wholly performed upon in
Delaware by residents of Delaware. To the extent permitted by the Act and other
applicable law, the provisions of this Agreement shall supersede any contrary
provisions of the Act or other applicable law.
1.15 In the event any provision of this Agreement is determined to be
invalid or unenforceable, such provision shall be deemed severed from the
remainder of this Agreement and replaced with a valid and enforceable provision
as similar in intent as reasonably possible to the provision so severed, and
shall not cause the invalidity or unenforceability of the remainder of this
Agreement.
1.16 This Agreement may be amended, in whole or in part, only through a
written amendment executed by the Member.
2
<PAGE>
1.17 This Agreement contains the entire understanding and intent of the
Member regarding the Company and supersedes any prior written or oral agreement
respecting the Company. There are no representations, agreements, arrangements,
or understandings, oral or written, of the Member relating to the Company which
are not fully expressed in this Agreement.
IN WITNESS WHEREOF, the Member has executed this Agreement as of the
date first above written.
U.S. OFFICE PRODUCTS COMPANY,
Sole Member
- -------------------------------
Mark D. Director
Executive Vice President - Administration
and General Counsel
3
<PAGE>
Exhibit 3.25
ARTICLES OF AMENDMENT AND RESTATEMENT
TO THE ARTICLES OF INCORPORATION
OF
COURTLAND-CAIN, INC.
To the Secretary of State:
Pursuant to the provisions of the Georgia Business Corporation Code,
Section 14-2-1006, the undersigned corporation hereby amends and restates its
Articles of Incorporation, and for that purpose, submits the following
statement:
(1) The name of the corporation is: Courtland-Cain, Inc.
(2) The articles of incorporation are amended and restated in their
entirety as follows:
FIRST: The name of the corporation is Courtland-Cain, Inc.
SECOND: The number of shares the corporation is authorized to
issue is 1,000 shares of Common Stock, with no par value per
share.
THIRD: The street address of the registered office of the
corporation is 1201 Peachtree Street, NE, Atlanta, Fulton
County, Georgia 30361, and the registered agent at the above
listed address is C T Corporation System.
FOURTH: The mailing address of the principal office of the
corporation is 6670 C. Corners Industrial Court, Norcross,
Georgia 30092.
FIFTH: The duration of the corporation is perpetual.
SIXTH: The purpose of the corporation is to engage in all
businesses as may be approved by the corporation's Board of
Directors and permitted by the laws of the state of Georgia.
(3) The manner of implementation of any exchange, reclassification, or
cancellation of issued shares is as follows: Upon the effectiveness
of this amendment, the 91,000 shares of Common Stock, par value $1.00
per share (the "Old Stock"), of the corporation that are issued and
outstanding shall be converted into 1,000 issued shares of Common
Stock, no par value per share, of the corporation (the "New Stock"),
on the basis of one share of New Stock for each 91 shares of Old
Stock. Upon the effectiveness of this amendment, holders of issued
shares of
<PAGE>
the Old Stock, upon surrendering certificates evidencing the issued
shares of Old Stock for cancellation, shall be entitled to receive
certificates for shares of the New Stock on the basis set forth
above.
(4) The amendment was duly adopted on September 25, 1998 by the
shareholders in accordance with the provisions of Code Section
14-2-1003.
(5) If the amendment is not to be effective when these articles are filed
by the Secretary of State, the date it will be effective is October
1, 1998.
The corporation certifies that a notice of Intent to file Articles of
Amendment to change name of corporation and a publishing fee of $40.00 have been
mailed or delivered to an authorized newspaper, as required by law.
Courtland-Cain, Inc.
/s/ Mark D. Director
-------------------------------------------
Mark D. Director, Vice President
Dated: September 25, 1998
<PAGE>
Exhibit 3.26
COURTLAND-CAIN, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section l. The registered office shall be located in Atlanta, Georgia.
Section 2. The corporation may also have offices at such other places
both within and without the State of Georgia as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section l. All meetings of shareholders for the election of directors
shall be held in Norcross, State of Georgia, at such place as may be fixed from
time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect, pursuant to law, a board of directors, and transact such other business
as may properly be brought before the meeting.
<PAGE>
Section 3. Written or printed notice of the annual meeting, stating the
date, time, and place of the meeting, shall be delivered not less than ten (10)
days nor more than sixty (60) days before the date of the meeting, either
personally or by mail, by or at the direction of the president, the secretary,
or the officer or persons calling the meeting, to each shareholder of record
entitled to vote at such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section l. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Georgia as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the charter, may be
called by the president, the board of directors, such other officers or persons
provided in the articles of incorporation, or upon written demand of at least
twenty-five percent (25%) of all of the votes entitled to be cast on any issue
proposed to be considered.
Section 3. Written or printed notice of a special meeting stating the
date, time, and place of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than ten (10) days nor more than
sixty (60) days before the date of the meeting, either personally or by mail, by
or at the direction of the president, the secretary, or the officer or persons
calling the meeting, to each shareholder of record entitled to vote at such
meeting.
<PAGE>
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section l. A majority of the votes entitled to be cast on a matter by a
voting group constitutes a quorum of the voting group for action on that matter,
except as otherwise provided by statute or by the charter. If, however, such
quorum shall not be present or represented at any meeting of the shareholders,
the shareholders present in person or represented by proxy shall have 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 such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 2. If a quorum is present, action on a matter by a voting group
is approved if the votes cast within the voting group favoring the action exceed
the votes cast opposing the action, unless the vote of a greater number of
affirmative votes is required by law or the articles of incorporation.
Section 3. Each outstanding share, regardless of class, shall be
entitled to one vote on each matter voted on at a meeting of shareholders unless
the articles of incorporation or law provides otherwise. A shareholder may vote
either in person or by proxy as provided for in a signed appointment form
executed by the shareholder or by his duly authorized attorney-in-fact.
<PAGE>
Section 4. Any action required or permitted to be taken at a meeting of
the shareholders may be taken without a meeting (1) if one or more written
consents setting forth the action so taken shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof, or (2)
if so provided in the articles of incorporation, by persons who would be
entitled to vote at a meeting shares having voting power to cast not less than
the minimum number (or numbers, in the case of voting groups) of votes that
would be necessary to authorize or take the action at a meeting at which all the
shareholders entitled to vote were present and voted.
ARTICLE V
DIRECTORS
Section l. The number of directors shall be three. Unless the articles
of incorporation otherwise provide, directors need not be residents of the State
of Georgia nor shareholders of the corporation. The directors, other than the
first board of directors, shall be elected at the annual meeting of the
shareholders, and each director elected shall serve until the next succeeding
annual meeting and until his successor shall have been elected and qualified.
The first board of directors shall hold office until the first meeting of
shareholders.
Section 2. Unless the articles of incorporation provide otherwise, any
vacancy occurring on the board of directors, including a vacancy resulting from
an increase in the number of directors, may be filled by the shareholders, the
board of directors, or if the directors remaining in office constitute fewer
than a quorum of the board, the vacancy may be filled by the affirmative vote of
a majority of the directors remaining in office.
<PAGE>
Section 3. The business affairs of the corporation shall be managed by
its 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, by the articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Georgia, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for services to the corporation as directors, officers or
otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section l. Meetings of the board of directors, regular or special, may
be held either within or without the State of Georgia.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting or it may convene at such place and time as
shall be fixed by the consent in writing of all the directors. No notice of such
meeting shall be necessary to the newly elected directors in order to legally
constitute the meeting, provided a quorum shall be present.
<PAGE>
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called on
two days' notice to each director, either personally, by mail or by telegram.
Section 5. Attendance or participation of a director at any meeting
shall constitute a waiver of notice of such meeting, unless the director, at the
beginning of the meeting (or promptly upon his arrival), objects to holding the
meeting or transacting business at the meeting, and does not thereafter vote for
or assent to action taken at the meeting. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the board of directors
need be specified in the notice or waiver of the notice of such meeting.
Section 6. No of the directors shall constitute a quorum for the
transaction of business, unless a greater number is required by law or by the
articles of incorporation. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
unless the act of a greater number is required by statute or by the articles of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting from time to time until a
quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if one or more written consents,
setting forth the action so taken, shall be signed by all of the directors
entitled to vote with respect to the subject matter thereof.
<PAGE>
ARTICLE VII
COMMITTEES
Section l. The board of directors may create one (1) or more committees
that may consist of one (1) or more members of the board. Committee members
shall serve at the board of directors' pleasure. To the extent specified by the
board of directors or articles of incorporation, each committee shall have and
exercise all of the authority of the board of directors in the management of the
corporation, except as otherwise provided by law.
ARTICLE VIII
NOTICES
Section l. Whenever notice is required to be given to any director or
shareholder under the provisions of the statutes, the articles of incorporation
or these by-laws, it shall be construed to mean written notice, which may be by
mail, addressed to such director or shareholder, at his address as it appears on
the records of the corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time it is deposited in the United States
mail. Notice to directors may also be given by telegram.
Section 2. Whenever notice is required to be given under the provisions
of the statutes, the articles of incorporation or these by-laws, a waiver
thereof, in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice.
<PAGE>
ARTICLE IX
OFFICERS
Section l. The officers of the corporation shall be chosen by the board
of directors, and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
Section 2. The board of directors, at its first meeting after each
annual meeting of shareholders, shall choose a president, one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member of
the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
THE PRESIDENT
<PAGE>
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed, and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders, and shall record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose, and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of
<PAGE>
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation, and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it, and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary, and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities, and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation, and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
<PAGE>
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control, belonging to the corporation.
Section 14. The assistant treasurer or, if there shall be more than one,
the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer, and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates or shall be uncertificated. Each share certificate shall be signed
by the president or a vice-president and the secretary or treasurer or an
assistant secretary or treasurer of the corporation, or by the board of
directors, and may be sealed with the seal of the corporation or a facsimile
thereof.
When the corporation is authorized to issue different classes of shares
or different series within a class, there shall be set forth upon the face or
back of the certificate, or the certificate shall have a statement that the
corporation will furnish to any shareholder upon request and without charge, a
full statement of the designations, preferences, limitations, and relative
rights applicable to each class, and the variations in the relative rights,
preferences, and limitations determined for
<PAGE>
each series and the authority of the board of directors to fix and determine the
relative rights and preferences of subsequent series.
Section 2. The signatures of the persons signing a share certificate may
be facsimiles. In case any person who has signed, or whose facsimile signature
has been placed upon such certificate, shall have ceased to hold such office
before such certificate is issued, the certificate is nevertheless valid.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation, which
is alleged to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender, to the corporation or the transfer agent of
the corporation, of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto,
<PAGE>
and the old certificate shall be cancelled and the transaction recorded upon the
books of the corporation.
<PAGE>
FIXING RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of, or to vote at, any meeting of shareholders, or any adjournment
thereof, or entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors may fix a record date, in advance, that may not be more than seventy
(70) days before the meeting or action requiring a determination of
shareholders.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize a person,
registered on its books as the owner of shares, as having the exclusive right to
receive dividends and to vote with respect to shares shown to be owned, and as
being exclusively liable for calls and assessments upon shares shown to be
owned, and the corporation shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Georgia.
LIST OF SHAREHOLDERS
Section 7. A list of shareholders as of the record date, prepared in
alphabetical order, arranged by voting group, showing the address of and the
number of shares held by each
<PAGE>
shareholder, and certified by the corporate officer responsible for its
preparation or the transfer agent, shall be open for inspection at any meeting
of shareholders.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the law and any applicable provisions of the
articles of incorporation, dividends may be declared by the board of directors
at any regular or special meeting, and may be paid in cash, in property or in
shares of the corporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends, such sum or sums as the
directors from time to time, in their absolute discretion, think proper, as a
reserve fund to meet contingencies, for equalizing dividends, for repairing or
maintaining any property of the corporation, or for such other purpose as the
directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
CHECKS
Section 3. All checks or demands for money, and notes of the
corporation, shall be signed by such officer or officers, or such other person
or persons as the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Georgia". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be amended or repealed, or new by-laws may
be adopted, by the affirmative vote of a majority of the board of directors at
any regular or special meeting of the board unless the articles of incorporation
or law reserve this power to the shareholders.
<PAGE>
Exhibit 3.27
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
DAMERON-PIERSON COMPANY, LIMITED
DAMERON-PIERSON COMPANY, LIMITED, a corporation organized and existing
under the laws of the State of Louisiana, hereby certifies as follows:
1. The name of the corporation is DAMERON-PIERSON COMPANY,
LIMITED. Its registered office is in the parish of Orleans.
The date of incorporation was July 24, 1912.
The date of the amendment and restatement of the Articles of
Incorporation was September 25, 1998.
2. These Amended and Restated Articles of Incorporation amend and
restate the Articles of Incorporation in their entirety. Each
amendment has been effected in conformity with Louisiana Law.
3. The text of the Articles of Incorporation as amended and
restated heretofore reads as herein set forth in full:
1. The name of this corporation is US OFFICE PRODUCTS,
LOUISIANA DISTRICT, INC.
2. This corporation is formed for the purpose of engaging in
any lawful activity for which corporations may be formed.
3. The duration of this corporation is perpetual.
4. The aggregate number of shares which the corporation shall
have authority to issue is 1,000 shares of Common Stock.
5. The shares shall consist of one class only and are without
par value.
6. The corporation's federal tax identification number is
72-0165110.
4. These Amended and Restated Articles of Incorporation were duly
authorized by the board of directors in accordance with R.S.
12:34, La. Rev. Stats., 1950.
<PAGE>
5. As authorized by the Articles of Incorporation of this
corporation and by R.S. 12:33 (A), La. Rev. Stats., 1950;
any amendment herein set forth was adopted by the Board of
Directors of this corporation.
IN WITNESS WHEREOF, this instrument has been signed on behalf of
DAMERON-PIERSON COMPANY, LIMITED by its Vice President and Secretary on this
Twenty-Fifth day of September, 1998.
DAMERON-PIERSON COMPANY, LIMITED
By: /s/ Kathleen M. Delaney
-------------------------------------------
Vice President
By: /s/ Mark D. Director
-------------------------------------------
Secretary
<PAGE>
STATE OF DISTRICT OF
COUNTY OF COLUMBIA
BE IT KNOWN that on this 28th day of September, 1998, before me the
undersigned, a Notary Public in and for the County and State aforesaid, duly
commissioned and qualified, there came and appeared Kathleen M. Delaney, known
to me, Notary, and known by me to be the Vice President of Dameron-Pierson
Company, Limited who signed the within and foregoing instrument before me and
who acknowledged to me, Notary, that she signed, executed, and delivered said
instrument in her capacity as Vice President of Dameron-Pierson Company, Limited
for the uses and purposes therein set forth and apparent.
IN WITNESS WHEREOF the said appearer has signed these presents and I
have hereunto affixed my official hand and seal, on the day and date first
herein above written, after due reading of the whole.
/s/ Scarlett Bates
-----------------------------------------
Scarlett Bates
- ----------------------------
NOTARY PUBLIC
STATE OF DISTRICT OF
COUNTY OF COLUMBIA
BE IT KNOWN that on this 28th day of September, 1998, before me the
undersigned, a Notary Public in and for the County and State aforesaid, duly
commissioned and qualified, there came and appeared Mark D. Director, known to
me, Notary, and known by me to be the Secretary of Dameron-Pierson Company,
Limited who signed the within and foregoing instrument before me and who
acknowledged to me, Notary, that he signed, executed, and delivered said
instrument in his capacity as Secretary of Dameron-Pierson Company, Limited for
the uses and purposes therein set forth and apparent.
IN WITNESS WHEREOF the said appearer has signed these presents and I
have hereunto affixed my official hand and seal, on the day and date first
herein above written, after due reading of the whole.
/s/ Scarlett Bates
------------------------------------------
Scarlett Bates
- ----------------------------
NOTARY PUBLIC
<PAGE>
Exhibit 3.28
US OFFICE PRODUCTS, LOUISIANA DISTRICT, INC.
* * * * *
BY-LAWS
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in New Orleans,
Louisiana.
Section 2. The corporation may also have offices at such other places
both within and without the State of Louisiana as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in New Orleans, State of Louisiana, at such place as may be fixed
from time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held during the last week of June at 10:00 a.m., at which they
shall elect by a plurality vote a board of directors, and transact such other
business as may properly be brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be delivered not less than 10 nor more
than 60 days before the date of the meeting, either personally or by mail, by or
at the direction of the president, or the secretary, or the officer or persons
calling the meeting, to each shareholder of record entitled to vote at such
meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Louisiana as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
1
<PAGE>
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president, the board of directors, or the
holders of not less than [[spec meeting]] of all the shares entitled to vote at
the meeting.
Section 3. Written or printed notice of a special meeting stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than 10 nor more than 60 days
before the date of the meeting, either personally or by mail, by or at the
direction of the president, or the secretary, or the officer or persons calling
the meeting, to each shareholder of record entitled to vote at such meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified. In the case of any meeting
called for the election of directors, those who attend the second of such
adjourned meetings, although less than a quorum as fixed herein, shall
nevertheless constitute a quorum for the purpose of electing directors.
Section 2. If a quorum is present, the affirmative vote of a majority
of the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Section 4. Any action required to be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed
2
<PAGE>
by all of the shareholders entitled to vote with respect to the subject matter
thereof. If the articles of incorporation provide that a consent may be signed
by fewer than all of the shareholders having voting power on any question, then
the consent need be signed only by shareholders holding that proportion of the
total voting power on the question which is required by the articles of
incorporation or by law, whichever requirement is higher. The consent, together
with a certificate by the secretary of the corporation to the effect that the
subscribers to the consent constitute all or the required proportion of the
shareholders entitled to vote on the particular question, shall be filed with
the records of proceedings of the shareholders. If the consent is signed by
fewer than all of the shareholders having voting power on the question, prompt
notice shall be given to all of the shareholders of the action taken pursuant to
the consent.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be three. Directors need not
be residents of the State of Louisiana nor shareholders of the corporation. The
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the number of directors may be filled by election at an annual
meeting or at a special meeting of shareholders called for that purpose. A
director elected to fill a vacancy, or a newly created directorship, shall hold
office until the next succeeding annual meeting of shareholders and until his
successor shall have been elected and qualified. In addition vacancies and newly
created directorships resulting from any increase in the number of directors may
be filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Louisiana, at such place or places as they may from time to time determine.
3
<PAGE>
Section 5. The board of directors, by the affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Louisiana.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 10 days' notice to each director, either personally or by mail
or by telegram; special meetings shall be called by the president or secretary
in like manner and on like notice on the written request of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
Section 6. A majority of the directors shall constitute a quorum for
the transaction of business unless a greater number is required by law or by the
articles of incorporation. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
unless the act of a greater number is required by statute or by the articles of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be
4
<PAGE>
signed by all of the directors entitled to vote with respect to the subject
matter thereof. Section 8. Unless otherwise restricted by the articles of
incorporation or these by-laws, members of the board of directors may
participate in a meeting of the board of directors, by means of conference
telephone or similar communications equipment provided all persons participating
in the meeting can hear and communicate with each other, and such participation
in a meeting shall constitute presence in person at the meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the grounds that the meeting is not lawfully
called or convened.
PROXY VOTE BY DIRECTORS
Section 9. Any director absent from a meeting may be represented by any
other director or shareholder, who may cast the vote of the absent director
according to the written instructions, general or special, or said absent
director, filed with the secretary.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the by-laws or otherwise, may designate two
or more directors to constitute an executive committee, which committee, to the
extent provided in such resolution, shall have and exercise all of the authority
of the board of directors in the management of the corporation, except as
otherwise required by law. Vacancies in the membership of the committee shall be
filled by the board of directors at a regular or special meeting of the board of
directors. The executive committee shall keep regular minutes of its proceedings
and report the same to the board when required.
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these by-laws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
5
<PAGE>
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these by-laws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
Section 2. The board of directors at its first meeting after each
annual meeting of share holders shall choose a president, one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member of
the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
6
<PAGE>
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so
7
<PAGE>
requires, an account of all his transactions as treasurer and of the financial
condition of the corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be resented by
certificates signed by the president or a vice-president and the secretary or an
assistant secretary of the corporation, and may be sealed with the seal of the
corporation or a facsimile thereof.
When the corporation is authorized to issue shares of more than one
class there shall be set forth upon the face or back of the certificate, or the
certificate shall have a statement that the corporation will furnish to any
shareholder upon request and without charge, a full or summary statement of the
designations, preferences, limitations, and relative rights of the shares of
each class authorized to be issued and, if the corporation is authorized to
issue any preferred or special class in series, the variations in the relative
rights and preferences between the shares of each such series so far as the same
have been fixed and determined and the authority of the board of directors to
fix and determine the relative rights and preferences of subsequent series.
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent, or registered by a registrar, other than the corporation itself or an
employee of the corporation. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
8
<PAGE>
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate canceled and the transaction recorded upon the books of the
corporation.
FIXING RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of and to vote at a meeting, or to receive a dividend, or to receive or
exercise subscription or other rights, or to participate in a reclassification
of stock, or in order to make a determination of shareholders for any other
proper purpose, the board of directors may fix in advance a record date for
determination of shareholders for such purpose, such date to be not more than
sixty days and, if fixed for the purpose of determining shareholders entitled to
notice of and to vote at a meeting, not less than ten days, prior to the date on
which the action requiring the determination of shareholders is to be taken.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Louisiana.
9
<PAGE>
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of the capital stock, subject to any provisions of the
articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be the last
Saturday in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Louisiana". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
10
<PAGE>
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be altered, amended, or repealed or new
by-laws may be adopted by the affirmative vote of a majority of the board of
directors at any regular or special meeting of the board. The shareholders shall
have the right to change or repeal any by-laws adopted by the directors.
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted at any regular or special meeting of shareholders at
which a quorum is present or represented, by the affirmative vote of a majority
of the stock entitled to vote, provided notice of the proposed alteration,
amendment or repeal be contained in the notice of such meeting.
11
<PAGE>
Exhibit 3.29
ARTICLES OF AMENDMENT BY
SHAREHOLDERS TO THE ARTICLES OF INCORPORATION
OF DULWORTH OFFICE FURNITURE COMPANY
To the Secretary of State:
Pursuant to the provisions of Chapter 271B of the Kentucky Revised
Statutes, the undersigned corporation hereby amends its Articles of
Incorporation, and for that purpose, submits the following statement:
1. The name of the corporation is Dulworth Office Furniture Company.
2. On September 25, 1998, the corporation adopted the following amendment(s) of
its Articles of Incorporation:
See attached.
3. If not contained in the amendment itself, the manner in which any exchange,
reclassification, or cancellation of issued shares provided for in the
amendment shall be implemented as follows: Upon the effectiveness of this
amendment, the 100 shares of Common Stock, no par value per share of the
Corporation (the "Old Stock"), that are issued and outstanding shall be
converted into 1,000 issued shares of Common Stock, no par value per share,
of the Corporation (the "New Stock"), on the basis of ten shares of New
Stock for each share of Old Stock. Upon the effectiveness of this amendment,
holders of issued shares of the Old Stock, upon surrendering certificates
evidencing the issued shares of Old Stock for cancellation, shall be
entitled to receive certificates for shares of the New Stock on the basis
set forth above.
4. The amendment(s) were adopted by shareholder action. At the date of
adoption of the amendment, the number of outstanding shares of each voting
group entitled to vote separately on the amendment, and the vote of such
shares was:
<TABLE>
<CAPTION>
VOTING NUMBER OF NUMBER NUMBER OF NUMBER OF NUMBER OF
GROUP VOTES OF VOTES UNDISPUTED UNDISPUTED
OUTSTANDING ENTITLED REPRESENTED SHARES SHARES
TO BE AT THE VOTED FOR VOTED AGAINST
CAST MEETING
- ---------- --------------- --------------- ------------------ ---------------- ------------------
<S> <C> <C> <C> <C> <C>
Common Stock 100 100 100 100 0
--------------- --------------- ------------------ ---------------- ------------------
</TABLE>
<PAGE>
5. If the amendment is not to be effective when these articles are filed by
the Secretary of State, the date it will be effective is October 1, 1998.
Dated September 25, 1998
Dulworth Office Furniture Company
By: /s/ Kathleen M. Delaney
------------------------------------
Kathleen M. Delaney, Vice President
<PAGE>
1. Article III is hereby amended and reads as follows:
"The purpose of the corporation is to engage in any activity or
transaction which is legal under the laws of Kentucky and to have and
exercise all powers as may be lawful under the laws of the State of
Kentucky."
2. Article IV is hereby amended and reads as follows:
"The number of shares the corporation is authorized to issue is: 1,000
shares, all of which shall be common stock of the same class and shall
be without par value, and shall be entitled to one vote per share."
<PAGE>
Exhibit 3.30
DULWORTH OFFICE FURNITURE COMPANY
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in Louisville,
Kentucky.
Section 2. The corporation may also have offices at such other places
both within and without the State of Kentucky as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in Louisville, State of Kentucky, at such place as may be fixed
from time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect, pursuant to law, a
<PAGE>
board of directors, and transact such other business as may properly be brought
before the meeting.
Section 3. Written or printed notice of the annual meeting, stating the
date, time, and place of the meeting, shall be delivered not less than ten (10)
days nor more than sixty (60) days before the date of the meeting, either
personally or by mail, by or at the direction of the president, the secretary,
or the officer or persons calling the meeting, to each shareholder of record
entitled to vote at such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Kentucky as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the charter, may be
called by the president, the board of directors, or upon written demand of at
least thirty-three and one-third percent (33 1/3%) of all of the votes entitled
to be cast on any issue proposed to be considered.
Section 3. Written or printed notice of a special meeting stating the
date, time, and place of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than ten (10) days nor more than
sixty (60) days before the date of the meeting,
<PAGE>
either personally or by mail, by or at the direction of the president, the
secretary, or the officer or persons calling the meeting, to each shareholder of
record entitled to vote at such meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. A majority of the votes entitled to be cast on a matter by a
voting group constitutes a quorum of the voting group for action on that matter,
except as otherwise provided by statute or by the charter. If, however, such
quorum shall not be present or represented at any meeting of the shareholders,
the shareholders present in person or represented by proxy shall have 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 such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 2. If a quorum is present, action on a matter by a voting group
is approved if the votes cast within the voting group favoring the action exceed
the votes cast opposing the action, unless the vote of a greater number of
affirmative votes is required by law or the charter.
Section 3. Each outstanding share, regardless of class, shall be
entitled to one vote on each matter submitted to a vote at a meeting of
shareholders unless the charter or law
<PAGE>
provides otherwise. A shareholder may vote either in person or by proxy executed
in writing by the shareholder or by his duly authorized attorney-in-fact.
Each shareholder having voting power shall be entitled to cumulate his
votes in the election of directors.
Section 4. Any action required or permitted to be taken at a meeting of
the shareholders may be taken without a meeting, if one or more written consents
setting forth the action so taken shall be signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Unless the charter
otherwise provides, directors need not be residents of the State of Kentucky nor
shareholders of the corporation. The directors, other than the first board of
directors, shall be elected at the annual meeting of the shareholders, and each
director elected shall serve until the next succeeding annual meeting and until
his successor shall have been elected and qualified. The first board of
directors shall hold office until the first meeting of shareholders.
Section 2. Unless the charter provides otherwise, any vacancy occurring
in the board of directors, including a vacancy resulting from an increase in the
number of directors, may be filled by the shareholders, the board of directors,
or if the directors remaining in office
<PAGE>
constitute fewer than a quorum of the board, the vacancy may be filled by the
affirmative vote of a majority of the directors remaining in office.
Section 3. The business affairs of the corporation shall be managed by
its 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, by the charter or
by these by-laws directed or required to be exercised or done by the
shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Kentucky, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Kentucky.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting or it may convene at such place and time as
shall be fixed by the consent in writing of all the
<PAGE>
directors. No notice of such meeting shall be necessary to the newly elected
directors in order to legally constitute the meeting, provided a quorum shall be
present.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called on
2 days' notice to each director, either personally, by mail or by telegram.
Section 5. Attendance or participation of a director at any meeting
shall constitute a waiver of notice of such meeting, unless the director, at the
beginning of the meeting (or promptly upon his arrival), objects to holding the
meeting or transacting business at the meeting, and does not thereafter vote for
or assent to action taken at the meeting. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the board of directors
need be specified in the notice or waiver of the notice of such meeting.
Section 6. A majority of the directors shall constitute a quorum for
the transaction of business, unless a greater number is required by law or by
the charter. The act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the board of directors, unless the
act of a greater number is required by statute or by the charter. If a quorum
shall not be present at any meeting of directors, the directors present thereat
may adjourn the meeting from time to time until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if one or more written consents,
setting forth the action
<PAGE>
so taken, shall be signed by all of the directors entitled to vote with respect
to the subject matter thereof.
ARTICLE VII
COMMITTEES
Section 1. The board of directors may create one (1) or more committees
that may consist of two (2) or more members of the board. Committee members
shall serve at the board of directors' pleasure. To the extent specified by the
board of directors or charter, each committee shall have and exercise all of the
authority of the board of directors in the management of the corporation, except
as otherwise provided by law.
ARTICLE VIII
NOTICES
Section 1. Whenever notice is required to be given to any director or
shareholder under the provisions of the statutes, the charter or these by-laws,
it shall be construed to mean written notice, which may be by mail, addressed to
such director or shareholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time it is deposited in the United States mail. Notice to directors
may also be given by telegram.
<PAGE>
Section 2. Whenever notice is required to be given under the provisions
of the statutes, the charter or these by-laws, a waiver thereof, in writing,
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of such
notice.
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors, and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
Section 2. The board of directors, at its first meeting after each
annual meeting of shareholders, shall choose a president, one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member of
the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be
<PAGE>
removed at any time by the affirmative vote of a majority of the board of
directors. Any vacancy occurring in any office of the corporation shall be
filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed, and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
<PAGE>
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders, and shall record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose, and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the shareholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation, and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring
it, and when so affixed, it may be attested by his signature or by the signature
of such assistant secretary. The board of directors may give general authority
to any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary, and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
<PAGE>
Section 11. The treasurer shall have the custody of the corporate funds
and securities, and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation, and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control, belonging to the corporation.
Section 14. The assistant treasurer or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer, and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
<PAGE>
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates or shall be uncertificated. Each share certificate shall be signed
by the president or a vice-president and the secretary or treasurer or an
assistant secretary or treasurer of the corporation, or by the board of
directors, and may be sealed with the seal of the corporation or a facsimile
thereof.
When the corporation is authorized to issue different classes of shares
or different series within a class, there shall be set forth upon the face or
back of the certificate, or the certificate shall have a statement that the
corporation will furnish to any shareholder upon request and without charge, a
full statement of the designations, preferences, limitations, and relative
rights applicable to each class, and the variations in the relative rights,
preferences, and limitations determined for each series and the authority of the
board of directors to fix and determine the relative rights and preferences of
subsequent series.
Section 2. The signatures of the persons signing a share certificate
may be facsimiles. In case any person who has signed, or whose facsimile
signature has been placed upon such certificate, shall have ceased to hold such
office before such certificate is issued, the certificate is nevertheless valid.
LOST CERTIFICATES
<PAGE>
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation, which
is alleged to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender, to the corporation or the transfer agent of
the corporation, of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate shall be cancelled and the transaction recorded upon the
books of the corporation.
FIXING RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of, or to vote at, any meeting of shareholders, or any adjournment
thereof, or entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper
<PAGE>
purpose, the board of directors may fix a record date, in advance, that may not
be more than seventy (70) days before the meeting or action requiring a
determination of shareholders.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize a person,
registered on its books as the owner of shares, as having the exclusive right to
receive dividends and to vote with respect to shares shown to be owned, and as
being exclusively liable for calls and assessments upon shares shown to be
owned, and the corporation shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Kentucky.
LIST OF SHAREHOLDERS
Section 7. A list of shareholders as of the record date, certified by
the corporate officer responsible for its preparation or the transfer agent,
shall be open for inspection at any meeting of shareholders.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
<PAGE>
Section 1. Subject to the law and any applicable provisions of the
charter, dividends may be declared by the board of directors at any regular or
special meeting, and may be paid in cash, in property or in shares of the
corporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends, such sum or sums as the
directors from time to time, in their absolute discretion, think proper, as a
reserve fund to meet contingencies, for equalizing dividends, for repairing or
maintaining any property of the corporation, or for such other purpose as the
directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
CHECKS
Section 3. All checks or demands for money, and notes of the
corporation, shall be signed by such officer or officers, or such other person
or persons as the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Kentucky". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be amended or repealed, or new by-laws may
be adopted, by the affirmative vote of a majority of the board of directors at
any regular or special meeting of the board unless the charter or law reserve
this power to the shareholders.
<PAGE>
Exhibit 3.31
EXPERT OFFICE SERVICES, INC.
ARTICLES OF AMENDMENT AND RESTATEMENT
(Under Section 2-609 of Corporations and Associations Article)
EXPERT OFFICE SERVICES, INC., a Maryland corporation, having its principal
office in Baltimore, Maryland and having The Corporation Trust Incorporated as
its resident agent located at 300 East Lombard Street, Baltimore, Maryland 21202
(hereinafter called the Corporation), hereby certifies to the State Department
of Assessments and Taxation of Maryland, that: The charter of the corporation is
hereby amended and restated in its entirety to read as follows:
First: The name of the corporation is Expert Office Services, Inc.
Second: The purposes for which the corporation is formed are as
follows:
A. To purchase, hold in inventory, and sell, lease or
otherwise transfer office products, furniture and
equipment and to render related products and services.
B. To engage in and perform any activities or functions which
may lawfully be performed by a business corporation
organized under the laws of the State of Maryland.
C. The foregoing enumerated purposes shall be in no way
limited or restricted by reference to, or inference from,
the terms of any other clause of this or any other Article
of the Charter of the Corporation, and they are intended
to be and shall be construed as powers as well as purposes
of the Corporation and shall be in addition to and not in
limitation of the general powers of corporations under the
general laws of the State of Maryland.
Third: The post office address of the principal office of the
corporation in Maryland is 11850 Baltimore Avenue, Suite H,
Beltsville, Maryland 20705.
Fourth: The name and post office address of the resident agent of the
corporation in Maryland are The Corporation Trust Incorporated,
300 East Lombard Street, Baltimore, Maryland 21202.
Fifth: The corporation has authority to issue 1,000 shares with no par
value per share.
Sixth: The current directors are Mark D. Director, Chuck Knapp and Jay
L. Mutschler.
Seventh: The number of directors of the corporation shall be (3) which
number may be increased or decreased pursuant to the bylaws of
the corporation, and so long as there are less than three (3)
stockholders, the number of directors may be less than
<PAGE>
three (3) but not less than the number of stockholders.
SECOND: The board of directors of the corporation by a unanimous
written consent on September 25, 1998, adopted a resolution in
which was set forth the foregoing amendment to the charter,
declaring that the said amendment and restatement of the
charter was advisable and directing that it be submitted for
action thereon by the stockholders.
THIRD: The amendment and restatement of the charter of the
corporation as hereinabove set forth was approved by a consent
in writing setting forth said amendment and restatement of the
charter, signed by all the stockholders entitled to vote on
said amendment, and all the other stockholders entitled to
notice of a meeting of stockholders but not to vote thereat
having waived in writing any rights which they may have to
dissent from such amendment, such consent and waiver having
been filed with the records of stockholders meetings.
FOURTH: The Articles of Amendment and Restatement shall become effective on
the first day of October, 1998.
EXPERT OFFICE SERVICES, INC.
By: /s/ Kathleen M. Delaney
------------------------------------
Kathleen M. Delaney, Vice President
Attest: (Witness:)
/s/ Mark D. Director
- -------------------------------------
Mark D. Director, Assistant Secretary
<PAGE>
THE UNDERSIGNED, Vice President of EXPERT OFFICE SERVICES, INC., who executed on
behalf of said corporation the foregoing Articles of Amendment and Restatement
of Charter, of which this certificate is made a part, hereby acknowledges, in
the name and on behalf of said corporation, the foregoing Articles of Amendment
and Restatement of Charter to be the corporate act of said corporation and
further certifies that, to the best of his knowledge, information and belief,
the matters and facts set forth therein with respect to the approval thereof are
true in all material respects, under the penalties of perjury.
/s/ Kathleen M. Delaney
- ------------------------------------
Kathleen M. Delaney, Vice President
<PAGE>
Exhibit 3.32
EXPERT OFFICE SERVICES, INC.
* * * * *
AMENDED AND RESTATED
BYLAWS
* * * * *
ARTICLE I
OFFICES
Section 1. The principal office shall be in the City of Beltsville,
State of Maryland.
Section 2. The corporation may also have offices at such other places
both within and without the State of Maryland 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. Meetings of stockholders shall be held at the office of the
corporation in Beltsville, State of Maryland, or at any other place within the
United States as shall be designated from time to time by the board of directors
and stated in the notice of meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1999, shall be held during the month of June at 10:00 a.m., or at such other
date and time as shall be fixed by the Board of Directors and stated in the
notice of the meeting, at which they shall elect a board of directors and may
transact any business within the powers of the corporation. Any business of the
corporation may be transacted at the annual meeting without being specially
designated in the notice, except such business as is specifically required by
statute to be stated in the notice.
Section 3. At any time in the interval between annual meetings special
meetings of the stockholders may be called by the board of directors, or by the
president, a vice-president, the secretary, or an assistant secretary.
Section 4. Special meetings of stockholders shall be called by the
secretary upon the written request of the holders of shares entitled to not less
than twenty-five per cent of all the votes entitled to be cast at such meeting.
Such request shall state the purpose or purposes of such meeting and the matters
proposed to be acted on thereat. The
<PAGE>
secretary shall inform such stockholders of the reasonably estimated cost of
preparing and mailing such notice of the meeting, and upon payment to the
corporation of such costs the secretary shall give notice stating the purpose or
purposes of the meeting to all stockholders entitled to notice at such meeting.
No special meeting need be called upon the request of the holders of shares
entitled to cast less than a majority of all votes entitled to be cast at such
meeting, to consider any matter which is substantially the same as a matter
voted upon at any special meeting of the stockholders held during the preceding
twelve months.
Section 5. Not less than ten nor more than ninety days before the date
of every stockholders' meeting, the secretary shall give to each stockholder
entitled to vote at such meeting, and to each stockholder not entitled to vote
who is entitled by statute to notice, written or printed notice stating the time
and place of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, either by mail or by presenting it to
him personally or by leaving it at his residence or usual place of business. If
mailed, such notice shall be deemed to be given when deposited in the United
States mail addressed to the stockholder at his post-office address as it
appears on the records of the corporation, with postage thereon prepaid.
Section 6. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. At any meeting of stockholders the presence in person or by
proxy of stockholders entitled to cast a majority of the votes thereat shall
constitute a quorum; but this section shall not affect any requirement under the
statute or under the charter for the vote necessary for the adoption of any
measure. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have 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 such adjourned meeting at which a
quorum shall be present or represented any business may be transacted which
might have been transacted at the meeting as originally notified.
Section 8. A majority of the votes cast at a meeting of stockholders,
duly called and at which a quorum is present, shall be sufficient to take or
authorize action upon any matter which may properly come before the meeting,
unless more than a majority of the votes cast is required by the statute or by
the charter.
Section 9. Unless the charter provides otherwise, each outstanding
share of stock having voting power shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders; but no share shall be entitled
to vote if any installment
<PAGE>
payable thereon is overdue and unpaid. A stockholder may vote the shares owned
of record by him either in person or by proxy executed in writing by the
stockholder or by his duly authorized attorney-in-fact. No proxy shall be valid
after eleven months from its date, unless otherwise provided in the proxy. At
all meetings of stockholders, unless the voting is conducted by inspectors, all
questions relating to the qualification of voters and the validity of proxies
and the acceptance or rejection of votes shall be decided by the chairman of the
meeting.
Section 10. Any action required or permitted to be taken at any meeting
of stockholders may be taken without a meeting, if a consent in writing, setting
forth such action, is signed by all the stockholders entitled to vote on the
subject matter thereof and any other stockholders entitled to notice of a
meeting of stockholders but not to vote thereat have waived in writing any
rights which they may have to dissent from such action, and such consent and
waiver are filed with the records of stockholders meetings.
ARTICLE III
DIRECTORS
Section 1. The number of directors of the corporation shall be three.
By vote of a majority of the entire board of directors, the number of directors
fixed by the charter or by these bylaws may be increased or decreased from time
to time not exceeding five nor less than one, but the tenure of office of a
director shall not be affected by any decrease in the number of directors so
made by the board. Until the first annual meeting of stockholders or until
successors are duly elected and qualify, the board shall consist of the persons
named as such in the charter. At the first annual meeting of stockholders and at
each annual meeting thereafter, the stockholders shall elect directors to hold
office until the next annual meeting or until their successors are elected and
qualify. Directors need not be stockholders in the corporation.
Section 2. Any vacancy occurring in the board of directors for any
cause other than by reason of an increase in the number of directors may be
filled by a majority of the remaining members of the board of directors,
although such majority is less than a quorum. Any vacancy occurring by reason of
an increase in the number of directors may be filled by action of a majority of
the entire board of directors. If the stockholders of any class or series are
entitled separately to elect one or more directors, a majority of the remaining
directors elected by that class or series or the sole remaining director elected
by that class or series may fill any vacancy among the number of directors
elected by that class or series. A director elected by the board of directors to
fill a vacancy shall be
<PAGE>
elected to hold office until the next annual meeting of stockholders or until
his successor is elected and qualifies.
Section 3. The business and affairs of the corporation shall be managed
by its board of directors, which may exercise all of the powers of the
corporation, except such as are by law or by the charter or by these bylaws
conferred upon or reserved to the stockholders.
Section 4. At any meeting of stockholders, duly called and at which a
quorum is present, the stockholders may, by the affirmative vote of the holders
of a majority of the votes entitled to be cast thereon, remove any director or
directors from office and may elect a successor or successors to fill any
resulting vacancies for the unexpired terms of removed directors.
MEETINGS OF THE BOARD OF DIRECTORS
Section 5. Meetings of the board of directors, regular or special, may
be held at any place in or out of the State of Maryland as the board may from
time to time determine.
Section 6. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting, and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 7. Regular meetings of the board of directors may be held
without notice at such time and place as shall from time to time be determined
by the board of directors.
Section 8. Special meetings of the board of directors may be called at
any time by the board of directors or the executive committee, if one be
constituted, by vote at a meeting, or by the president or by a majority of the
directors or a majority of the members of the executive committee in writing
with or without a meeting. Special meetings may be held at such place or places
within or without Maryland as may be
<PAGE>
designated from time to time by the board of directors; in the absence of such
designation such meetings shall be held at such places as may be designated in
the call.
Section 9. Notice of the place and time of every special meeting of the
board of directors shall be served on each director or sent to him by telegraph
or by mail, or by leaving the same at his residence or usual place of business
at least 10 days before the date of the meeting. If mailed, such notice shall be
deemed to be given when deposited in the United States mail addressed to the
director at his post-office address as it appears on the records of the
corporation, with postage thereon prepaid.
Section 10. At all meetings of the board a majority of the entire board
of directors shall constitute a quorum for the transaction of business and the
action of a majority of the directors present at any meeting at which a quorum
is present shall be the action of the board of directors unless the concurrence
of a greater proportion is required for such action by statute, the articles of
incorporation or these bylaws. If a quorum shall not be present at any meeting
of directors, the directors present thereat may by a majority vote adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 11. 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 a written consent to such action is signed by all members of the
board or of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the board or committee.
COMMITTEES OF DIRECTORS
Section 12. The board of directors may appoint from among its members
an executive committee and other committees composed of two or more directors,
and may delegate to such committees, any of the powers of the board of directors
except the power to declare dividends or distributions on stock, recommend to
the stockholders any action which requires stockholder approval, amend the
bylaws, approve any merger or share exchange which does not require stockholder
approval or issue stock. However, if the board of directors has given general
authorization for the issuance of stock, a committee of the board, in accordance
with a general formula or method specified by the board of directors by
resolution or by adoption of a stock option plan, may fix the terms of stock
subject to classification or reclassification and the terms on which any stock
may be issued. In the absence of any member of any such committee, the members
thereof present at any meeting, whether or not they constitute a quorum, may
appoint a member of the board of directors to act in the place of such absent
members.
<PAGE>
Section 13. The committees shall keep minutes of their proceedings and
shall report the same to the board of directors at the meeting next succeeding,
and any action by the committees shall be subject to revision and alteration by
the board of directors, provided that no rights of third persons shall be
affected by any such revision or alteration.
COMPENSATION OF DIRECTORS
Section 14. Directors, as such, shall not receive any stated salary for
their services but, by resolution of the board, a fixed sum, and expenses of
attendance if any, may be allowed to directors for attendance at each regular or
special meeting of the board of directors, or of any committee thereof, but
nothing herein contained shall be construed to preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor.
ARTICLE IV
NOTICES
Section 1. Notices to directors and stockholders shall be in writing
and delivered personally or mailed to the directors or stockholders at their
addresses appearing on the books of the corporation. Notice by mail shall be
deemed to be given at the time when the same shall be mailed. In the case of
stockholders' meetings the notice may be left at the stockholders residence or
usual place of business. Notice to directors may also be given by telegram.
Section 2. Whenever any notice of the time, place or purpose of any
meeting of stockholders, directors or committee is required to be given under
the provisions of the statute or under the provisions of the charter or these
bylaws, a waiver thereof in writing, signed by the person or persons entitled to
such notice and filed with the records of the meeting, whether before or after
the holding thereof, or actual attendance at the meeting of stockholders in
person or by proxy, or at the meeting of directors or committee in person, shall
be deemed equivalent to the giving of such notice to such persons.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The
<PAGE>
president shall be selected from among the directors. The board of directors may
also choose additional vice-presidents, and one or more assistant secretaries
and assistant treasurers. Two or more offices, except those of president and
vice-president, may be held by the same person but no officer shall execute,
acknowledge or verify any instrument in more than one capacity, if such
instrument is required by law, the charter or these bylaws to be executed,
acknowledged or verified by two or more officers.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president from among the
directors, and shall choose one or more vice-presidents, a secretary and a
treasurer, none of whom need be a member of the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall serve for one year and
until their successors are chosen and qualify. Any officer or agent may be
removed by the board of directors whenever, in its judgment, the best interests
of the corporation will be served thereby, but such removal shall be without
prejudice to the contractual rights, if any, of the person so removed. If the
office of any officer becomes vacant for any reason, the vacancy shall be filled
by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation; he shall preside at all meetings of the stockholders and directors,
shall have general and active management of the business of the corporation, and
shall see that all orders and resolutions of the board are carried into effect.
Section 7. He shall execute in the corporate name all authorized deeds,
mortgages, bonds, contracts or other instruments requiring a seal, under the
seal of the corporation, except in cases in which the signing or execution
thereof shall be expressly delegated by the board of directors to some other
officer or agent of the corporation.
<PAGE>
VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president, and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall keep in safe custody
the seal of the corporation and, when authorized by the board of directors,
affix the same to any instrument requiring it and, when so affixed, it shall be
attested by his signature or by the signature of an assistant secretary.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of
<PAGE>
directors so requires an account of all his transactions as treasurer and of the
financial condition of the corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board for the faithful performance of the duties of his
office and for the restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control
belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Each stockholder shall be entitled to a certificate or
certificates which shall represent and certify the number and kind and class of
shares owned by him in the corporation. Each certificate shall be signed by the
president or a vice-president and countersigned by the secretary or an assistant
secretary or the treasurer or an assistant treasurer and may be sealed with the
corporate seal.
Section 2. The signatures may be either manual or facsimile signatures
and the seal may be either facsimile or any other form of seal. In case any
officer who has signed any certificate ceases to be an officer of the
corporation before the certificate is issued, the certificate may nevertheless
be issued by the corporation with the same effect as if the officer had not
ceased to be such officer as of the date of its issue. Each stock certificate
shall include on its face the name of the corporation, the name of the
stockholder and the class of stock and number of shares represented by the
certificate. If the corporation has authority to issue stock of more than one
class, the stock certificate shall contain on its face or back a full statement
or summary of the designations and any preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, and
terms and conditions of redemption of the stock of each class which the
corporation is authorized to issue and if the corporation is authorized to issue
any preferred or special class in series, the differences in the relative rights
and preferences between the shares of each series to the extent they have been
set, and the authority of the
<PAGE>
board of directors to set the relative rights and preferences of subsequent
series. A summary of such information included in a registration statement
permitted to become effective under the Federal Securities Act of 1933, as now
or hereafter amended, shall be an acceptable summary for the purposes of this
section. In lieu of such full statement or summary, there may be set forth upon
the face or back of the certificate a statement that the corporation will
furnish to any stockholder upon request and without charge, a full statement of
such information. Every stock certificate representing shares of stock which are
restricted as to transferability by the corporation shall contain a full
statement of the restriction or state that the corporation will furnish
information about the restriction to the stockholder on request and without
charge. A stock certificate may not be issued until the stock represented by it
is fully paid, except in the case of stock purchased under an option plan as
provided by Section 2-207 of the Corporations and Associations Article of
Annotated Code of Maryland.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been stolen, lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be stolen, lost or destroyed. When authorizing such
issue of a new certificate or certificates, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such stolen, lost or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and to give the corporation a bond, with sufficient surety, to the corporation
to indemnify it against any loss or claim which may arise by reason of the
issuance of a new certificate.
TRANSFERS OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
<PAGE>
CLOSING OF TRANSFER BOOKS
Section 5. The board of directors may fix, in advance, a date as the
record date for the purpose of determining stockholders entitled to notice of,
or to vote at, any meeting of stockholders, or stockholders entitled to receive
payment of any dividend or the allotment of any rights, or in order to make a
determination of stockholders for any other proper purpose. Such date, in any
case, shall be not more than sixty days, and in case of a meeting of
stockholders not less than ten days, prior to the date on which the particular
action requiring such determination of stockholders is to be taken. In lieu of
fixing a record date, the board of directors may provide that the stock transfer
books shall be closed for a stated period but not to exceed, in any case, twenty
days. If the stock transfer books are closed for the purpose of determining
stockholders entitled to notice of or to vote at a meeting of stockholders, such
books shall be closed for at least ten days immediately preceding such meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Maryland.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the articles of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in its own shares, subject to the
provisions of the statute and of the articles of incorporation.
<PAGE>
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interests of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The president or a vice-president or the treasurer shall
prepare or cause to be prepared annually a full and correct statement of the
affairs of the corporation, including a balance sheet and a financial statement
of operations for the preceding fiscal year, which shall be submitted at the
annual meeting and shall be filed within twenty days thereafter at the principal
office of the corporation in the State of Maryland.
CHECKS
Section 4. All checks, drafts, and orders for the payment of money,
notes and other evidences of indebtedness, issued in the name of the corporation
shall be signed by such officer or officers as the board of directors may from
time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be the last
Saturday in April.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Maryland." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
STOCK LEDGER
Section 7. The corporation shall maintain at its office in the City of
Washington, District of Columbia, an original stock ledger containing the names
and
<PAGE>
addresses of all stockholders and the number of shares of each class held by
each stockholder. Such stock ledger may be in written form or any other form
capable of being converted into written form within a reasonable time for visual
inspection.
ARTICLE VIII
AMENDMENTS
Section 1. The board of directors shall have the power, at any regular
meeting or at any special meeting if notice thereof be included in the notice of
such special meeting, to alter or repeal any bylaws of the corporation and to
make new bylaws, except that the board of directors shall not alter or repeal
any bylaws made by the stockholders.
Section 2. The stockholders shall have the power, at any annual meeting
or at any special meeting if notice thereof be included in the notice of such
special meeting, to alter or repeal any bylaws of the corporation and to make
new bylaws.
I, THE UNDERSIGNED, being the Assistant Secretary of DO HEREBY CERTIFY
the foregoing to be the by-laws of said corporation, as adopted at a meeting of
the directors held on September 25, 1998.
By:
-------------------------------
Mark D. Director
Assistant Secretary
<PAGE>
Exhibit 3.33
State of Arkansas--Office of the Secretary of State
CERTIFICATE OF AMENDMENT
The undersigned, pursuant to the Arkansas Business Corporation Act (Act 958 of
1987), sets forth the following:
1. The name of the corporation is FORT SMITH OFFICE SUPPLY, INC. and is
duly organized, created and existing under and by virtue of the laws of the
State of Arkansas.
2. The amendment to the Articles of Incorporation was adopted on September 25,
1998.
3. The Articles of Incorporation are amended as follows:
See 1 in Addendum
4. If an amendment provides for an exchange, reclassification or cancellation of
issued shares and such provisions are not contained in the amendment itself,
state the provisions for the implementation.
See 2 in Addendum
5. A. / / The amendment was adopted by the incorporators or board of directors
of the corporation and no action by the shareholders was required to adopt
the amendment.
OR
5. B. /x/ The amendment was approved by the shareholders 100 shares of
--------
(Number)
Common stock are outstanding. 100 votes are entitled to be cast by
- -------------- --------
each by each voting group entitled to vote separately on the amendment. The
number of votes of each voting group indisputably represented at the meeting was
100 shares voted in favor of the amendment and 0 shares voted
- ----------- ----------
against the amendment. The number of shares voting in favor of the amendment was
sufficient to adopt the amendment. (Elections to be governed by Act 958 of 1987
must be approved by at least two-thirds (2/3) of the shares of each outstanding
class of corporate stock.)
/s/ Mark D. Director
----------------------------------------
Signature
Mark D. Director, Vice President
-----------------------------------
Title (Chairman of the Board, President,
other officer, if directors have not been
elected, an incorporator)
Filing Fee: $50
Fee with share exchange: $100
<PAGE>
Addendum
The articles of incorporation are amended and restated in their
entirety as follows:
FIRST: The name of the corporation is: US OFFICE PRODUCTS, MID-SOUTH
DISTRICT, INC.
SECOND: The aggregate number of shares which the corporation shall have
the authority to issue is: 1,000 shares of common stock, without par
value.
THIRD: The registered office of this corporation shall be located at
425 West Capitol Avenue, Suite 1700, Little Rock, Arkansas 72201, and
the name of the registered agent of this corporation at that address is
The Corporation Company.
FOURTH: The duration of the corporation shall be perpetual.
SIXTH: The nature of the business of the corporation and the object or
purpose proposed to be transacted, promoted or carried on by it are to
conduct any business enterprise not contrary to law and to exercise all
of the powers enumerated in Section 4-27-302 of the Arkansas Business
Corporation Act.
2.
Upon the effectiveness of this amendment, the 100 shares of Common
Stock, par value $50.00 of the corporation (the "Old Stock"), that are
issued and outstanding shall be converted into 1,000 issued shares of
Common Stock, no par value, of the corporation (the "New Stock"), on
the basis of ten shares of New Stock for each share of Old Stock.
Upon the effectiveness of this amendment, holders of the issued shares
of the Old Stock, upon surrendering certificates evidencing the issued
shares of Old Stock for cancellation, shall be entitled to receive
certificates for shares of the New Stock on the basis set forth above.
<PAGE>
Exhibit 3.34
US OFFICE PRODUCTS, MID-SOUTH DISTRICT, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in Little Rock, Arkansas.
Section 2. The corporation may also have offices at such other places both
within and without the State of Arkansas as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors shall
be held in Fort Smith, State of Arkansas, at such place as may be fixed from
time to time by the board of directors, and if no place is stated then at the
principal office.
1
<PAGE>
Section 2. Annual meetings of shareholders, commencing with the year 1999,
shall be held in the last week of June at 10:00 A.M., at which they shall elect
by a plurality vote a board of directors, and transact such other business as
may properly be brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be given to each shareholder of record
entitled to vote thereat not less than ten nor more than 60 days before the date
of the meeting, either personally or by mail, by or at the direction of the
president, the secretary, or the officer or persons calling the meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than the
election of directors may be held at such time and place within or without the
State of Arkansas as shall be stated in the notice of the meetings or in a duly
executed waiver of notice thereof. If no place is stated, special meetings shall
be held at the corporation's principal office.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president, the board of directors, or the
holders of at least 10% of all the votes entitled to be cast on any issue
proposed to be considered at the proposed special meeting.
Section 3. Written or printed notice of a special meeting of shareholders,
stating the time, place and purpose or purposes thereof, shall be given to each
shareholder entitled to vote thereat, at least ten and not more than sixty days
before the date fixed for the meeting.
2
<PAGE>
Section 4. The business transacted at any special meeting of shareholders
shall be limited to the purposes described in the meeting notice.
3
<PAGE>
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders entitled to vote thereat,
present in person or represented by proxy, shall have 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 such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than one hundred and twenty days after
the date fixed for the original meeting, the directors must fix a new record
date and notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting. Once a share is represented for any
purpose at a meeting, it is deemed present for quorum purposes for the remainder
of the meeting and for any adjournment of that meeting unless a new record date
is or must be set for that adjourned meeting.
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
Section 3. Each outstanding share of stock, having voting power, shall be
entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in
4
<PAGE>
person or by proxy executed in writing by the shareholder or by his duly
authorized attorney-in-fact.
Section 4. In all elections for directors every shareholder entitled to
vote shall have the right to vote, in person or by proxy, the number of shares
of stock owned by him, for as many persons as there are directors to be elected,
or to cumulate the vote of said shares (if provided for in the articles of
incorporation), and give one candidate as many votes as the number of directors
multiplied by the number of his shares of stock shall equal, or to distribute
the votes on the same principal among as many canidates as he/she sees fit. Any
action required to be taken at a meeting of the shareholders may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the shareholders entitled to vote with respect to the
subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. The directors, other than
the first board of directors, shall be elected at the annual meeting of
shareholders, and each director elected shall hold office until his successor is
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the number of directors may be filled by the shareholders, the board
of directors, or a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office
5
<PAGE>
until the next annual election and until their successors are duly elected and
shall qualify. If the vacant office is filled by the shareholders and was held
by a director elected by a voting group of shareholders, then only the holders
of shares of that voting group are entitled to vote to fill the vacancy.
Section 3. The business affairs of the corporation shall be managed by its
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 articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the corporation, except such
as are required by law to be kept within the state, outside of the State of
Arkansas, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a majority of
the directors then in office, and irrespective of any personal interest of any
of its members, shall have authority to establish reasonable compensation of all
directors for services to the corporation as directors, officers or otherwise
consistent with the articles of incorporation or by-laws.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may be
held either within or without the State of Arkansas.
6
<PAGE>
Section 2. The first meeting of each newly elected board of directors shall
be held at such time and place as shall be fixed by the vote of the shareholders
at the annual meeting and no notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting, provided a
quorum shall be present, or it may convene at such place and time as shall be
fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon such
notice, or without notice, and at such time and at such place as shall from time
to time be determined by the board.
Section 4. Unless the articles of incorporation or these by-laws provide
otherwise, special meetings of the board of directors may be called by the
president on at least 2 days' notice of the time, date and place of meeting to
each director, either personally or by mail or by telegram; special meetings
shall be called by the president or secretary in like manner and on like notice
on the written request of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director at the beginning of
the meeting (or promptly upon his arrival) objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater number is required by law or by the
articles of incorporation. (A quorum of the board of directors may consist of no
fewer than one-third of the fixed or prescribed number
7
<PAGE>
of directors.) The act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the board of directors, unless the
act of a greater number is required by statute or by the articles of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 7. Unless the articles of incorporation provide otherwise, action
required or permitted by law to be taken at a board of directors' meeting may be
taken without a meeting if the action is taken by all members of the board. The
action must be evidenced by one or more written consents describing the action
taken, signed by each director, and included in the minutes or filed with the
corporate records reflecting the action taken.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board of directors, by resolution adopted by a majority of
the number of directors fixed by the by-laws or otherwise, may create one or
more committees and appoint members of the board to serve on them. Each
committee must have two or more members, who serve at the pleasure of the board
of directors. Such committee shall have and exercise all of the authority of the
board of directors in the management of the corporation, except as otherwise
required by law. Vacancies in the membership of the committee shall be filled by
the board of directors at a regular or special meeting of the board of
directors. The executive committee shall keep regular minutes of its proceedings
and report the same to the board when required.
8
<PAGE>
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these by-laws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
Section 2. Whenever any notice whatever is required to be given under the
provisions of the statutes or under the provisions of the articles of
incorporation or these by-laws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation may be elected or appointed by
the board of directors or by a duly elected or appointed officer if authorized
by the board of directors. A corporation must have at least one officer. The
same individual may simultaneously hold more than one office in a corporation.
9
<PAGE>
Section 2. The board of directors at its first meeting after each annual
meeting of shareholders shall choose a president and one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member of
the board. A corporation must have at least one officer.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors or by an officer authorized by the
board of directors.
Section 4. The salaries of all officers and agents of the corporation shall
be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed with or without cause at any time by the affirmative
vote of a majority of the board of directors. Any vacancy occurring in any
office of the corporation shall be filled by the board of directors or by an
officer authorized by the board of directors. Each officer has the authority and
shall perform the duties as set forth herein or as prescribed by the board of
directors or by direction of an officer authorized by the board of directors to
prescribe the duties of other officers.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active
10
<PAGE>
management of the business of the corporation and shall see that all orders and
resolutions of the board of directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his inability
or refusal to act, the vice-president (or in the event there be more than one
vice-president, the vice-presidents in the order designated by the directors, or
in the absence of any designation, then in the order of their election) shall
perform the duties of the president, and when so acting shall have all the
powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders
11
<PAGE>
and special meetings of the board of directors, and shall perform such other
duties as may be prescribed by the board of directors or president, under whose
supervision he shall be. He shall have custody of the corporate seal of the
corporation and he, or an assistant secretary, shall have authority to affix the
same to any instrument requiring it and when so affixed, it may be attested by
his signature or by the signature of such assistant secretary.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary, or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
12
<PAGE>
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than one,
the assistant treasurers, in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the treasurer, or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation may but need not be represented by
certificates signed (manually or in facsimile) by the president or a
vice-president and the secretary or an assistant secretary of the corporation,
and may be sealed with the seal of the corporation or a facsimile thereof. If
the issuing corporation is authorized to issue different classes of shares or
different series within a class, the designations, relative rights, preferences,
and limitations applicable to each class and the variations in rights,
preferences, and limitations determined for each series (and the authority of
the board of directors to determine variations for future series)
13
<PAGE>
must be summarized on the front or back of each certificate. Alternatively, each
certificate may state conspicuously on its front or back that the corporation
will furnish the shareholder this information on request in writing and without
charge.
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen, or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
14
<PAGE>
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate representing shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, a new
certificate shall be issued to the person entitled thereto, and the old
certificate cancelled and the transaction recorded upon the books of the
corporation.
15
<PAGE>
FIXING RECORD DATE
Section 5. For the purpose of determining shareholders entitled to notice
of or to vote at any meeting of shareholders, or any adjournment thereof, or
entitled to receive payment of any dividend, or in order to make a determination
of shareholders for any other proper purpose, the board of directors may fix in
advance a date as the record date for any such determination of shareholders,
such date in any case to be not more than seventy days prior to the meeting or
the particular action requiring such determination of shareholders. If no record
date is fixed for the determination of shareholders entitled to notice of or to
vote at a meeting of shareholders, or shareholders entitled to receive payment
of a dividend, the date on which notice of the meeting is mailed or the date on
which the resolution of the board of directors declaring such dividend is
adopted, as the case may be, shall be the record date for such determination of
shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on
16
<PAGE>
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Arkansas.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the transfer books for
shares shall prepare an alphabetical list of the names of all its shareholders
with the address and number of shares held by each. The list must be available
for inspection by any shareholder, beginning two business days after notice of
the meeting is given for which the list was prepared and continuing throughout
the meeting, at the corporation's principal office or at a place identified in
the meeting notice in the city where the meeting will be held. A shareholder,
his agent, or attorney, is entitled, on written demand, to inspect and copy the
list, during regular business hours and at his expense, during the period it is
available for inspection. The corporation shall make the shareholders' list
available at the meeting, and any shareholder, his agent, or attorney is
entitled to inspect the list at any time during the meeting or at any
adjournment.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to
17
<PAGE>
law. Dividends may be paid in cash, in property or in shares of stock, subject
to any provisions of the articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors, from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday in April.
SEAL
18
<PAGE>
Section 5. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Arkansas." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be altered, amended, or repealed or new
by-laws may be adopted only by the affirmative vote of a majority of the board
of directors at any regular or special meeting of the board, unless otherwise
provided by the articles of incorporation or by-laws.
Section 2. A by-law that fixes a greater quorum requirement for the board
of directors may be amended or repealed only by the shareholders if the
provision was originally adopted by the shareholders or only by the board of
directors if the provision was originally adopted by the board of directors.
<PAGE>
Exhibit 3.35
No. 00282244
STATE OF MISSOURI
ROY D. BLUNT, Secretary of State
CORPORATION
DIVISION
Certificate of Incorporation
WHEREAS, duplicate originals of Articles of Incorporation of
FORTY-FIFTEEN PAPIN REDEVELOPMENT
CORPORATION
have been received and filed in the office of the Secretary of State, which
Articles, in all respects, comply with the requirements of The Urban
Redevelopment Corporation Law:
NOW, THEREFORE, I, ROY D. BLUNT. Secretary of State of the State of Missouri, by
virtue of the authority vested in me by law, do hereby certify and declare
FORTY-FIFTEEN PAPIN REDEVELOPMENT
CORPORATION
a body corporate, duly organized this day and that it is entitled to all rights
and privileges granted corporations organized under The Urban Redevelopment
Corporation Law; that the address of its initial Registered Office in Missouri
is One Mercantile Center, Suite 3400, St. Louis, 63101, that its period of
existence is Ninety-Nine years; and that the amount of its Authorized Shares is
30,000 shares of Common @ $1.00 par value.
IN TESTIMONY WHEREOF, I hereunto set my hand and
affix the GREAT SEAL of the State of Missouri.
Done at the City of Jefferson, this 7th day of
November, 1985
/s/ Roy D. Blunt
--------------------------------
Secretary of State
RECEIVED OF: FORTY-FIFTEEN PAPIN REDEVELOPMENT CORPORATION
Fifty-three and no/100 -----------------------------Dollars. $ 53.00
For Credit of General Revenue Fund, on Account of Incorporation Tax and Fee.
<PAGE>
ARTICLES OF ASSOCIATION
OF
FORTY-FIFTEEN PAPIN REDEVELOPMENT CORPORATION
The undersigned, being a natural person of the age of eighteen
(18) years or more, for the purpose of organizing a corporation under The Urban
Redevelopment Corporations Law of Missouri, does hereby adopt the following
Articles of Association:
ARTICLE I
The name of the Corporation is Forty-Fifteen Papin Redevelopment
Corporation (hereinafter, "Corporation").
ARTICLE II
The city in which its principal business office is to be located
is the City of St. Louis. The address, including street and number, if any, of
its initial registered office in the State of Missouri is One Mercantile Center,
Suite 3400, St. Louis, Missouri 63101, and the name of its initial registered
agent at such address is Vicki M. Barnell.
ARTICLE III
The aggregate number, class and par value of shares which the
Corporation shall have authority to issue shall be Thirty Thousand (30,000)
shares of common stock having a par value of One Dollar ($1.00) per share.
FILED AND CERTIFICATE OF
INCORPORATION
ISSUED
NOV 07, 1985
Roy D. Blunt
Corporation Dept., Secretary of State
<PAGE>
ARTICLE IV
No shareholder of the corporation shall have any preemptive or
preferential right of subscription to or purchase of any shares of any class of
the Corporation, whether now or hereafter authorized, or to any securities or
obligations including, but without limitation to, those obligations convertible
into any class of stock issued by the Corporation, and whether issued or sold
for cash, property, services or otherwise. The acceptance of shares in the
Corporation shall constitute a waiver of any such preemptive or preferential
right that in the absence of this provision might otherwise be asserted by
shareholders of the Corporation..
ARTICLE V
The name and post office address of the subscriber to the
Articles of Association is Vicki M. Barnell, c/o Thompson & Mitchell, One
Mercantile Center, Suite 3400, St. Louis, Missouri 63101.
ARTICLE VI
The number of Directors to constitute the Board of Directors of
the Corporation shall be three (3).
ARTICLE VII
The names and post office addresses of the directors of the
Corporation for the first year are:
Name Post Office Address
---- -------------------
Paul Mendelson 3 Spoede Woods
St. Louis, Missouri 63141
2
<PAGE>
Michael J. Barnell 808 S. Brentwood - 2A
St. Louis, Missouri 63105
Vicki M. Barnell 808 S. Brentwood - 2A
St. Louis, Missouri 63105
ARTICLE VIII
The duration of the Corporation is ninety-nine (99) years.
ARTICLE IX
The Corporation isformed for the following purposes:
to acquire, construct, maintain, and operate a redevelopment project or
redevelopment projects in accordance with the provisions of The Urban
Redevelopment Corporations Law of Missouri, Chapter 353 of the Missouri Revised
Statutes-as amended; to clear, replan, reconstruct or rehabilitate blighted
areas, and to construct such industrial, commercial, residential or public
structures as may be appropriate, including provisions for recreational or
other facilities incidental or appurtenant thereto; and, in general, to have
and exercise all legal powers and purposes in accordance with The Urban
Redevelopment Corporations Law of the State of Missouri.
ARTICLE X
In the event that income debenture certificates are issued by
the Corporation, the owners thereof shall have the same right to vote as they
would have if possessed of certificates of stock of the amount and par value
of the income debenture certificates held by them. Such income debentures may
be retired by the Corporation as and when there shall be funds
3
<PAGE>
available in the treasury of the Corporation from the receipt of amortization
or sinkingfunds in installments for that purpose. Interest shall not be paid by
the Corporation upon such income debenture certificates in excess of nine
percent per annual provided, however, that this limitation shall not apply to
other debt of the Corporation.
ARTICLE XI
The Corporation has been organized to serve a public purpose;
all real estate acquired by it and all structures erected by it are to be
acquired for the purpose of promoting the public health, safety and welfare,
and the stockholders of the Corporation shall, when they subscribe to and
receive the stock thereof, agree that the net earnings of the Corporation shall
be limited to an amount not, to exceed eight percent per annum of the cost to
the Corporation of the redevelopment project including the cost of the land, or
the balances of such cost as reduced by amortization payments; provided that
the net earnings derived from any redevelopment project shall in no event
exceed a sum equal to eight percent per annum upon the entire cost thereof.
Such net earnings shall be computed after deducting from gross earnings the
following:
(a) All costs and expenses of maintenance and operation;
(b) Amounts paid for taxes, assessments, insurance
premiums and other similar charges;
4
<PAGE>
(c) An annual amount sufficient to amortize the cost of the
entire project at the end of the period, which shall be not more than sixty
years from the date of completion of the project.
A redevelopment plan of the Corporation may contain provisions
satisfactory to the legislative authority authorizing such plan that any
surplus earnings, in excess of the rate of net earnings provided herein may be
held by the Corporation as a reserve for maintenance of such rate of return in
the future and may be used by the Corporation to offset any deficiency in such
rate of return which may have occurred in prior years; or may be used to
accelerate the amortization payments; or for the enlargement of the project; or
for reduction in rentals therein; provided that any excess of such surplus
earnings remaining at the termination of the tax relief granted pursuant to
Section 353.110 of the Missouri Revised Statutes shall be turned over by the
Corporation to the city in which the redevelopment project is located.
Redevelopment corporations are recognized for the purpose of
the clearance, replanning, reconstruction or rehabilitation of blighted areas,
and the construction of such industrial, commercial, residential or public
structures as may be appropriate, including provisions for recreational and
other facilities incidental or appurtenant thereto.
5
<PAGE>
ARTICLE XII
The power to make, alter, amend or repeal the By-Laws of the
Corporation shall be vested in the Board of Directors. The Board of Directors
shall have and exercise such further powers as are provided it under present or
future laws of the State of Missouri.
ARTICLE XIII
This Corporation shall, to the full extent permitted by law,
indemnify all persons or classes of persons whom it may indemnify pursuant
thereto.
IN TESTIMONY WHEREOF, I have hereunto set my hand to these
Articles of Association this 7th day, of November, 1985.
/s/ Vicky M. Barnell
----------------------------
Vicki M. Barnell, Subscriber
STATE OF MISSOURI )
) SS
CITY OF ST. LOUIS )
I, Doris Jung, a notary public, do hereby certify that on the
7th day of November, 1985, personally appeared before me Vicki M. Barnell, who,
being by me first duly sworn, declared that she is the person who signed the
foregoing document as subscriber, and that the statements and matters set forth
therein are true.
(SEAL)
/s/ Doris Jung
------------------------------------
Notary Public
FILED, AND CERTIFICATE OF
INCORPORATION
ISSUED
NOV 07 1985
Roy D. Blunt
Corporation Dept. Secretary of State
<PAGE>
STATE OF MISSOURI
ROY D. BLUNT. Secretary of State
CORPORATION DIVISION
Statement of Change of Registered Agent or
Registered Office by Foreign or Domestic Corporations
FEE CHANGE $5.00 INSTRUCTIONS
There is a $3.00 fee for filing this statement. It must be filed in
DUPLICATE.
The statement should be sealed with the corporate seal. If it does not
have a seal, it-rite "no seal" where the seal would otherwise appear.
The registered office may be, but need not be. the same as the place of
business of the corporation, but the registered office a nd the business
address of the agent must be the same. The corporation cannot act as its own
registered agent.
Any subsequent change in the registered office or agent must be
immediately reported to the Secretary of State. These forms are available
upon request from the Office of the Secretary of State.
To: SECRETARY OF STATE
P.O. Box 778 Charter No. 00282244
Jefferson City, Missouri 65102
The undersigned corporation, organized under the laws of the State of
Missouri for the purpose of changing its Registered Agent/ Resident office,
or both. in Missouri as provided by the provisions of "The General and
Business Corporation Act of Missouri," represents that:
1. The name of the corporation is Forty-Fifteen Papin Redevelopment
Corporation
2. The name of its PRESENT registered agent (before change) is Vicki M.
Barnell
3. The name of the new registered agent is Michael J. Barnell
4. The address. including street number, if any. of its PRESENT registered
office (before change) is one mercantile Center, Suite 3400, St. Louis,
Missouri 63101
5. Its registered office (including street number, if any change is to be
made) is hereby CHANGED TO 4015 Papin Street, St. Louis, Missouri 63110
6. The address of its registered office and the address of the business
office of its registered agent as changed will be identical.
Corp. 58 (1-851) (Over)
<PAGE>
7. Such change was authorized by resolution duly adopted by the board of
directors.
IN WITNESS WHEREOF, the undersigned corporation has caused this report to be
executed in its name by its PRESIDENT or VICE-PRESIDENT, attested by its
SECRETARY or ASSISTANT SECRETARY this 21 day of May, 1998.
FORTY-FIFTEEN PAPIN
REDEVELOPMENT CORPORATION
Name of Corporation
(Corporate Seal) By /s/ Paul Mendelson
-------------------------------------
President
If no seal. state "none". Paul Mendelson
Attest: /s/ Michael J. Barnell
---------------------------------
Secretary
Michael J. Barnell FILED MAY 26, 1987
Roy D. Blunt
SECRETARY OF STATE
State of MISSOURI )
County of St. Louis. ) SS
I, Douglas Short, a Notary Public, do hereby certify that on the 21st day of
May1987, personally appeared before me Paul Mendelson, who declares he is
President of the corporation, executing the foregoing document, and being first
duly sworn, acknowledged that he signed the foregoing document in the capacity
therein set forth and declared that the statements therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
before written.
/s/Douglas E. short
----------------------
(Notarial Seal) Notary Public
My Commission expires
on January 29, 1999
<PAGE>
Exhibit 3.36
FORTY-FIFTEEN PAPIN REDEVELOPMENT CORPORATION
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in St.Louis, Missouri.
Section 2. The corporation may also have offices at such other places
both within and without the State of Missouri as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in St. Louis, State of Missouri, at such place as may be fixed
from time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect by a plurality vote a
<PAGE>
board of directors, and transact such other business as may properly be brought
before the meeting.
Section 3. Written or printed notice of the annual meeting stating
the place, day and hour of the meeting shall be delivered not less than ten
nor more than seventy days before the date of the meeting, either personally
or by mail, by or at the direction of the president, or the secretary, or the
officer or persons calling the meeting, to each shareholder of record
entitled to vote at such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Missouri as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the board of directors or by such other person
or persons as may be provided in the articles of incorporation.
Section 3. Written or printed notice of a special meeting stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than ten nor more than seventy
days before the date of the meeting, either personally or by mail, by or at the
direction of the president, or the secretary, or the officer
<PAGE>
or persons calling the meeting, to each shareholder of record entitled to vote
at such meeting.
Section 4. The business transacted at any special meeting of shareholders
shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
<PAGE>
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Unless otherwise provided by the articles of incorporation, each
shareholder in electing directors shall have the right to cast as many votes in
the aggregate as shall equal the number of votes held by him in the corporation
multiplied by the number of directors to be elected at the election, and each
shareholder may cast the whole number of votes, either in person or by proxy,
for one candidate, or distribute them among two or more candidates.
Section 4. Any action required to be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Directors need not be
residents of the State of Missouri nor shareholders of the corporation. The
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
<PAGE>
Section 2. Unless otherwise provided in the articles of incorporation or
these bylaws, any vacancy occurring in the board of directors and any newly
created directorship resulting from any increase in the number of directors to
constitute the board of directors may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole remaining director,
until the next election of directors by the shareholders.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these bylaws directed or required to be exercised or done by
the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Missouri, at such place or places as the directors may from time to time
determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for services to the corporation as directors, officers or
otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Missouri.
<PAGE>
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 10 days' notice to each director, either personally or by mail
or by facsimile telecommunication; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
Section 6. A majority of the full board of directors shall constitute a
quorum for the transaction of business unless a greater number is required by
statute or by the articles of incorporation. The act of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the board of directors, unless the act of a greater number is required by
statute or by the articles of incorporation. If a quorum shall not be
<PAGE>
present at any meeting of directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors, or of the executive committee or any other committee of the
directors, may be taken without a meeting, if a consent in writing, setting
forth the action so taken, shall be signed by all of the members of the board or
of the committee entitled to vote with respect to the subject matter thereof.
Section 8. Unless otherwise restricted by the articles of incorporation
or these bylaws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors or committee by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear each other, and participation in a meeting in this manner shall constitute
presence in person at the meeting.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the bylaws or otherwise, may designate two
or more directors to constitute an executive committee, which committee, to the
extent provided in such resolution, shall have and exercise all of the authority
of the board of directors in the
<PAGE>
management of the corporation, except as otherwise required by law. Vacancies in
the membership of the committee shall be filled by the board of directors at a
regular or special meeting of the board of directors. The executive committee
shall keep regular minutes of its proceedings and report the same to the board
when required.
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these bylaws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by facsimile telecommunication.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these bylaws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
<PAGE>
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
Section 2. The board of directors at its first meeting after each annual
meeting of shareholders shall choose a president, one or more vice-presidents, a
secretary and a treasurer, none of whom need be a member of the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
<PAGE>
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
<PAGE>
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
<PAGE>
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and
<PAGE>
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates signed by the president or a vice-president and the secretary or an
assistant secretary or the treasurer or an assistant treasurer of the
corporation, and sealed with the seal of the corporation or a facsimile thereof.
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as
<PAGE>
it deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
CLOSING OF TRANSFER BOOKS
Section 5. The board of directors shall have power to close the transfer
books of the corporation for a period not exceeding seventy days preceding the
date of any meeting of shareholders or the date for payment of any dividend or
the date for the allotment of rights or the date when any change or conversion
or exchange of shares shall go into effect; provided, however, that in lieu of
closing the transfer books, the board of directors may fix in advance a date,
not exceeding seventy days preceding the date of any meeting of shareholders, or
the date for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of shares shall go
into effect,
<PAGE>
as a record date for the determination of the shareholders entitled to notice
of, and to vote at the meeting, and any adjournment thereof, or entitled to
receive payment of the dividend, or entitled to any such allotment of rights, or
entitled to exercise the rights in respect of the change, conversion or exchange
of shares, and in such case, only the shareholders who are shareholders of
record on the date of closing the transfer books or on the record date so fixed
shall be entitled to notice of, and to vote at, the meeting, and any adjournment
thereof, or to receive payment of the dividend, or to receive the allotment of
rights, or to exercise the rights, as the case may be, notwithstanding any
transfer of any shares on the books of the corporation after the date of closing
of the transfer books or the record date fixed as aforesaid. If the board of
directors does not close the transfer books or set a record date for the
determination of the shareholders entitled to notice of, and to vote at, a
meeting of shareholders, only the shareholders who are shareholders of record at
the close of business on the twentieth day preceding the date of the meeting
shall be entitled to notice of, and to vote at, the meeting, and any adjournment
of the meeting; except that, if prior to the meeting, written waivers of notice
of the meeting are signed and delivered to the corporation by all of the
shareholders of record at the time the meeting is convened, only the
shareholders who are shareholders of record at the time the meeting is convened
shall be entitled to vote at the meeting, and any adjournment of the meeting.
<PAGE>
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Missouri.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the transfer books for
shares shall make, at least ten days before each meeting of shareholders, a
complete list of the shareholders entitled to vote at such meeting, arranged in
alphabetical order, with the address of each and the number of shares held by
each, which list, for a period of ten days prior to such meeting, shall be kept
on file at the registered office of the corporation and shall be subject to
inspection by any shareholder at any time during usual business hours. Such list
shall also be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any shareholder during the whole time of
the meeting. The original share ledger or transfer book, or a duplicate thereof,
shall be prima facie evidence as to who are the shareholders entitled to examine
such list or share ledger or transfer book or to vote at any meeting of the
shareholders.
<PAGE>
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of the capital stock, subject to any provisions of the
articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Missouri". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. If provided by the articles of incorporation, these bylaws
may be altered, amended, or repealed or new bylaws may be adopted by the
affirmative vote of a majority of the board of directors at any regular or
special meeting of the board.
<PAGE>
Exhibit 3.37
CERTIFICATE OF
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
US OFFICE PRODUCTS, UPPER MID-WEST DISTRICT, INC.
The undersigned, Mark D. Director, the Vice President of US Office
Products, Upper Mid-West District, Inc., a corporation subject to the provisions
of Chapter 302A, Minnesota Statutes, hereby certifies that pursuant to a
unanimous written consent of the Shareholder and Board of Directors, acting
pursuant to Minnesota Statutes, Section 302A.441 and 302A.239, Subd. 1,
effective September 25, 1998, resolutions as hereinafter set forth were adopted:
RESOLVED, that the Articles of Incorporation of US Office Products, Upper
Mid-West District, Inc. be and the same are hereby amended in their entirety to
read as follows:
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
US OFFICE PRODUCTS, UPPER MID-WEST DISTRICT, INC.
The following Amended and Restated Articles of Incorporation shall
supercede and take the place of the existing Articles of Incorporation and all
amendments thereof:
ARTICLE 1 - NAME
1.1) The name of the corporation shall be US Office Products, Upper Mid-West
District, Inc.
ARTICLE 2 - REGISTERED OFFICE AND AGENT
2.1) The location and post office address of the registered office of the
corporation shall be 405 Second Avenue South, Minneapolis, Minnesota
55401 and the registered agent at the above listed address is C T
Corporation System.
ARTICLE 3 - PURPOSE
3.1) The corporation is organized for general business purposes.
ARTICLE 4 - DURATION
4.1) The duration of the corporation shall be perpetual.
<PAGE>
Exhibit 3.38
US OFFICE PRODUCTS, UPPER MID-WEST DISTRICT, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in Minneapolis,
Minnesota.
Section 2. The corporation may also have offices at such other places
both within and without the State of Minnesota as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in New Brighton, State of Minnesota, at such place as may be fixed
from time to time by the board of directors.
1
<PAGE>
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held during the last week of June at 10:00 A.M., at which they
shall elect by a plurality vote a board of directors, and transact such other
business as may properly be brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be given to each shareholder entitled
to vote thereat not less than 2 days before the date of the meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Minnesota as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of shareholders may be called at any time,
for any purpose or purposes, by the board of directors or by such other persons
as may be authorized by law.
Section 3. Written or printed notice of a special meeting of
shareholders, stating the time, place and purpose or purposes thereof, shall be
given to each shareholder entitled to vote thereat, at least 2 days before the
date fixed for the meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
2
<PAGE>
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2. The shareholders shall take action by the affirmative vote of
the holders of the greater of (1) a majority of the voting power of the shares
present and entitled to vote on that item of business, or (2) a majority of the
voting power of the minimum number of the shares entitled to vote that would
constitute a quorum for the transaction of business at the meeting, unless the
vote of a greater number of shares of stock is required by law or the articles
of incorporation. If the articles of incorporation require a larger proportion
or number than is required by law, the articles control.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in
3
<PAGE>
person or by proxy executed in writing by the shareholder or by his duly
authorized attorney-in-fact.
Section 4. Any action required to be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Directors need not be
residents of the State of Minnesota nor shareholders of the corporation. The
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
Section 2. Any vacancy occurring in the board of directors may be filled
by the affirmative vote of a majority of the remaining directors though less
than a quorum of the board of directors. A director elected to fill a vacancy
shall be elected for the unexpired portion of the term of his predecessor in
office.
Any directorship to be filled by reason of an increase in the number of
directors shall be filled by election at an annual meeting or at a special
meeting of shareholders called for that purpose. A
4
<PAGE>
director elected to fill a newly created directorship shall serve until the next
succeeding annual meeting of shareholders and until his successor shall have
been elected and qualified.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Minnesota, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for service to the corporation as directors, officers or
otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Minnesota.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
5
<PAGE>
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 2 days' notice to each director, either personally or by mail
or by telegram; special meetings shall be called by the president or secretary
in like manner and on like notice on the written request of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
Section 6. The board shall take action by the affirmative vote of the
greater of (1) majority of directors present at a duly held meeting at the time
the action is taken, or (2) a majority of the minimum proportion or number of
directors that would constitute a quorum for the transaction of business at the
meeting, unless the act of a greater number is required by statute or by the
articles of incorporation. If the articles require a larger proportion or number
than is required by statute for a particular action, the articles shall control.
If a quorum shall not be present at any meeting of directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
6
<PAGE>
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors entitled to
vote with respect to the subject matter thereof.
7
<PAGE>
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the by-laws or otherwise, may designate two
or more directors to constitute an executive committee, which committee, to the
extent provided in such resolution, shall have and exercise all of the authority
of the board of directors in the management of the corporation, except as
otherwise required by law. Vacancies in the membership of the committee shall be
filled by the board of directors at a regular or special meeting of the board of
directors. The executive committee shall keep regular minutes of its proceedings
and report the same to the board when required.
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these by-laws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
Section 2. Whenever any notice whatever is required to be given under the
provisions of the
8
<PAGE>
statutes or under the provisions of the articles of incorporation or these
by-laws, a waiver thereof in writing signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Section 2. The
board of directors at its first meeting after each annual meeting of
shareholders shall choose a president, one or more vice-presidents, a secretary
and a treasurer, none of whom need be a member of the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
9
<PAGE>
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the
10
<PAGE>
board of directors in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. He shall give, or cause to be
given, notice of all meetings of the shareholders and special meetings of the
board of directors, and shall perform such other duties as may be prescribed by
the board of directors or president, under whose supervision he shall be. He
shall have custody of the corporate seal of the corporation and he, or an
assistant secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The board of directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the
11
<PAGE>
board of directors, at its regular meetings, or when the board of directors so
requires, an account of all his transactions as treasurer and of the financial
condition of the corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates signed by the president or a vice-president and the secretary or an
assistant secretary of the corporation, and may be sealed with the seal of the
corporation or a facsimile thereof.
When the corporation is authorized to issue shares of more than one
class, every certificate shall set forth upon the face or back of such
certificate a statement of the designations, preferences, limitations and
relative rights of the shares of each class authorized to be issued, as required
by the laws of the State of Minnesota.
12
<PAGE>
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent, or registered by a registrar, other than the corporation itself or an
employee of the corporation. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession,
13
<PAGE>
assignment or authority to transfer, a new certificate shall be issued to the
person entitled thereto, and the old certificate cancelled and the transaction
recorded upon the books of the corporation.
14
<PAGE>
CLOSING OF TRANSFER BOOKS
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders, or shareholders entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the board of directors may provide
that the stock transfer books shall be closed for a stated period but not to
exceed, in any case, forty days. If the stock transfer books shall be closed for
the purpose of determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such books shall be closed for at least ten days,
immediately preceding such meeting. In lieu of closing the stock transfer books,
the board of directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than forty
days and, in case of a meeting of shareholders, not less than ten days prior to
the date on which the particular action requiring such determination of
shareholders is to be taken. If the stock transfer books are not closed and no
record date is fixed, the determination of shareholders entitled to notice of or
to vote at a meeting, or to receive payment of a dividend, the date on which
notice of the meeting is mailed or the date on which the resolution of the board
of directors declaring such dividend is adopted, as the case may be, shall be
the record date for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
15
<PAGE>
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Minnesota.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of the capital stock, subject to any provisions of the
articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose
16
<PAGE>
as the directors shall think conducive to the interest of the corporation, and
the directors may modify or abolish any such reserve in the manner in which it
was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Minnesota". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
17
<PAGE>
Section 1. These by-laws may be altered, amended, or repealed or new
by-laws may be adopted by the affirmative vote of a majority of the board of
directors at any regular or special meeting of the board.
After the adoption of the initial bylaws, the board shall not adopt,
amend, or repeal a bylaw fixing a quorum for meetings of shareholders,
prescribing procedures for removing directors or filling vacancies in the board,
or fixing the number of directors or their classifications, qualifications, or
terms of office, but may adopt or amend a bylaw to increase the number of
directors.
The shareholders shall have the right to change or repeal any by-laws
adopted by the directors.
18
<PAGE>
Exhibit 3.39
State of Florida
Department of State
I certify the attached is a true and correct copy of Articles of Organization
of GLOBAL MAILBOX EXPRESS, LLC, a limited liability company, organized under
the laws of the State of Florida, filed on September 9, 1996, as shown by the
records of this office.
The document number of this company is L96000000950.
Given under my hand and the
Great Seal of the State of Florida
at Tallahassee, the Capitol, this the
Ninth day of June, 1998
Sandra B. Mortham
Secretary of State
<PAGE>
ARTICLES OF ORGANIZATION
OF
GLOBAL MAILBOX EXPRESS. LLC
The undersigned. for the purpose of forming a limited liability
company under the Florida Limited Liability Company Act. F.S. Chapter 609.
hereby make, acknowledge, and file the following Articles of Organization.
ARTICLE I NAME
The name of the limited liability company shall be Global MailBox
Express. LLC ("Company").
ARTICLE II -- ADDRESS
The mailing address and street address of the principal office of the
Company shall be 4455 N.W. 73rd Avenue. Miami. Florida, 33166-6400.
AR77CLE ITT - DURATION
The company shall commence its existence on the date these articles of
organization are filed by the Florida Department of State. The Company's
existence shall terminate not later than August 23, 2196, unless the company
is earlier dissolved as provided for in these articles of organization.
ARTICLE IV - REGISTERED OFFICE AND AGENT
The name! and street address of the registered agent of the Company in
the State of Florida is CT Corporation. 1200 S. Pine Island Rd., Plantation.
Florida 33324.
ARTICLE V - CAPITAL CONTRIBUTIONS
The members of the Company shall contribute to the capital of the
Company the cash or property set forth in Exhibit "A".
ARTICLE VI - ADDITIONAL CAPITAL CONTRIBUTIONS
The Members shall contribute additional capital to the Company in such
amounts and at such times as Members holding Majority Interests shall determine
that additional capital is required. All such capital calls shall be reasonable
and reasonably related to the needs of the Company. The Members shall
contribute such additional capital in proportion to their respective Percentage
Interests.
Page 1 of 4
<PAGE>
ARTICLE VII - ADMISSION OF NEW MEMBERS
No additional members shall he admitted to the Company except with the
unanimous written consent of all the members of the Company and on such terms
and conditions as shall be determined by all the members. A member may transfer
its interest in the Company as set forth in the regulations of the Company, but
the transferee shall have no right to participate in the management of the
business and affairs of the Company or become a member unless all the other
members of the Company other than the member proposing to dispose of its
interest approve of the proposed transfer by unanimous written consent.
ARTICLE VIII - TERMINATION OF EXISTENCE
The Company shall be dissolved on the bankruptcy or dissolution of a
member or on the occurrence of any other event that terminates the continued
membership of a member in the Company, unless the business of the Company is
continued by the consent of all the remaining members, provided there are at
least two remaining members.
ARTICLE IX - MANAGEMENT
The Company shall be managed by the members in accordance with
regulations adopted by the members for the management of the business and
affairs of the Company. These regulations may contain any provision for the
regulation and management of the affairs of the Company not inconsistent with
law or these articles of organization. The names and address of the meff6ers of
the Company are:
NAME ADDRESS
Mail Boxes Etc. USA. Inc. 6060 Cornerstone Court West
San Diego. CA 92121
Attention: Anthony W. DeSio
SkyBox Services Corporation 4405 N W. 73rd Avenue
Miami. Florida 33166-6400
Attention: Albert P. Hernandez
IN WITNESS WHEREOF. the undersigned organizers haw made and subscribed
these articles of organization at Miami. Florida. on this 23rd day of August,
1996.
Page 2 of 4
<PAGE>
SKYBOX SERVICES
CORPORATION
By: /s/ Albert Hernandez
-------------------------------
Albert Hernandez,
President
IN WITNESS WHEREOF, the undersigned organizers have made and
subscribed these articles of organization at San Diego, California, on
this day of August, 1996.
MAIL BOXES ETC. USA, INC.
By: /s/ A.W. DeSio
------------------------------
A.W. ("Tony") DeSio,
President and Chief Executive Officer
AFFIDAVIT OF MEMBERSHIP AND CONTRIBUTIONS
The undersigned member or authorized representative of a member of Global
MailBox Express LLC. deposes and says:
1. The above named limited liability company has at least two
members.
2. The total amount of cash contributed by the members is
S400.000.00.
3. The value of property other than cash contributed by
members is of an indeterminate value, will not be counted
as capital contributions and will not affect equity
ownership, distribution of profits. or voting rights of the
Members. A description of the property is attached and made
a part hereto,
4. The total amount of cash or property anticipated to be
contributed by members is S400.000.00. This total includes
amounts from 2 and 3 above.
THE AFFIANT SAYS NOTHING FURTHER
Dated: August 29, 1996
SKYBOX SERVICES CORPORATION
By: /s/ Albert Hernandez
----------------------------------
Albert Hernandez, President
Page 3 of 4
<PAGE>
ACCEPTANCE OF REGISTERED AGENT
The undersigned. being the person named in the articles of
organization of Global MailBox Express, LLC as the registered agent of this
limited liability company, hereby consents to accept service of process for
the above stated company at the place designated in the articles of
organization, and accepts the appointment as registered agent and agrees to
act in this capacity. The undersigned further agrees to comply with the
provisions of all statutes relating to the proper and complete performance of
his or her duties, and is familiar with and accepts the obligations of the
position of registered agent.
CT CORPORATION
By: /s/ Tanya M. Villar
------------------------------
1200 S. Pine 131 Road
Plantation. Florida 33324
(800)89&9207
TANYA M. VILLAM
Special Assistant Secretary
Page 4 of 4
<PAGE>
Exhibit -A-
CAPITAL CONTRIBUTIONS TO GLOBAL MAIL BOX EXPRESS, LLC
<TABLE>
<CAPTION>
Members Capital Contributions Member's Percentage Interest
------- --------------------- ----------------------------
<S> <C> <C>
Mail Boxes Etc. USA. Inc. $ 204,000.00 51%
6060 Cornerstone Court West
San Diego, California 92121
SkyBox Services Corporation $ 196,000.00 49%
4405 N.W. 73rd Avenue
Miami, Florida 33166-6400
</TABLE>
Additional Non-Capital Contributions to Global Mail Box Express, LLC
In addition to the cash contributed to the initial capitalization of the
Company, the Members also contribute the following assets to the Company:
SkyBox Services Corporation
a) Software and source codes currently being used by SkyBox Services
Corporation for international mail and package forwarding;1
b) Operating systems and procedures for international mail and package
forwarding;
c) Potential tie-ins with existing SkyBox corporate marketing promotions such
as American Express, various banks, catalog companies, etc.;
d) Shared use of the existing Skybox hub in Miami. Florida; and
e) Shared use of SkyNet hubs in Miami, New York and Los Angeles on a temporary
basis, as Needed, when the Company expands into those markets.
Mail Boxes Etc. USA- Inc,
- --------
1 Any changes or enhancements to such software and any additional software
needed will be paid for and owned by Company. Any upgraddes to SkyBox or SkyNet
softweare will be provided to Company at no additional cost.
<PAGE>
a) MBE will promote the Company's services to its Master Licensees, Arez-
Franchisees, and individual Franchise Owners worldwide by, among other
things, designating Company as its preferred provider of international mail
and package forwarding services; and
b) The goodwill associated with access the MBE Network
The Members agree that these additional non-capital contributions are or
indeterminate value will not be counted as capital contributions and will not
affect equity ownership, distribution or profits, or voting rights of the
Members In addition. all tangible assets. above. brought to the Company will
remain property of the Company upon withdrawal or termination of membership of
any Member.
Any expenses incurred by the Members prior to the formation of the Company are
the responsibility of the Members incurring such expenses and will not be
reimbursed by any other Member or the Company-. nor will such incurred expenses
affect ownership interest. distribution of profits. or voting rights in the
Company
<PAGE>
Exhibit 3.40
OPERATING AGREEMENT
FOR
GLOBAL MAILBOX EXPRESS, LLC,
A FLORIDA LIMITED LIABILITY COMPANY
This Operating Agreement (this "Agreement"), is made as of July 1,
1996, by and among the parties listed an The signature pages hereof
(collectively referred to as the "Members" or, individually as a "Member"), with
reference to the following facts:
A. The Members have filed Articles of Organization (the "Articles") for
Global MailBox Express, LLC (the "Company"), a limited liability company under
the laws of the State of Florida, with the Florida Secretary of State,
B The Members desire to adopt and approve an operating agreement for
the Company under the Florida Limited Liability Company Act (the "Act").
NOW, THEREFORE, the Members by this Agreement set forth the operating
agreement for the Company upon the terms and subject to the conditions of this
Agreement.
ARTICLE I
ORGANIZATIONAL MATTERS
1.1 Name. The name of the Company shall be "Global MailBox Express, LLC," The
Company may conduct business under that name or any other name approved by the
Members.
1.2 Term. The term of the Company commenced as of the date of the filing of the
Articles and unless sooner terminated under Section 9.1, shall terminate not
later than July 1, 2196, unless earlier dissolved as provided for in the
Articles of Organization.
1.3 Office and Agent. The Company shall continuously maintain an office and
registered agent in the State of Florida as required by the Act. The principal
office of the Company shall be at 4405 N.W. 73rd Avenue, Miami, Florida,
33166-6400, or such location as the Members may determine. The registered agent
shall be as stated in the Articles or as otherwise determined by the Members.
1.4 Business of the Company. Notwithstanding the purpose of The Company which is
described in the Articles, the Company shall not engage in any business other
than the following without the consent of all of the Members:
(a) the business of international mail and package forwarding; and
(b) such other activities directly related to the foregoing
business as may be necessary or advisable in the reasonable opinion of
the Members to further such business.
Page 1 of 13
<PAGE>
ARTICLE 11
CAPITAL CONTRIBUTIONS
2.1 Capital Contributions. Each Member shall make an initial cash
contribution to the capital of the Company in the amount shown opposite the
Member's name on Exhibit A attached hereto, Except as provided in this
Agreement, no Member may withdraw it or its capital contribution.
2.2 Capital Accounts. The Company shall establish an individual capital
account ("Capital Account") for each Member. The Company shall determine and
maintain each Capital Account in accordance with Treasury Regulations Section
1,704-1(b)(2)(iv), its successor, or other relevant law. Upon a valid transfer
of a Member's interest in the Company ("Membership Interest") in accordance with
Article V1, such Member's Capital Account shall carry over to the new owner.
2.3 No Interest. The Company shall not pay any interest on capital
contributions.
2.4 Additional Capital Contributions. The Members shall contribute
additional capital to the Company in such amounts and at such times as Members
holding a Majority Interest shall determine that additional capital is required.
All such capital calls shall be reasonable and reasonably related to the needs
of the Company. The Members shall contribute such additional capital in
proportion to their respective Percentage Interests. Each Member shall have
fifteen (15) days from the date such notice is given to contribute its share of
the additional capital to the Company. Each Member shall receive a credit to its
Capital Account in the amount of any additional capital which he or she
contributes to the Company.
2.5 Failure to Make Contributions. If a Member does not timely
contribute capital when required, that Member shall be in default under this
Agreement. In such event, the non-. defaulting Members shall send the defaulting
Member written notice of such default, giving the defaulting Member thirty (30)
days from the date such notice is given to contribute the entire amount of it or
its required capital contribution. If the defaulting Member does not contribute
its required capital to the Company within said thirty (30) day period, those
non-defaulting Members who hold a majority of the Percentage Interests held by
all non-defaulting Members may elect any one or more of the following remedies:
A. The Percentage Interests shall be adjusted, in which even each
Member's Percentage Interest shall be a fraction, the numerator of which
represents the aggregate amount of such Member's capital contributions and the
denominator of which represents the sum of all Member' capital contributions.
B - The non-defaulting Members who hold a majority of the Percentage
Interests held by all non-defaulting Members may dissolve tile Company, in which
event the Company shall be
Page 2 of 13
<PAGE>
wound-up, liquidated and terminated pursuant to Article X, and the event will
be treated as a Dissolution Event and Article VII will also apply,
C, The defaulting Members shall have no right to receive any
distributions from the Company, until the non-defaulting Members have first
received distributions in an amount equal to the additional capital contributed
by each non-defaulting Member to the Company plus a cumulative, non-compounded
return thereon at the rate of ten percent (10%) per annum,
D. The defaulting Member shall lose its voting and approval rights
under the Act, the Articles and this Agreement until such time As the
defaulting Member cures the default.
"Percentage Interest" shall mean the percentage of a Member set forth
opposite the name of such Member under the column "Member's Percentage
Interest" in Exhibit A hereto, as such percentage may be adjusted from time to
time pursuant to the terms of this Agreement. "Majority Interests" shall mean
those Members who hold a majority of the Percentage Interests which all Members
hold.
Each Member acknowledges and agrees that (i) a default by any Member
in making a required capital contribution will result in the Company and the
non-defaulting Members incurring certain costs and other damages in an amount
that would be extremely difficult or impractical to ascertain and (ii) the
remedies described in this Section 2.5 bear a reasonable relationship to the
damages which the Members estimate may be suffered by the Company and the
non-defaulting Members by reason of the failure of a defaulting Member be
suffered by the Company and the non-defaulting Members by reason of the failure
of a defaulting Member.
ARTICLE III
MEMBERS
3 1 Limited Liability. Except as expressly set forth in this Agreement
or required by law, no Member shall be individually or personally liable for any
debt, obligation, or liability of the Company, whether that liability or
obligation arises in contract, tort, or otherwise.
3.2 Admissions of Additional Members. Additional Members may be
admitted only with the approval of all Members. Additional Members will
participate in "Net Profits", "Net Losses" (as such Terms are defined in Section
5.1), and distributions of the Company on such terms as are determined by the
Members. Exhibit A shall be amended upon the admission of an Additional Member
to set forth such Member's name and capital contribution,
3.3 Payments to Members. Except as specified in this Agreement or
pursuant to a transaction permitted by Section 4.6, no Member or person or
entity controlled by, controlling or under common control with the Member (each
such person or entity is defined as an "Affiliate"), is entitled to remuneration
for services rendered or goods provided to the Company. In addition, the Company
shall not reimburse the Members and their Affiliates for organization expenses
incurred to form the
Page 3 of 13
<PAGE>
Company, prepare the Articles and this Agreement or pre-formation expenses.
ARTICLE IV
MANAGEMENT AND CONTROL OF THE COMPANY
4.1 Management and Powers. In entering into this Agreement it is the
intent of each Member to engage in the management of the Company; however, all
management and operational decisions will be made by approval of Members
holding Majority Interests, In addition, Members holding Majority Interests may
temporarily delegate any of such management and operational authority as such
Members deem appropriate.
4.2 Limitations on Power of Members. Notwithstanding any other
provision of this Agreement, no debt or liability may be contracted on behalf
of the Company without the approval of Members holding Majority Interests, but
Members holding Majority Interests may delegate any such contractual authority
as such Members deem appropriate. Additionally, no Member shall have authority
to cause the Company to engage in the following transactions without first
obtaining the approval of Members holding seventy five percent (75%) of the
Membership Interests:
(i) The sale, exchange or other disposition of all, or
substantially all, of the Company's assets occurring as part of a single
transaction or plan, or in multiple transactions over a 6 month period, except
in the orderly liquidation and winding up of the business of the Company upon
its duly authorized dissolution,
(ii) The merger of the Company with another limited liability
company or corporation, general partnership, limited partnership or other
entity (except that any act which would cause a Member to incur liability for
the obligations of the Company or its successor shall also require the consent
of such Member).
(iii) An alteration Of the authorized businesses of the
Company.
(iv) Any act which would make it impossible to carry on the
ordinary business of the Company.
(v) The confession of a judgement against the Company.
(vii) In addition, subject to Section 4.5, no Member may
engage in any activity detrimental to the success of the Company, nor may any
Member engage in any activity which is a conflict of interest with business
performed by Company.
4.3 Member Approval. No annual or regular meetings of the members are
required
Page 4 of 13
<PAGE>
to be held, However, if such meetings are held, such meetings shall be noticed,
held and conducted pursuant to the Act. In any instance in which the approval
of the Members is required under this Agreement, such approval may be obtained
in any manner permitted by the Act. Unless otherwise provided in this
Agreement, approval of the Members shall mean the approval of Members who hold
a majority of the Membership Percentage Interests.
4.4 Devotion of Time, Each Member shall devote whatever time or efforts
it deems appropriate for the furtherance of the Company's business.
Members and their Affiliates may engage or invest in any activity, including
without limitation those that might be in direct or indirect competition with
the Company. Neither the Company nor any Member shall have any right, in or to
such other activities or to the income or proceeds derived therefrom. No Member
shall be obligated to present any investment opportunity to the Company, even if
the opportunity is of the character that, if presented to the Company, could be
taken by the Company. Each Member shall have the right to hold any investment
opportunity for its own account or to recommend such opportunity to persons
other than the Company. The Members acknowledge that certain Members and their
Affiliates own and/or manage other businesses, including businesses that may
compete with the Company and for the Members' time. Each Member hereby waives
any and all rights and claims which it may otherwise have against the other
Members and their Affiliates as a result of any of such activities.
Notwithstanding the foregoing, and unless waived in writing by Members holding
Majority Interests, SkyBox may not expand to serve any new markets or new
distribution channels for mail and package forwarding services unless and until
the Company shows six consecutive profitable months attributable to the Company
hub serving the market to which SkyBox would like to enter. The restrictions in
this paragraph do not, apply, however, to Latin America or the Caribbean.
In addition, during the term of the Membership of SkyBox in Company and for one
(1) year thereafter, SkyBox, agrees that for any current and future mail and
package forwarding business which SkyBox conducts independently of the Company,
the following terms shall apply:
a. SkyBox may not utilize retail outlets as a means of distribution which
could reasonably be determined to be competing with the Company and the
MBE Network;
b. The mail and packages forwarded by SkyBox must be delivered directly to
a home or place of business with the exception of occasional pick-ups
by clients of SkyBox from SkyBox offices; and
c. Any prices charged to customers of the Company shall be at least twenty
percent (20%) less than prices charged to SkyBox customers.
Manager has had discussions with certain co-marketing partners such as AT&T,
Diners
Page 5 of 13
<PAGE>
Club and several airlines that may result in the establishing of a proprietary
brand name product for a co-marketing partner, which SkyBox would operate.
These agreements would not be considered Competitive to MBE or to the Company,
provided thc mail delivery is exclusively to customers' business premises or
home addresses and not to retail outlets and, provided further, that the
Company is given an option to participate where it is reasonable to do so.
Manager will use good faith efforts to include Company, Company's distribution
system and Company's services in any such co-marketing programs,
Company acknowledges that SkyBox has entered into agreements with
certain courier companies whose primary business is delivery of priority mail
and parcels to homes and businesses. These agreements provide for the
distribution of materials promoting SkyBox service in conjunction with their
delivery services to clients' homes and businesses. Company acknowledges that
such promotional materials may be distributed in the offices of these courier
companies SkyBox agrees to use its best efforts to prohibit such courier
companies or any SkyBox agent from marketing SkyBox services to any retail
outlets which could compete with MBE Centers in providing services similar to
those offered by the Company. A retail outlet is defined as any facility which
customers visit for the purpose of picking up mail or packages.
Any customers and customer lists of the Company belong solely to the Company
and those customers may not be solicited by or marketed to by any other entity,
including SkyBox, without the written approval of Members holding Majority
Interests.
4.6 Transactions between the Company and the Members. Notwithstanding
that it may constitute a conflict of interest, the Members and their Affiliates
may engage in any transaction with the Company so long as such transaction is
not expressly prohibited by this Agreement and so long as the terms and
conditions of such transaction, on an overall basis, are Fair and reasonable to
the Company and are at least as favorable to the Company as those that are
general available from persons capable of similarly performing them, as long as
the Members holding a majority of the Membership Interest approve the
transaction in writing.
4.7 Operations Information Developed or Used by Company. Any and all
systems and procedures developed for or used by Company will be owned by the
Company and are acknowledged by all Members to be Company assets. Such items
include, without limitation, any operations manuals, software, internal
operating procedures, and marketing materials.
ARTICLE V
ALLOCATIONS OF NET PROFITS AND NET LOSSES AND DISTRIBUTIONS
5.1 Allocations of Net Profit and Net Loss.
A. Net Loss. Net Loss shall bc allocated to the Members in
proportion to their Membership Percentage Interests.
Page 6 of 13
<PAGE>
B. Net Profit. Net Profit shall be allocated to the Members in
Proportion to their Membership Percentage Interests.
5.2 Distribution of Assets by the Company. Subject to applicable law
and any limitations contained elsewhere in this Agreement, Members holding a
Majority Interests may elect from time to time to cause the Company to make
distributions. Distributions shall be made either to the Members in proportion
to their unreturned capital contributions until each Member has recovered its
capital contributions, or to the Members in proportion to their Membership
Interests, at the option of Company.
ARTICLE V1
TRANSFER AND ASSIGNMENT OF INTERESTS
6.1 Transfer and Assignment of Interests. No Member shall be entitled
to transfer, assign, convey, sell, encumber or in any way alienate all or any
part of its Membership Interest (collectively, "transfer") except with, the
prior approval of all Members, which approval may be given or withheld in the
sole discretion of the Members.
6.2 Substitution of Members. A transferee of a Membership Interest
shall have the right to become a substitute Member only if (i) consent of the
Members is given in accordance with Section 6.1, (ii) such substitute Member
executes an instrument satisfactory to the Members accepting and adopting the
terms and provisions of this Agreement, and (iii) such Substitute Member pays
any reasonable expenses in connection with its admission as a new Member. The
admission of a substitute Member shall not release the Member who assigned the
Membership Interest from any liability that such Member may have to the Company.
6.3
Transfers in Violation of this Agreement and transfers of Partial Membership
Interests. Upon a transfer in violation of this Article VI, the transferee shall
have no right to vote or participate in the management of the Company or to
exercise any rights of a Member. Such transferee shall only be entitled to
receive the share of the Company's Net Profits, Net Losses and distributions of
the Company's assets to which the transferor would otherwise be entitled.
Notwithstanding the immediately preceding sentences, if, in the determination of
the remaining Members, a transfer in violation of this Article VI would cause
the termination of the Company under the Code, in the. sole discretion of the
remaining; Members, the transfer shall be null and void.
ARTICLE VII
CONSEQUENCES OF DISSOLUTION EVENTS AND
TERMINATION OF MEMBERSHIP INTEREST
7.1 Dissolution Event. Upon the occurrence of the withdrawal,
resignation, bankruptcy or dissolution of any Member ("Dissolution Event"), the
Company, shall dissolve unless all of the remaining Members ("Remaining
Members") consent within ninety
Page 7 of 13
<PAGE>
(90) days of the Dissolution Event to the continuation of the business of the
Company. If the Remaining Members so consent, the Company and/or the Remaining
Members shall have the right to purchase, and if such right is exercised, the
Member (or it or its legal representative) whose actions or conduct resulted in
the Dissolution Event ("Former Member") shall sell the Former Member's
Membership Interest ("Former Member's Interest") as provided in this Article
VII.
7.2 Withdrawal. Notwithstanding Section 7.1, upon, the withdrawal by a
Member such Member shall be treated as a Former Member, and, unless the Company
dissolves as a result of such withdrawal, the Company and/or the Remaining
Members shall have the right to purchase, and if such right is exercised, the
Former Member shall sell, the Former Member's Interest as provided in this
Article VII.
7.3 Purchase Price. The purchase price for the Former Member's Interest
shall be the fair market value of the Former Member's Interest as determined by
an appraisal of three appraisers selected as follows: one appraiser selected by
the Former Member, one appraiser selected by Remaining Members holding a
majority of the remaining Membership Interests, and a third appraiser jointly
selected by the first two appraisers. In the event that the three appraisers are
unable to unanimously agree on an appraisal, an agreement by any two appraisers
shall establish the purchase price of the Former Member's Interest. In the event
that no two appraisers agree, the Members shall begin the appraisal process once
again. The Company and the Former Member shall each pay one-half of the total
cost of the appraisal. Notwithstanding the foregoing, if the Dissolution Event
results from a breach of this Agreement by the Former Members, the purchase
price shall be reduced by an amount equal to the damages suffered by the Company
or the Remaining Members as a result of such breach.
ARTICLE VIII
ACCOUNTING, RECORDS, REPORTING BY MEMBERS
8.1 Books and Records, The books and records of the Company shall be
kept in accordance with the accounting methods followed for federal income tax
purposes. The Company shall maintain at its principal office in Florida, or at a
place designated by the Members, all of the following:
A A current list of the full name and last known business or residence
address of each Member, together with the capital contributions, capital account
and Membership Interest of each Member;
B A copy of the Articles and any and all amendments thereto together
with executed copies of any powers of attorney pursuant to which The Articles or
any amendments thereto have been executed;
C. Copies of the Company's federal, state, and local income tax or
information returns and reports, if any, for the six (6) most recent taxable
years;
Page 8 of 13
<PAGE>
D. A copy of this Agreement and any and all amendments thereto together
with executed copies of any power of attorney pursuant to which this Agreement
or any amendments thereto have been executed;
E. Copies of the financial statements of the Company, if any, for the
six (6) most recent fiscal years; and
F. The Company's books and records as they relate to the internal
affairs of the Company for at least the current and past four (4) fiscal years.
8,2 Reports. The Company shall cause to be filed, in accordance with
the Act, all reports and documents required to be filed with any governmental
agency both foreign and domestic. The Company shall cause to be prepared at
least annually information concerning the Company's operations necessary for the
completion of the Member's federal and state income tax returns. The Company
shall send or cause to be sent to each Member within ninety (90) days after the
end of each taxable year (i) such information as is necessary to complete the
Members' federal and state income tax or information returns and (ii) a copy of
the Company's federal, state and local income tax or information returns for the
year.
8.3 Bank Accounts. The Members shall amintain the funds of the Company
in one or more, separate bank accounts in the name of the Company, and shall not
permit the funds of the Company to be commingled in any fashion with the funds
of any other person. Any Member, acting alone, is authorized to endorse checks,
drafts, and other evidences of indebtedness made payable to the order of the
Company, but only for the purpose of depositing into the Company's accounts. All
checks, drafts, and other instruments obligating the Company to pay money must
be signed on behalf of the Company by Members holding Majority Interests or as
delegated by such Members.
8.4 Tax Matters for the Company. MBE is designated, as "Tax Matters
Partner" (as defined in Code Section 6231, its successor or other relevant law),
to represent the Company (at the Company's expense) in connection with all
examination of the Company's affairs by tax authorities and to expend Company
funds for professional services and costs associated therewith.
ARTICLE IX
DISSOLUTION AND WINDING UP
9.1 Conditions of Dissolution, The Company shall dissolve upon the
occurrence of any of the following events:
A. Upon the happening of any event of dissolution specified in the
Articles;
B. Upon the entry of a decree of judicial dissolution pursuant to
Florida law;
Page 9 of 13
<PAGE>
C. Upon the vote of Members holding at least fifty one (5 1%) percent
of the Membership Percentage Interests, however, dissolution pursuant to such
vote may not occur until after August 1, 1998;
D. The occurrence of a Dissolution Event and the failure of the
Remaining Members to consent in accordance with Section 7.1 to continue the
business of the Company within ninety (90) days after the occurrence of such
event, or
E. The sale of all or substantially all of the assets of Company.
In the event that Company is dissolved under the terms of Section 9.1.C., above,
the Members holding Majority Interests may consent within ninety (90) days of
the announcement of such dissolution to the continuation of the business of the
Company. In such case, the Members holding Majority Interests will purchase the
minority interests in the Company according to the formula set forth in Section
7.3.
9.2 Rights Upon Dissolution. SkyBox shall prepare and deposit with
Company, and shall keep current, copies of software and all applicable
operations manuals relevant to providing the services (Collectively the
"Operations Information"). Upon dissolution, the following terms apply:
a, All customers and the ownership of any and all
customer lists revert solely to Members holding
Majority Interests and may not be used by any other
Members or entities for any reason whatsoever without
the written consent of such Members holding Majority
Interests;
b The ownership of any software developed by the
Company and all rights to utilize software required
to conduct company business revert solely to Members
holding Majority Interests,
c. The ownership of all USPS "caller boxes" reverts
solely to Members holding Majority Interests,
d. Members holding Majority Interest shall have
unrestricted access to the Operations Information to
enable it to service the MBE Network;
e. Members holding Majority Interests shall have the
right but not the obligation to take over and operate
that part of Company's or SkyBox's operations serving
the MBE Network and Company, and SkyBox shall
cooperate fully with MBE to ensure that the portion
of the MBE Network which is contracting with the
Company receives the services uninterrupted pending
transition to the new provider of the Services;
f. Members holding Majority Interests are granted the
right but not the
Page 10 of 13
<PAGE>
obligation to pick up packages for customers of the
MBE Network from the Company or SkyBox Hub locations
or to have Company or SkyBox deliver the packages to
a separate location designated byMBE for a period of
one year, and payments by MBE shall equal the
reasonable cost for such services: and
g. Company or SkyBox shall deliver mail and packages for
MBE Customers which are in transit at the time of
termination and MBE shall have the option to require
SkyBox to continue offering the Services to customers
of the MBE Network pursuant to the terms of this such
customer's agreements with Company for a reasonable
period of time, not to exceed 90 days.
9.3 Winding Up. Upon the dissolution of the Company, the Company's
remaining assets shall be disposed of and its affairs wound up. Members holding
Majority Interests are granted the right to purchase such remaining assets at
market value. The Company shall give written notice of the commencement of the
dissolution to all of its known creditors.
9.4 Order of Payment of Liabilities Upon Dissolution, After determining
that all the known debts and liabilities of the Company have been paid or
adequately provided for, the remaining assets shall be distributed to the
Members in accordance with their positive cpaital account balances, after taking
into account income and loss allocations for the Company's taxable year during
which liquidation occurs.
9 5 Limitations on Payment of Liabilities Upon Dissolution. Except as
otherwise specifically provided in this Agreement, each Memberr shall be
entitled to look only to the assets of the Company for the return of its
positive Capital Account balance and shall have no recourse for its Capital
Contribution and/or share of Net Profits against any other Member except as
provided in Article X.
9.6 Certificates, The Company shall file with the Florida Secretary of
State a Certificate of Dissolution upon the dissolution of the Company and
Certificate of Cancellation upon the completion of the winding up of the
Company's affairs.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification of Agents. The Company shall indemnify any Member
and may, upon vote of Members with majority Membership Interests, 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 by reason of the
fact that he, she or it is or was a Member, officer, employee or other agent of
the Company or that, being or having been such a Member, officer, employee or
agent, he, she or it is or was serving at the request of the Company as a
manager,
Page 11 of 13
<PAGE>
director, officer, employee or other agent of another limited liability company,
corporation, partnership, joint venture, or other enterprise (all such persons
being referred to hereinafter as an "agent"), to the fullest extent permitted by
applicable law in effect on the date hereof and to such greater extent as
applicable law may hereafter from time to time permit.
ARTICLE XI
MISCELLANEOUS
11.1 Complete Agreement. This Agreement and the Articles and the
parties' Management Agreement constitute the complete and exclusive statement of
agreement among the Members with respect to the subject matter herein and
therein and replace and supersede all prior written and oral agreements among
the Members. To the extent that any provision of the Articles conflict with any
provision of this Agreement, the Articles shall control.
11.2 Binding Effect. Subject to the provision of this Agreement
relating to transferability, this Agreement will be binding upon and inure to
the benefit of the Members, and their respective successors and assigns.
11.3 Interpretation. All pronouns shall be deemed to refer to the
masculine, feminine, or neuter, singular or plural, as the context in which they
are used may require. All headings herein are inserted only for convenience and
ease of reference and are not to be considered in the interpretation of any
provision of this Agreement. Numbered or lettered articles, sections and
subsections herein contained refer to articles, sections and subsections of this
Agreement unless otherwise expressly stated. In the event any claim is made by
any Member relating to any conflict, omission or ambiguity in this Agreement, no
presumption or burden of proof or persuasion shall be implied by virtue of the
fact that this Agreement was prepared by or at the request of a particular
Member or its counsel,
11.4 Arbitration. Except as otherwise provided in this Agreement, any
controversy between the parties arising out of this Agreement which cannot be
resolved first by good faith negotiations and mediation shall be submitted to
the American Arbitration Association for arbitration in San Diego, California.
The costs of the arbitration, including any American Arbitration Association
administration fee, the arbitrator's fee, and costs for the use of facilities
during the hearings, shall be borne equally by the parties to the arbitration.
Attorneys' fees may be awarded to the prevailing or most prevailing party at the
discretion of the arbitrator. The arbitrator shall not have any power to alter,
amend, modify or change any of the terms of this Agreement nor to grant any
remedy which is either prohibited by the Terms of this Agreement, or not
available in a court of law. In addition, the arbitrator shall have no power or
authority to aware punitive, consequential or incidental damages.
11.5 Severability. If any provision of this Agreement or the
application of such provision to any person or circumstance shall be held
invalid, the remainder of this Agreement or the application of such provision to
persons or circumstances other than those to which it is held invalid shall not
be affected thereby.
<PAGE>
11.6 Notices, Any notice to be given or to be served upon the Company
or any party hereto in connection with this Agreement must be in writing (which
may include facsimile) and will be deemed to have been given and received when
delivered to the address specified by the party to receive the notice. Such
notices will be given to a Member at the address specified in Exhibit A hereto.
Any party may, at any time by giving five (5) days' prior written notice to the
other Members, designate any other address in substitution of the foregoing
address to which such notice will be given.
11.7 Amendments. All amendments to this Agreement will be in writing
and signed by all of the Members.
11.8 Remedies Cumulative. The remedies under this Agreement are
cumulative and shall not exclude any other remedies to which Any person may be
lawfully entitled.
11 9 Confidential Information. SkyBox and MBE shall preserve in strict
confidence any confidential or proprietary information each obtains from the
other and agrees to refrain from disclosing such information to any other person
or business organizations. Subject to the terms of Section 9.2, upon termination
of this Operating Agreement, withdrawal of SkyBox or MBE from Company, or upon
dissolution of Company, SkyBox and MBE shall return all such information to the
other. SkyBox agrees that it will maintain the absolute confidentiality of any
customer list of MBE, MBE Master Licensees, and any list of MBE Centers,
disclosing same to its employees only to the extent necessary for compliance
with this Agreement to the extent necessary to operate Company. SkyBox. agrees
that it will not use any customer lists or such other confidential information
in any other business or in any manner not specifically authorized or approved
in writing by Company.
IN WITNESS WHEREOF, all of the Members of Global MailBox Express, LLC,
a Florida Limited Liability Company, have executed this Agreerment, effective as
of the date written above.
Member MAIL BOXES ETC. USA, INC.
- ------
By: /s/ A.W. DeSio
------------------------------
A.W. DeSio
Member SKYBOX SERVICES CORPORATION
- ------
By: /s/ Albert Hernandez
------------------------------
Albert Hernandez, President
<PAGE>
Exhibit 3.41
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
THE H. H. WEST COMPANY
THE H. H. WEST COMPANY, a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is THE H. H. WEST COMPANY and the
name under which the corporation was originally incorporated
is The H. H. West Company. The date of filing of its original
Certificate of Incorporation with the Secretary of State was
March 15, 1995.
2. This Amended and Restated Certificate of Incorporation
restates and integrates and further amends the Certificate of
Incorporation of this corporation in its entirety.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended and restated hereby
to read as herein set forth in full:
l. The name of the corporation is US OFFICE PRODUCTS,
MILWAUKEE DISTRICT, INC.
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation
Law of Delaware and in general, to possess and exercise all
the powers and privileges granted by the General Corporation
Law of Delaware or by any other law of Delaware or by this
Certificate of Incorporation together with
<PAGE>
any powers incidental thereto, so far as such powers and
privileges are necessary or convenient to the conduct,
promotion or attainment of the business or purposes of the
corporation.
4. The total number of shares of stock which the corporation
shall have authority to issue is: One Thousand (1,000) shares
of Common Stock; all of such shares shall be without par
value.
5. The corporation is to have perpetual existence.
6. The corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
7. 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 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 any improper
personal benefit.
4. This Amended and Restated Certificate of Incorporation was duly
adopted by unanimous written consent of the stockholders in accordance
with the applicable provisions of Section 228, 242 and 245 of the
General Corporation Law of the State of Delaware.
5. This Amended and Restated Certificate of Incorporation shall be
effective on October 1, 1998.
<PAGE>
IN WITNESS WHEREOF, said THE H.H. WEST COMPANY has caused this Amended and
Restated Certificate of Incorporation to be signed by Mark D. Director, its Vice
President, this Twenty-Fifth day of September, 1998.
THE H.H. WEST COMPANY
By: /s/ Mark D. Director
-----------------------------------------
Vice President
<PAGE>
Exhibit 3.42
US OFFICE PRODUCTS, MILWAUKEE DISTRICT, INC.
* * * * *
AMENDED AND RESTATED
BY-LAWS
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Milwaukee, State of Wisconsin at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the
notice of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of Delaware, as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year1999,
shall be held during the first week of June at 10:00 a.m. or at such other date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than 10 nor more than 60 days before the date of the meeting.
Section 4. 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
<PAGE>
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board
of directors, or at the request in writing of stockholders owning a majority
in amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than 10 nor more than 60 days before the date
of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present
or represented at any meeting of the stockholders, the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have 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 such adjourned meeting at which a quorum shall be present or represented
any business may be transacted which might have been transacted at the
meeting as originally notified. 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 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or
of the certificate of incorporation, a different vote is required in which
case such express provision shall govern and control the decision of such
question.
<PAGE>
Section 10. 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, but no proxy shall be
voted on after three years from its date, unless the proxy provides for a
longer period.
Section 11. 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 thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented
in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be 3. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each
director elected shall hold office until his successor is elected and
qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the
next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then
an election of directors may be held in the manner provided by statute. If,
at the time of filling any vacancy or any newly created directorship, the
directors then in office shall constitute less than a majority of the whole
board (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least ten percent of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to
be held to fill any such vacancies or newly created directorships, or to
replace the directors chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such
<PAGE>
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.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of
the stockholders to fix the time or place of such first meeting of the newly
elected board of directors, or in the event such meeting is not held at the
time and place so fixed by the stockholders, the meeting may be held at such
time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 10 days' notice to each director, either personally or by mail or by
facsimile communication; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors unless the board consists of only one director; in which case
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of the sole director.
Section 8. At all meetings of the board, a majority of directors shall
constitute a quorum for the transaction of business and the act of a majority
of the directors present at any meeting at which there is a quorum shall be
the act of the board of directors, except as may be otherwise specifically
provided by statute or by the certificate of incorporation. If a quorum shall
not be present at any meeting of the board of directors the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. 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 or of any committee thereof may be
taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the board or committee.
<PAGE>
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting
of the board of directors, or any 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 such participation in a
meeting shall constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board 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.
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 the
power or authority in reference to the following matters: (i) approving or
adopting, or recommending to the stockholders, any action or matter expressly
required by the General Corporation Law of Delaware to be submitted to
stockholders for approval or (ii) adopting, amending or repealing any by-law
of the corporation. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the
board of directors.
Section 12. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the
authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the board of
directors and may be paid a fixed sum for attendance at each meeting of the
board of directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee meetings.
<PAGE>
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares
entitled to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed
to such director or stockholder, at his address as it appears on the records
of the corporation, with postage thereon prepaid, and such notice shall be
deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by facsimile
telecommunication.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of
incorporation or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurers. Any number of offices may be
held by the same person, unless the certificate of incorporation or these
by-laws otherwise provide.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
<PAGE>
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of
the corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board
of directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be
more than one vice-president, the vice-presidents in the order designated by
the directors, or in the absence of any designation, then in the order of
their election) shall perform the duties of the president, and when so
acting, shall have all the powers of and be subject to all the restrictions
upon the president. The vice-presidents shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings
of the meetings of the corporation and of the board of directors in a book to
be kept for that purpose and shall perform like duties for the standing
committees when required. He shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the board of directors,
and shall perform such other duties as may be prescribed by the board of
directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring
it and when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The board of directors may give
general authority to any other officer to affix the seal of the corporation
and to attest the affixing by his signature.
<PAGE>
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election)
shall, in the absence of the secretary or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the secretary
and shall perform such other duties and have such other powers as the board
of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the board of
directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors,
at its regular meetings, or when the board of directors so requires, an
account of all his transactions as treasurer and of the financial condition
of the corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and
with such surety or sureties as shall be satisfactory to the board of
directors for the faithful performance of the duties of his office and for
the restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control
belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer
and shall perform such other duties and have such other powers as the board
of directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. 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 or vice-chairman of the board
of directors, or the president or a vice-president, and by the treasurer- or
an assistant treasurer, or the secretary or an assistant secretary of the
corporation.
<PAGE>
Section 2. Any of or all the signatures on a certificate may be
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 were such officer, transfer agent or registrar at the date of
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any
certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates
or uncertificated shares, the board of directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall
be the duty of the corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon
its books. Upon receipt of proper transfer instructions from the registered
owner of uncertificated shares such uncertificated shares shall be cancelled
and issuance of new equivalent uncertificated shares or certificated shares
shall be made to the person entitled thereto and the transaction shall be
recorded upon the books of the corporation.
FIXING RECORD DATE
Section 5. 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.
A
<PAGE>
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.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and
shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in shares of
the capital stock, subject to the provisions of the certificate of
incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the corporation, or for such
other purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons
as the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be the last Saturday
in April.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by
the certificate of incorporation it shall not divest or limit the power of
the stockholders to adopt, amend or repeal by-laws.
<PAGE>
Exhibit 3.43
ARTICLES OF RESTATEMENT
WITH CERTIFICATE FOR
RESTATED ARTICLES OF INCORPORATION
(STOCK CORPORATIONS)
ARTICLES OF RESTATEMENT OF
J.H. WHITLEY CO., INC.
ONE
The name of the corporation is: J.H. WHITLEY CO., INC.
TWO
The Articles of Incorporation are amended and restated in their entirety as
follows:
1. The name of the corporation is: US Office Products,
Mid-Atlantic District, Inc.
2. The number and class of shares the corporation is authorized
to issue is: 1,000 shares of common stock, without par value.
3. The corporation is organized for the purpose of engaging in
all lawful corporate activities authorized by the laws of the
Commonwealth of Virginia.
4. The existence of the corporation shall be perpetual.
THREE
The restatement and amendments were submitted to the shareholders by the Board
of Directors for approval, and the shareholders approved such restatements and
amendments .
<PAGE>
Notice accompanied by a copy of the restatement identifying the amendments to
be made was given to each shareholder in accordance with the provisions
of Chapter 9 of Title 13.1 of the Code of Virginia.
A quorum existed for each voting group entitled to vote separately on
the restatement and amendments.
IN WITNESS WHEREOF, said J.H. Whitley Co., Inc. has caused this Amended and
Restated Certificate of Incorporation to be signed by Kathleen M. Delaney, its
Vice President, this Twenty-Fifth day of September, 1998.
J. H. WHITLEY CO., INC.
By: /s/ Kathleen M. Delaney
--------------------------
Vice President
<PAGE>
Exhibit 3.44
US OFFICE PRODUCTS, MID-ATLANTIC DISTRICT, INC.
* * * * *
AMENDED AND RESTATED
B Y L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in Richmond,
Virginia.
Section 2. The corporation may also have offices at such other places
both within and without the State of Virginia as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of
directors shall be held in Newport News, State of Virginia, at such place as may
be fixed from time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held on the last week of June at 10:00 a.m., at which they shall
elect by a
<PAGE>
plurality vote a board of directors, and transact such other business as may
properly be brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
date, time and place of the meeting shall be delivered not less than ten nor
more than sixty days before the date of the meeting, either personally or by
mail, by or at the direction of the president, the secretary, or the officer or
persons calling the meeting, to each shareholder of record entitled to vote at
such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Virginia as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the chairman of the board of directors, the
president, or the board of directors.
Section 3. Written or printed notice of a special meeting stating the
date, time and place of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than ten nor more than sixty days
before the date of the
<PAGE>
meeting, either personally or by mail, by or at the direction of the president,
the secretary, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting.
Notwithstanding the preceding paragraph, notice of a shareholders'
meeting to act on an amendment of the articles of incorporation, on a plan of
merger or share exchange, on a proposed sale of assets other than in the regular
course of business, or on a plan of dissolution shall be given, in the manner
provided herein, not less than twenty-five nor more than sixty days before the
date of the meeting. Any such notice shall be accompanied by a copy of the
proposed amendment, plan of merger, or share exchange, or plan of proposed sale
of assets.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF SHARES
Section 1. A majority of the votes entitled to be cast on a matter by a
voting group constitutes a quorum of that voting group for action on that matter
except as otherwise provided by statute or by the articles of incorporation. If,
however, such quorum shall not be present or represented at any meeting of the
shareholders, the shareholders present in person or represented by proxy shall
have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until
<PAGE>
a quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally notified.
Section 2. If a quorum is present, action on a matter by a voting group
is approved if the votes cast within the voting group favoring the action exceed
the votes cast opposing the action unless the vote of a greater number of
affirmative votes is required by law or the articles of incorporation.
Section 3. Each outstanding share, regardless of class, shall be
entitled to one vote on each matter submitted to a vote at a meeting of
shareholders unless the articles of incorporation or law provide otherwise. A
shareholder may vote either in person or by proxy executed in writing by the
shareholder or by his duly authorized attorney-in-fact.
Section 4. Any action required or permitted to be taken at a meeting of
the shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be three. Directors need not
be residents of the State of Virginia nor shareholders of the corporation. The
directors, other
<PAGE>
than the first board of directors, shall be elected at the annual meeting of the
shareholders, and each director elected shall serve until the next succeeding
annual meeting and until his successor shall have been elected and qualified.
The first board of directors shall hold office until the first annual meeting of
shareholders.
Section 2. Any vacancy occurring in the board of directors, including a
vacancy resulting from an increase in the number of directors, may be filled by
the shareholders, the board of directors, or if the directors remaining in
office constitute fewer than a quorum of the board, the vacancy may be filled by
the affirmative vote of the directors remaining in office.
Section 3. The business and affairs of the corporation shall be managed
by its 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 articles
of incorporation or by these bylaws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Virginia, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise.
<PAGE>
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Virginia.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on ten days' notice to each director, either personally or by mail
or by facsimile telecommunication; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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
<PAGE>
special meeting of the board of directors need be specified in the notice or
waiver of notice of such meeting.
Section 6. A majority of the directors shall constitute a quorum for
the transaction of business unless a greater number is required by law or by the
articles of incorporation. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
unless the act of a greater number is required by statute or by the articles of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if one or more consents in writing,
setting forth the action so taken, shall be signed by each director entitled to
vote with respect to the subject matter thereof and included in the minutes or
filed with the corporate records reflecting the action taken.
ARTICLE VII
COMMITTEES OF DIRECTORS
Section 1. A majority of the number of directors fixed by the bylaws or
otherwise, may create one or more committees and appoint members of the board to
serve on the committee or committees. To the extent provided by the board of
directors or
<PAGE>
articles of incorporation, each committee shall have and exercise all of the
authority of the board of directors in the management of the corporation, except
as otherwise required by law. Each committee shall have two or more members who
serve at the pleasure of the board of directors. Each committee shall keep
regular minutes of its proceedings and report the same to the board when
required.
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these bylaws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by facsimile telecommunication.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these bylaws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
<PAGE>
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
Section 2. The board of directors at its first meeting after each
annual meeting of shareholders shall choose a president and one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member of
the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
<PAGE>
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than
one, the vice-presidents in the order determined by the board of directors,
shall, in the absence or disability of the president, perform the duties and
exercise the powers of the president and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
<PAGE>
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
<PAGE>
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer
<PAGE>
and shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates or shall be uncertificated. Certificates shall be signed by the
president or a vice-president and the secretary or an assistant secretary of the
corporation, and may be sealed with the seal of the corporation or a facsimile
thereof.
In addition to the above officers, the treasurer or an assistant
treasurer may sign in lieu of the secretary or an assistant secretary.
When the corporation is authorized to issue shares of more than one
class there shall be set forth upon the face or back of each certificate, or
each certificate shall have a statement that the corporation will furnish to any
shareholder upon request and without charge, a full statement of the
designations, preferences, limitations, and relative rights of the shares of
each class authorized to be issued and, if the corporation is authorized to
issue different series within a class, the variations in the relative rights and
preferences between the shares of each such series so far as the same have been
fixed and determined and the authority of the board of directors to fix and
determine the relative rights and preferences of subsequent series.
<PAGE>
Section 2. The signatures of the officers upon a certificate may be
facsimiles, unless otherwise provided in the articles of incorporation. In case
any officer who has signed or whose facsimile signature has been placed upon
such certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer at the date of its issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
uncertificated security to be issued in place of any certificate theretofore
issued by the corporation alleged to have been lost or destroyed. When
authorizing such issue of a new certificate or uncertificated security, the
board of directors, in its discretion and as a condition precedent to the
issuance thereof, may prescribe such terms and conditions as it deems expedient,
and may require such indemnities as it deems adequate, to protect the
corporation from any claim that may be made against it with respect to any such
certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be
<PAGE>
issued to the person entitled thereto, and the old certificate cancelled and the
transaction recorded upon the books of the corporation.
CLOSING OF TRANSFER BOOKS
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders, or any adjournment thereof
or entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors may fix in advance a date as the record date for the determination of
shareholders, such date in any case to be not more than seventy days before the
meeting or action requiring the determination of shareholders. If no record date
is fixed for the determination of shareholders entitled to notice of or to vote
at a meeting of shareholders, or shareholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the date on which
the resolution of the board of directors declaring such dividend is adopted, as
the case may be, shall be the record date for such determination of
shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and
<PAGE>
to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Virginia.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the transfer books for
shares shall make, at least ten days before each meeting of shareholders, a
complete list of the shareholders entitled to vote at such meeting, arranged by
voting group and within each voting group by class or series of shares, with the
address of each and the number of shares held by each, which list, for a period
of ten days prior to such meeting, shall be kept on file at the principal
business office of the corporation and shall be subject to inspection by any
shareholder at any time during usual business hours. Such list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any shareholder during the whole time of the meeting. The
original share transfer book, or a duplicate thereof, shall be prima facie
evidence as to who are the shareholders entitled to examine such list or share
transfer book or to vote at any meeting of the shareholders.
<PAGE>
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in money
or other property subject to any provisions of the articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Virginia". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These bylaws may be amended or repealed or new bylaws may be
adopted by the affirmative vote of a majority of the board of directors at any
regular or special meeting of the board unless the articles of incorporation or
law reserve this power to the shareholders.
<PAGE>
CERTIFICATE OF AMENDMENT AND RESTATEMENT
TO THE CERTIFICATE OF FORMATION
OF
THE J. THAYER COMPANY, LLC
1. The name of the limited liability company is THE J. THAYER COMPANY, LLC,
which was formed on March 30, 1998 under the original name of THE J. THAYER
COMPANY, LLC. 2. The Certificate of Formation of the limited liability company
is hereby amended as follows:
FIRST: The name of the limited liability company formed hereby is US
OFFICE PRODUCTS, NORTHWEST DISTRICT, LLC.
SECOND: The address of the company's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of
New Castle. The name of the company's registered agent as such
address is The Corporation Trust Company.
THIRD: The purpose of the company is to engage in any lawful act or
activity for which a limited liability company may be
organized under the Delaware Limited Liability Company Act.
FOURTH: No member of the company shall be obligated personally for any
debt, obligation or liability of the company solely by reason
of being a member of the company. The failure to observe any
formalities relating to the business or affairs of the company
shall not be grounds for imposing personal liability on any
member for the debts, obligations or liabilities of the
company.
FIFTH: The company reserves the right to amend or repeal any
provision contained herein in the manner now or hereafter
prescribed by law.
3. This Certificate of Amendment and Restatement shall be effective on October
1, 1998.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment
and Restatement of The J. Thayer Company, LLC this Twenty-Fifth day of
September, 1998.
U.S. OFFICE PRODUCTS COMPANY
Its Sole Member
By: /s/ Mark D. Director
-----------------------------------------
Mark D. Director
Executive Vice President - Administration
<PAGE>
Exhibit 3.46
AMENDED AND RESTATED
OPERATING AGREEMENT OF
THE J. THAYER COMPANY, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
THIS AMENDED AND RESTATED OPERATING AGREEMENT (this "Agreement") of The
J. Thayer Company, L.L.C., a Delaware limited liability company (the "Company"),
is entered into as of April 24, 1998 and shall constitute the "limited liability
company agreement" of the Company within the meaning of Section 18-101(7) of the
Delaware Limited Liability Company Act, Title 6, Delaware Corporations Code,
Section 18-101 et seq., as amended (the "Act").
WHEREAS, on March 30, 1998 the Company entered into an operating
agreement, constituting the "limited liability company agreement" of the Company
within the meaning of Section 18-101(7) of the Act;
WHEREAS, the Company desires to amend Section 1.12 of such operating
agreement to authorize the Member to delegate to one or more managers the
management and operation of the Company;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company hereby amends and
restates such operating agreement in its entirety as follows:
1.1 Except as otherwise provided in this Agreement, the default
provisions of the Act shall apply to the Company.
1.2 U.S. Office Products Company, a Delaware corporation, shall be the
sole "member" of the Company within the meaning of Section 18-101(11) of the Act
(the "Member").
1.3 The Member hereby enters into and forms the Company as a limited
liability company in accordance with the Act. The name of the Company shall be
"The J. Thayer Company, L.L.C."
1.4 The Company shall maintain a Delaware registered office and agent
for the service of process as required by the Act. In the event the registered
agent ceases to act as such for any reason or the registered office shall
change, the Member shall promptly designate a replacement registered agent or
file a notice of change of address, as the case may be.
1.5 The purpose and scope of the Company shall be to to engage in any
lawful act or activities as shall be determined by the Member in its sole and
absolute discretion.
1.6 The term (the "Term") of the Company shall begin as of the date of
filing of the Certificate of Formation for the Company in accordance with
Section 18-201 of the Act and shall
<PAGE>
continue until dissolved by the Member in its sole and absolute discretion.
Except as specifically provided in this Section 1.6, the Company shall not be
dissolved prior to the end of its Term.
1.7 Title to all Company property shall be held in the name of the
Company; provided, however, that the Company shall make such distributions of
cash and/or property to the Member from time to time as the Member shall
determine in its sole and absolute discretion.
1.8 Except as otherwise required by applicable law, the Member shall
have no personal liability for the debts and obligations of the Company.
1.9 The Member shall have no obligation to make any contributions to
the capital of the Company and shall make only such contributions as the Member
shall determine in its sole and absolute discretion.
1.10 The Member shall have no obligation to provide any services to the
Company and shall provide only such services as the Member shall determine in
its sole and absolute discretion.
1.11 The Company shall indemnify the Member to the fullest extent
permitted by law.
1.12 Pursuant to Sections 18-402 and 18-407 of the Act, the Member
shall delegate the management and operation of the Company to John Thayer, Jeff
Livermore, Kathleen M. Delaney, and Mark Director, who shall act as managers of
the Company. John Thayer shall hold the offices of President and Secretary of
the Company, Jeff Livermore shall hold the office of Chief Financial Officer of
the Company, Kathleen M. Delaney shall hold the office of Vice-President, and
Mark Director shall hold the offices of Vice-President and Assistant Secretary
of the Company, each to serve until his successor is duly elected and qualified.
Notwithstanding any provision of this Agreement to the contrary, any contract,
agreement, deed, lease, note or other document or instrument executed on behalf
of the Company by the Member or managers shall be deemed to have been duly
executed and third parties shall be entitled to rely upon the Member's and/or
managers' power to bind the Company without otherwise ascertaining that the
requirements of this Agreement have been satisfied.
1.13 The "The J. Thayer Company" name and mark are the property of the
Member. The Company's authority to use such name and mark may be withdrawn by
the Member at any time without compensation to the Company. Following the
dissolution and liquidation of the Company, all right, title and interest in and
to such name and mark shall be held solely by the Member.
1.14 The interpretation and enforceability of this Agreement and the
rights and liabilities of the Member as such shall be governed by the laws of
the State of Delaware as such laws are applied in connection with limited
liability company operating agreements entered into and wholly performed upon in
Delaware by residents of Delaware. To the extent permitted by the Act and other
applicable law, the provisions of this Agreement shall supersede any contrary
provisions of the Act or other applicable law.
<PAGE>
1.15 In the event any provision of this Agreement is determined to be
invalid or unenforceable, such provision shall be deemed severed from the
remainder of this Agreement and replaced with a valid and enforceable provision
as similar in intent as reasonably possible to the provision so severed, and
shall not cause the invalidity or unenforceability of the remainder of this
Agreement.
1.16 This Agreement may be amended, in whole or in part, only through a
written amendment executed by the Member.
1.17 This Agreement contains the entire understanding and intent of the
Member regarding the Company and supersedes any prior written or oral agreement
respecting the Company. There are no representations, agreements, arrangements,
or understandings, oral or written, of the Member relating to the Company which
are not fully expressed in this Agreement.
IN WITNESS WHEREOF, the Member has executed this Agreement as
of the date first above written.
U.S. OFFICE PRODUCTS COMPANY
Sole Member
- ---------------------------------------
Mark D. Director
Executive Vice-President, Administration
and General Counsel
<PAGE>
Exhibit 3.47
MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES
CORPORATION, SECURITIES AND LAND DEVELOPMENT BUREAU
Date Received (FOR BUREAU USE ONLY)
Name
Colleen Johnson
Address
1025 Thomas Jefferson street, NW, Ste. 600 East
City State Zip Code
Washington DC 20007- EFFECTIVE DATE:
Document will be returned to the name and address you enter above
RESTATED ARTICLES OF INCORPORATION
For use by Domestic Profit Corporations
(Please read information and instructions on last page)
Pursuant to the provisions of Act 284, Public Acts of 1972, the undersigned
corporation executes the following Articles:
1. The present name of the corporation is:
Kentwood Office Furniture, Inc.
2. The identification number assigned by the Bureau is: 194070
3. All former names of the corporation are:
GAM, Incorporated
4. The date of filing the original Articles of Incorporation was: June 8, 1990
The following Restated Articles of Incorporation supersede the
Articles of Incorporation as amended and shag be the Articles of
Incorporation for the corporation:
ARTICLE I
The name of the corporation is: Kentwood Office Furniture, Inc.
ARTICLE 11
The purpose or purposes for which the corporation is formed are:
To engage in any activity within the purposes for which corporations may be
formed under the Business Corporation Act of Michigan.
<PAGE>
ARTICLE III
The total authorized shares:
Common shares 1,000 shares, without par value Preferred shares
A statement of all or any of the relative rights, preferences and
limitations of the shares of each class is as follows:
None
ARTICLE IV
1. The address of the current registered office is:
30600 Telegraph Road 3-inanam Farms Michigan 48025
(Street Address) (City) (ZIP Code)
2. The mailing address of the current registered office if different than
above:
(Street Address or P.O. Box) (City) , Michigan (ZIP Code)
3. The name of the current resident agent is: The Corporation Company
ARTICLE V (Optional. Delete if not applicable.)
Any action required or permitted by the Act to be taken at an annual or
special meeting of shareholders may be taken without a meeting, without prior
notice, and without a vote, if consents in writing, setting forth the action
so taken, are signed by the holders of outstanding shares having not less
than the minimum number of votes that would be necessary to authorize or take
the action at a meeting at which all shares entitled to vote on the action
were present and voted. The written consents shall bear the date of signature
of each shareholder who signs the consent. No written consents shall be
effective to take the corporate action referred to unless, within 60 days
after the record date for determining shareholders entitled to express
consent to or to dissent from a proposal without a meeting, written consents
dated not more than 10 days before the record date and signed by a sufficient
number of shareholders to take the action are delivered to the corporation.
Delivery shall be to the corporation's registered office, its principal place
of business, or an officer or agent of the corporation having custody of the
minutes of the proceedings of its shareholders. Delivery made to a
corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to shareholders who would have
been entitled to notice of the shareholder meeting if the action had been
taken at a meeting and who have not consented in writing.
<PAGE>
ARTICLE VI (Additional provisions, if any, may be inserted here; attach
additional pages if needed.)
5. COMPLETE SECTION (a) IF THE RESTATED ARTICLES WERE ADOPTED BY THE UNANIMOUS
CONSENT OF THE INCORPORATOR(S) BEFORE THE FIRST MEETING OF THE BOARD OF
DIRECTORS; OTHERWISE, COMPLETE SECTION (b). DO NOT COMPLETE BOTH.
6.
a. / / These Restated Articles of Incorporation were duly adopted on the
25th day of September, 1998 , in accordance with the provisions
of Section 642 of the Act by the unanimous consent of the
incorporator(s) before the first meeting of the Board of
Directors.
Signed this day of '19
(Signatures of lncorporators~ Type or Print Name Under Each Siqnature)
b. / / These Restated Articles of Incorporation were duly adopted
on the 25th day of September, 1998 in accordance with the
provisions of Section 642 of the Act and: (check one of the
following)
/ / were duly adopted by the Board of Directors without a vote
of the shareholders. These Restated Articles of
Incorporation only restate and integrate and do not further
amend the provisions of the Articles of Incorporation as
heretofore amended and there is no material discrepancy
between those provisions and the provisions of these
Restated Articles.
/ / were duly adopted by the shareholders. The necessary number
of shares as required by statute were voted in favor of
these Restated Articles.
/ / were duly adopted by the written consent of the shareholders
having not less than the minimum number of votes required by
statute in accordance with Section 407(l) of the Act.
Written notice to shareholders who have not consented in
writing has been given. (Note: Written consent by less than
all of the shareholders is permitted only if such provision
appears in the Articles of Incorporation.)
/ / were duly adopted by the written consent of all the
shareholders entitled to vote in accordance with section
407(2) of the Act.
Signed this 25th day of September, 1998
By: /s/Mark D. Director
---------------------------------------------------
(Signatire ;FFresident, Vice-President, Chairperson
or Vice-Chairperson)
Mark D. Director Vice-President
(Type or Print Name) (Type or Print Title)
<PAGE>
Name of person or organization Preparer's name and business
remitting fees: telephone number:
US Office Products Company Colleen D. Johnson
(202 )339-6708
INFORMATION AND INSTRUCTIONS
1. The articles of incorporation cannot be restated until this form, or a
comparable document, is submitted.
2. Submit one original of this document. Upon filing, the document will be
added to the records of the Corporation, Securities and Land Development
Bureau. The original will be returned to the address appearing in the box
on the front as evidence of filing.
Since this document will be maintained on optical disk media, it is
important that the filing be legible. Documents with poor black and white
contrast, or otherwise illegible, will be rejected.
3. This document is to be used pursuant to sections 641 through 643 of the Act
for the purpose of restating the articles of incorporation of a domestic
profit corporation. Restated articles of incorporation are an integration
into a single instrument of the current provisions of the corporation's
articles of incorporation, along with any desired amendments to those
articles.
4. Restated articles of incorporation which do not amend the articles of
incorporation may be adopted by the board of directors without a vote of
the shareholders. Restated articles of incorporation which amend the
articles of incorporation require adoption by the shareholders. Restated
articles of incorporation submitted before the first meeting of the board
of directors require adoption by all of the incorporators.
5. Item 2 - Enter the identification number previously assigned by the
Bureau. If this number is unknown, leave it blank.
6. The duration of the corporation should be stated in the restated articles
of incorporation only if it is not perpetual.
7. This document is effective on the date endorsed "filed" by the Bureau. A
later effective date, no more than 90 days after the date of delivery, may
be stated as an additional article.
8. If the restated articles are adopted before the first meeting of the board
of directors, item 5(a) must be completed and signed in ink by a majority
of the incorporators. Other restated articles must be signed by the
president, vice-president, chairperson or vice-chairperson of the
corporation.
9. FEES: Make remittance payable to the State of Michigan. Include corporation
name and identification number on check or money order.
<TABLE>
<S> <C>
NONREFUNDABLE FEE .........................................................................................$10.00
TOTAL MINIMUM FEE .........................................................................................$10.00
ADDITIONAL FEES DUE FOR INCREASED AUTHORIZED SHARES ARE:
each additional 20,000 authorized shares or portion thereof ...............................................$30.00
maximum fee per filing for first 10,000 authorized shares
$5,000.00
each additional 20,000 authorized shares or portion thereof in excess of 10,000,000 shared ......... $30.00
maximum fee per filing for authorized shares in excess of 10,000,000 shares ....................$200,000.00
</TABLE>
<TABLE>
<S> <C>
10. Mail form and fee to: The office is located at:
Michigan Department of Consumer and Industry Services 6546 Mercantile Way
Corporation, Securities and Land Development Bureau Lansing, MI 48910
Corporation Division (517) 334-6302
P.O. Box 30054
Lansing, MI 48909-7554
</TABLE>
<PAGE>
Exhibit 3.48
KENTWOOD OFFICE FURNITURE, INC.
* * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in Bingham Farms, Michigan.
Section 2. The corporation may also have offices at such other places
both within and without the State of Michigan as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in Grand Rapids, State of Michigan, at such place as may be fixed
from time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
<PAGE>
Section 3. Written notice of the time, place and purposes of a meeting
of shareholders shall be given not less than ten nor more than sixty days before
the date of the meeting, either personally or by mail, to each shareholder of
record entitled to vote at the meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Michigan as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of shareholders may be called at any time,
for any purpose or purposes, by the board of directors or by such other persons
as may be authorized by law.
Section 3. Written notice of the time, place and purposes of a special
meeting of shareholders shall be given not less than ten nor more than sixty
days before the date of the meeting, either personally or by mail, to each
shareholder of record entitled to vote at the meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the
<PAGE>
shareholders for the transaction of business except as otherwise provided by
statute or by the articles of incorporation. The shareholders present in person
or by proxy at such meeting may continue to do business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum. Whether or not a quorum is present, the meeting may be adjourned by a
vote of the shares present. When the holders of a class or series of shares, are
entitled to vote separately on an item of business, this section applies in
determining the presence of a quorum of such class or series for transaction of
the item of business.
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Section 4. Any action required or permitted to be taken at an annual or
special meeting of shareholders may be taken without a meeting, without prior
notice and without a vote, if all the shareholders entitled to vote thereon
consent thereto in writing.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Directors need not be
residents of the State of Michigan nor shareholders of the corporation. The
first board of directors shall hold office until the
<PAGE>
first annual meeting of shareholders. The directors, other than the first board
of directors, shall be elected at the annual meeting of the shareholders, and
shall hold office for the term for which he is elected and until his successor
is elected and qualified.
Section 2. Any vacancy occurring in the board of directors may be filled
by the affirmative vote of a majority of the remaining directors though less
than a quorum of the board of directors. A directorship to be filled because of
an increase in the number of directors or to fill a vacancy may be filled by the
board for a term of office continuing only until the next election of directors
by the shareholders.
Section 3. The business affairs of the corporation shall be managed by
its board except as otherwise provided by statute or in the articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the corporation, outside
of the State of Michigan, at such place or places as they may from time to time
determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors in office, and irrespective of any personal interest of any of
them, may establish reasonable compensation of directors for services to the
corporation as directors or officers.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
<PAGE>
Section 1. Regular or special meetings of the board of directors may be
held either within or without the State of Michigan.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 2 days' notice to each director, either personally or by mail
or by telegram; special meetings shall be called by the president or secretary
in like manner and on like notice on the written request of two directors.
Section 5. Attendance of a director at a meeting constitutes a waiver of
notice of the meeting, except where a director attends a meeting for the express
purpose of objecting 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, a regular or special meeting need be specified in the notice or
waiver of notice of the meeting.
Section 6. A majority of the members of the board then in office
constitutes a quorum for transaction of business, unless the articles of
incorporation provide for a larger or smaller number. The vote of the majority
of members present at a meeting at which a quorum is present constitutes
<PAGE>
the action of the board unless the vote of a larger number is required by
statute, the articles or these by-laws. If a quorum shall not be present at any
meeting of directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 7. Unless otherwise provided by the articles of incorporation
action required or permitted to be taken pursuant to authorization voted at a
meeting of the board, may be taken without a meeting if, before or after the
action, all members of the board consent thereto in writing. The written
consents shall be filed with the minutes of the proceedings of the board. The
consent has the same effect as a vote of the board for all purposes.
ARTICLE VII
COMMITTEES
Section 1. Unless otherwise provided in the articles of incorporation,
the board may designate one or more committees, each committee to consist of one
or more of the directors of the corporation. The board may designate one or more
directors as alternate members of a committee, who may replace an absent or
disqualified member at a meeting of the committee. In the absence or
disqualification of a member of a committee, the members thereof present at a
meeting and not disqualified from voting, whether or not they constitute a
quorum, may unanimously appoint another member of the board to act at the
meeting in place of such an absent or disqualified member. A committee, and each
member thereof, shall serve at the pleasure of the board. A committee, to the
extent provided in the resolution of the board or in the by-laws, may exercise
all
<PAGE>
powers and authority of the board in management of the business and affairs
of the corporation subject to any limitations by statute or in the articles of
incorporation.
<PAGE>
ARTICLE VIII
NOTICES
Section 1. When a notice or communication is required or permitted by
this act to be given by mail, it shall be mailed, except as otherwise provided
in this act, to the person to whom it is directed at the address designated by
him for that purpose or, if none is designated, at his last known address. The
notice or communication is given when deposited, with postage thereon prepaid,
in a post office or official depository under the exclusive care and custody of
the United States postal service. The mailing shall be registered, certified or
other first class mail except where otherwise provided by statute.
Section 2. When, under statutory requirements or the articles of
incorporation or these by-laws or by the terms of an agreement or instrument, a
corporation or the board or any committee thereof may take action after notice
to any person or after lapse of a prescribed period of time, the action may be
taken without notice and without lapse of the period of time, if at any time
before or after the action is completed the person entitled to notice or to
participate in the action to be taken or, in case of a shareholder, by his
attorney-in-fact, submits a signed waiver of such requirements.
ARTICLE IX
OFFICERS
<PAGE>
Section 1. The officers of the corporation shall be appointed by the
board of directors and shall be a chairman of the board, a president, one or
more vice-presidents, secretary, treasurer and such other officers as may be
determined by the board.
Section 2. The board of directors at its first meeting after each annual
meeting of shareholders shall choose a president, one or more vice-presidents,
secretary, and treasurer, none of whom need be a member of the board.
Section 3. The board of directors may appoint such other officers,
assistant officers, employees and agents as it deems necessary and prescribe
their powers and duties.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. An officer elected or appointed shall hold office for the
term for which he is elected or appointed and until his successor is elected or
appointed and qualified, or until his resignation or removal. An officer elected
or appointed by the board may be removed by the board with or without cause.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
<PAGE>
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
<PAGE>
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
<PAGE>
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates signed by the chairman of the board, vice-chairman of the board,
president or a vice-president and by the treasurer, assistant treasurer,
secretary or assistant secretary of the corporation, and may be sealed with the
seal of the corporation or a facsimile thereof. A certificate representing
shares shall state upon its face that the corporation is formed under the laws
of this state, the name of the person to whom issued, the number and class of
shares, and the designation of the series, if any, which the certificate
represents, the par value of each share represented by the certificate, or a
statement that the shares are without par value and shall set forth on its face
or back or state that the corporation will furnish to a shareholder upon request
and without charge a full statement of the designation, relative rights,
preferences and limitations of the shares of each class authorized to be issued,
and if the corporation is authorized to issue any class of shares in series, the
designation, relative rights, preferences and limitations of each series so far
as the same have been prescribed and the authority
<PAGE>
of the board to designate and prescribe the relative rights, preferences and
limitations of other series.
Section 2. The signatures of the officers may be facsimiles if the
certificate is countersigned by a transfer agent or registered by a registrar
other than the corporation itself or its employee. In case any officer who has
signed or whose facsimile signature has been placed upon a certificate ceases to
be such officer before the certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed, and the board may require the owner of the lost
or destroyed certificate, or his legal representative, to give the corporation a
bond sufficient to indemnify the corporation against any claim that may be made
against it on account of the alleged lost or destroyed certificate or the
issuance of such a new certificate.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession,
<PAGE>
assignment or authority to transfer, a new certificate shall be issued to the
person entitled thereto, and the old certificate cancelled and the transaction
recorded upon the books of the corporation.
FIXING OF RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at a meeting of shareholders or an adjournment thereof, or
to express consent or to dissent from a proposal without a meeting, or for the
purpose of determining shareholders entitled to receive payment of a dividend or
allotment of a right, or for the purpose of any other action, the board of
directors may fix, in advance, a date as the record date for any such
determination of shareholders. The date shall not be more than sixty nor less
than ten days before the date of the meeting, not more than sixty days before
any other action. If a record date is not fixed, the record date for
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders shall be the close of business on the day next preceding the day on
which notice is given, or, if no notice is given, the day next preceding the day
on which the meeting is held, and the record date for determining shareholders
for any purpose shall be the close of business on the day on which the
resolution of the board relating thereto is adopted. When a determination of
shareholders of record entitled to notice of or to vote at a meeting of
shareholders has been made, the determination applies to any adjournment of the
meeting, unless the board fixes a new record date for the adjourned meeting.
REGISTERED SHAREHOLDERS
Section 6. For the purpose of determining shareholders entitled to vote
or receive payment of a dividend or allotment of a right, the corporation shall
be authorized to accept the list of
<PAGE>
shareholders made and certified by the officer or agent having charge of the
stock transfer books as prima facie evidence as to who are such shareholders on
the designated record date.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the stock transfer
books for shares of a corporation shall make and certify a complete list of the
shareholders entitled to vote at a shareholders' meeting or any adjournment
thereof. The list shall be arranged alphabetically within each class and series,
with the address of, and the number of shares held by each shareholder, produced
at the time and place of the meeting, subject to inspection by any shareholder
during the whole time of the meeting and be prima facie evidence as to who are
the shareholders entitled to examine the list or to vote at the meeting. A
person who is a shareholder of record of a corporation, upon at least ten days'
written demand may examine for any proper purpose in person or by agent or
attorney, during usual business hours, its minutes of shareholders' meetings and
record of shareholders and make extracts therefrom, at the places where they are
kept.
ARTICLE XI
DIVIDENDS
Section 1. The board of directors may declare and pay dividends or make
other distributions in cash, bonds or property of the corporation, including the
shares or bonds of other corporations, on its outstanding shares, except when
currently the corporation is insolvent or would thereby be
<PAGE>
made insolvent, or when the declaration, payment or distribution would be
contrary to any statutory restriction or restriction contained in the articles
of incorporation.
Section 2. Before payment of any dividend, the board of directors may
create reserves from its earned surplus or capital surplus for any proper
purpose and may increase, decrease or abolish such reserve.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday of April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Michigan". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
<PAGE>
ARTICLE XII
AMENDMENTS
These by-laws may be amended or repealed or new by-laws may be adopted
by the shareholders or board of directors except as may be provided in the
articles of incorporation. The shareholders may prescribe in these by-laws that
any by-law made by them shall not be altered or repealed by the board of
directors. Amendment of the by-laws by the board requires a vote of not less
than a majority of the members of the board then in office.
<PAGE>
ARTICLE XIII
DIRECTORS' ANNUAL STATEMENT
Section 1. At least once in each year the board of directors shall cause
a financial report of the corporation for the preceding fiscal year to be made
and distributed to each shareholder thereof within four months after the end of
the fiscal year. The report shall include the corporation's statement of income,
its year-end balance sheet and, if prepared by the corporation, its statement of
source and application of funds and such other information as may be required by
statute.
FINANCIAL STATEMENT TO SHAREHOLDERS
Section 2. Upon written request of a shareholder, the corporation shall
mail to the shareholder its balance sheet as at the end of the preceding fiscal
year; its statement of income for such fiscal year; and, if prepared by the
corporation, its statement of source and application of funds for such fiscal
year.
<PAGE>
Exhibit 3.49
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
US OFFICE PRODUCTS, NORTH ATLANTIC DISTRICT, INC.
US Office Products, North Atlantic District, Inc., a corporation
organized and existing under the laws of the State of Delaware, hereby certifies
as follows:
1. The name of the corporation is US Office Products, North
Atlantic District, Inc. and the name under which the
corporation was originally incorporated is LSI ACQUISITION
CORP. The date of filing of its original Certificate of
Incorporation with the Secretary of State was August 26, 1996.
2. This Amended and Restated Certificate of Incorporation
restates and integrates and further amends the Certificate of
Incorporation of this corporation in its entirety.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended and restated hereby
to read as herein set forth in full:
l. The name of the corporation is US OFFICE PRODUCTS, NORTH
ATLANTIC DISTRICT, INC.
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street,
in the City of Wilmington, County of New Castle. The name
of its registered agent at such address is The Corporation
Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for
which corporations may be organized under the
<PAGE>
General Corporation Law of Delaware and in general, to
possess and exercise all the powers and privileges
granted by the General Corporation Law of Delaware or by
any other law of Delaware or by this Certificate of
Incorporation together with any powers incidental
thereto, so far as such powers and privileges are
necessary or convenient to the conduct, promotion or
attainment of the business or purposes of the
corporation.
4. The total number of shares of stock which the corporation
shall have authority to issue is: One Thousand (1,000)
shares of Common Stock; all of such shares shall be without
par value.
5. The corporation is to have perpetual existence.
6. The corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed
by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
7. 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 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 any improper personal benefit.
4. This Amended and Restated Certificate of Incorporation was
duly adopted by unanimous written consent of the
stockholders in accordance with the applicable provisions
of Section 228, 242 and 245 of the General Corporation Law
of the State of Delaware.
5. This Amended and Restated Certificate of Incorporation
shall be effective on October 1, 1998.
<PAGE>
IN WITNESS WHEREOF, said US Office Products, North Atlantic District, Inc. has
caused this Amended and Restated Certificate of Incorporation to be signed by
Mark D. Director, its Vice President, this Twenty-Fifth day of September, 1998.
US Office Products, North Atlantic District, Inc.
By: /s/ Mark D. Director
--------------------------------------------
Vice President
<PAGE>
Exhibit 3.50
US OFFICE PRODUCTS, NORTH ATLANTIC DISTRICT, INC.
* * * * *
AMENDED AND RESTATED
BY-LAWS
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of New York, State of New York at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the
notice of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of Delaware, as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year1999,
shall be held during the first week of June at 10:00 a.m. or at such other date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than 10 nor more than 60 days before the date of the meeting.
Section 4. 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
<PAGE>
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than 10 nor more than 60 days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have 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 such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. 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 9. When a quorum is present at any meeting, the vote of the holders
of a majority of the stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the
question is one upon which by express provision of the statutes or of the
certificate of incorporation, a different vote is required in which case such
express provision shall govern and control the decision of such question.
<PAGE>
Section 10. 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, but no proxy shall be
voted on after three years from its date, unless the proxy provides for a
longer period.
Section 11. 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 thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board
shall be 3. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the
next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then
an election of directors may be held in the manner provided by statute. If,
at the time of filling any vacancy or any newly created directorship, the
directors then in office shall constitute less than a majority of the whole
board (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least ten percent of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to
be held to fill any such vacancies or newly created directorships, or to
replace the directors chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such
<PAGE>
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.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of
the stockholders to fix the time or place of such first meeting of the newly
elected board of directors, or in the event such meeting is not held at the
time and place so fixed by the stockholders, the meeting may be held at such
time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 10 days' notice to each director, either personally or by mail or by
facsimile communication; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors unless the board consists of only one director; in which case
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of the sole director.
Section 8. At all meetings of the board, a majority of directors shall
constitute a quorum for the transaction of business and the act of a majority
of the directors present at any meeting at which there is a quorum shall be
the act of the board of directors, except as may be otherwise specifically
provided by statute or by the certificate of incorporation. If a quorum shall
not be present at any meeting of the board of directors the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. 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 or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
<PAGE>
Section 10. Unless otherwise restricted by the certificate of incorporation
or these by-laws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board 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.
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 the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
General Corporation Law of Delaware to be submitted to stockholders for approval
or (ii) adopting, amending or repealing any by-law of the corporation. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of incorporation
or these by-laws, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
<PAGE>
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of incorporation
or by law, any director or the entire board of directors may be removed, with or
without cause, by the holders of a majority of shares entitled to vote at an
election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by facsimile telecommunication.
Section 2. Whenever any notice is required to be given under the provisions
of the statutes or of the certificate of incorporation or of these by-laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurers. Any number of offices may be held by the same
person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation shall
be fixed by the board of directors.
<PAGE>
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of
the corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his inability
or refusal to act, the vice-president (or in the event there be more than one
vice-president, the vice-presidents in the order designated by the directors, or
in the absence of any designation, then in the order of their election) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
<PAGE>
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the treasurer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. 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 or vice-chairman of the board
of directors, or the president or a vice-president, and by the treasurer- or
an assistant treasurer, or the secretary or an assistant secretary of the
corporation.
<PAGE>
Section 2. Any of or all the signatures on a certificate may be 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 were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. 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. A
<PAGE>
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.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting, and
at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be the last Saturday in
April.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new by-laws
may be adopted by the stockholders or by the board of directors, when such power
is conferred upon the board of directors by the certificate of incorporation at
any regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors if notice of
such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
by-laws is conferred upon the board of directors by the certificate of
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
<PAGE>
Exhibit 3.53
RESTATED ARTICLES OF INCORPORATION
OF
MAIL BOXES ETC.
************************
We, Kathleen M. Delaney, the Vice President, and Mark D. Director, the
Assistant Secretary, of Mail Boxes Etc., a corporation duly organized and
existing under the laws of the State of California, do hereby certify:
That they are the Vice President and the Assistant Secretary, respectively
of Mail Boxes Etc., a California corporation.
That the articles of incorporation of this corporation were filed by the
Secretary of State on the Eighteenth day of November, 1983.
That an amended and restatement of the articles of incorporation of this
corporation has been approved by the board of directors.
That an amendment and restatement of the articles of incorporation shall
be as said articles are amended through the date of the filing of this
certificate.
The foregoing amendment and restatement of Articles of Incorporation has
been duly approved by the required vote of shareholders in accordance with
Section 902, California Corporations Code. The total number of outstanding
shares of the corporation is 100. The number of shares voting in favor of the
amendment equaled or exceeded the vote required. The percentage vote required
was more than 50%.
That the following sets forth the text of the articles of incorporation of
this corporation as amended to the date of this certificate in full:
<PAGE>
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MAIL BOXES ETC.
FIRST: That the name of the corporation is Mail Boxes Etc.
SECOND: The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporation Code.
THIRD: The total number of shares which the corporation is authorized to issue
is 1,000 shares of Common Stock; all of such shares shall be with no par value.
FOURTH: The duration of this corporation is to be perpetual.
<PAGE>
Each of the undersigned declares under penalty of perjury that the statements
contained in the foregoing certificate are true of their own knowledge. Executed
at 1025 Thomas Jefferson St., Suite 600 East, Washington, DC, on September 25,
1998.
/s/ Kathleen M. Delaney
-----------------------
Kathleen M. Delaney, Vice President
/s/ Mark D. Director
-----------------------
Mark D. Director, Assistant Secretary
<PAGE>
Exhibit 3.54
MAIL BOXES ETC.
* * * * *
AMENDED AND RESTATED
BYLAWS
* * * * *
ARTICLE I
OFFICES
Section l. The principal executive office shall be located in San Diego,
California.
Section 2. The corporation may also have offices at such other places
both within and without the State of California as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section l. All meetings of shareholders for the election of directors
shall be held in San Diego, State of California, at such place as may be fixed
from time to time by the board of directors, or at such other place either
within or without the State of California as shall be designated from time to
time by the board of directors and stated in the notice of the meeting. Meetings
of shareholders for any other purpose may be held at such time and place, within
or without the State of California, as shall be stated in the notice of the
meeting or in a duly executed waiver of notice
<PAGE>
thereof. If no other place is stated or fixed, shareholders' meetings shall be
held at the principal executive office of the corporation.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held during the last week of June at 10:00 A.M., or at such other
date and time as shall be designated from time to time by the board of directors
and stated in the notice of the meeting, at which they shall elect by a
plurality vote a board of directors and transact such other business as may
properly be brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be given to each shareholder entitled
to vote thereat not less than 10 (or, if sent by third-class mail, 30) nor more
than 60 days before the date of the meeting. Notice may be sent by third-class
mail only if the outstanding shares of the corporation are held of record by 500
or more persons (determined as provided in section 605 of the California General
Corporation Law) on the record date for the shareholders' meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section l. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of California as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president, the board of directors, or the
holders of not less than 10 percent of all the shares entitled to vote at
<PAGE>
the meeting and if the corporation has a chairman of the board of directors,
special meetings of the shareholders may be called by the chairman.
Section 3. Written or printed notice of a special meeting of
shareholders, stating the time, place and purpose or purposes thereof, shall be
given to each shareholder entitled to vote thereat not less than 10 (or, if sent
by third-class mail, 30) nor more than 60 days before the date fixed for the
meeting. Notice may be sent by third-class mail only if the outstanding shares
of the corporation are held of record by 500 or more persons (determined as
provided in section 605 of the California General Corporation Law) on the record
date for the shareholders' meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section l. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, re
presented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the original meeting.
<PAGE>
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented and voting at the meeting (which shares voting
affirmatively also constitute at least a majority of the required quorum), shall
be the act of the shareholders unless the vote of a greater number or voting by
classes is required by law or the articles of incorporation.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact. In all
elections for directors, every shareholder entitled to vote shall have the right
to vote, in person or by proxy, the number of shares of stock owned by him for
as many persons as there are directors to be elected, or, upon satisfaction of
the requirements set forth in Section 708(b) of the California General
Corporation Law, to cumulate the vote of said shares, and give one candidate a
number of votes equal to the number of directors to be elected multiplied by the
number of votes to which the shareholder's shares are normally entitled, or to
distribute the votes on the same principle among as many candidates as he may
see fit. Section 708(b) of the California General Corporation Law provides that
no shareholder shall be entitled to cumulate votes for any candidate for the
office of director unless such candidates' names have been placed in nomination
prior to the voting and at least one shareholder has given notice at the meeting
prior to the voting of his intention to cumulate his votes.
Section 4. Unless otherwise provided in the articles, any action, except
election of directors, which may be taken at any annual or special meeting of
shareholders may be taken without a meeting and without prior notice, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding shares having not less than the minimum number of votes
that
<PAGE>
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Except to fill a vacancy
in the board of directors not filled by the directors, directors may not be
elected by written consent except by unanimous written consent of all shares
entitled to vote for the election of directors. Any election of a director to
fill a vacancy (other than a vacancy created by removal) not filled by the
directors requires the written consent of a majority of the shares entitled to
vote.
ARTICLE V
DIRECTORS
Section l. The number of directors shall be 3. Directors need not be
residents of the State of California nor shareholders of the corporation. The
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
Section 2. Unless otherwise provided in the articles of incorporation,
vacancies, except for a vacancy created by the removal of a director, and newly
created directorships resulting from any increase in the number of directors may
be filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify. Unless
otherwise provided in the articles of incorporation any vacancy created by the
removal of a director shall be filled by the shareholders by the vote of a
majority of the shares entitled to vote at a meeting at which a quorum is
present. Any vacancies, which may be filled by directors and are not filled by
the directors, may
<PAGE>
be filled by the shareholders by a majority of the shares entitled to vote at a
meeting at which a quorum is present.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these bylaws directed or required to be exercised or done by
the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
California, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for services to the corporation as directors, officers or
otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section l. Meetings of the board of directors, regular or special, may
be held either within or without the State of California.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
<PAGE>
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 2 days' notice to each director, either personally or by mail
or by telephone or by facsimile telecommunication; special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of two directors unless the board consists of only one director;
in which case, special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of the sole director.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater number is required by law or by the
articles of incorporation. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
unless the act of a greater number is required by statute or by the articles of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors present
<PAGE>
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors entitled to
vote with respect to the subject matter thereof.
ARTICLE VII
EXECUTIVE COMMITTEE
Section l. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the bylaws or otherwise, may designate two
or more directors to constitute an executive committee, which committee, to the
extent provided in such resolution, shall have and exercise all of the authority
of the board of directors in the management of the corporation, except as
otherwise required by law. Vacancies in the membership of the committee shall be
filled by the board of directors at a regular or special meeting of the board of
directors. The executive committee shall keep regular minutes of its proceedings
and report the same to the board when required. The board of directors may
designate one or more directors as alternate members of the executive committee.
The executive committee shall not have authority: (l) To approve any action
which will also require the shareholders' approval; (2) To fill vacancies on the
board or in any committee; (3) To fix the compensation of directors for serving
on the board or on any committee; (4) To amend or repeal the bylaws or adopt new
bylaws; (5) To amend or repeal any resolution of the board which by its express
terms is not so amendable or repealable; (6) To make a distribution
<PAGE>
to the shareholders except at a rate or in a periodic amount or within a price
range determined by the board; or (7) To appoint other committees of the board
or the members thereof.
ARTICLE VIII
NOTICES
Section l. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these bylaws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by facsimile telecommunication. Notice to any
shareholder shall be given at the address furnished by such shareholder for the
purpose of receiving notice. If such address is not given and if no address
appears on the records of the corporation for such shareholder, notice may be
given to such shareholder at the place where the principal executive office of
the corporation is located or by publication at least once in a newspaper of
general circulation in the county in which said principal executive office is
located. If a notice of a shareholders' meeting is sent by mail it shall be sent
by first-class mail, or, in case the corporation has outstanding shares held of
record by 500 or more persons (determined as provided in Section 605 of the
California General Corporation Law) on the record date for the shareholders'
meeting, notice may be by third-class mail.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these bylaws, a waiver thereof in
<PAGE>
writing signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice.
ARTICLE IX
OFFICERS
Section l. The officers of the corporation, except those elected in
accordance with Sec.210 of the California General Corporation Law, shall be
chosen by the board of directors and shall be a president, a vice-president, a
secretary and a chief financial officer. The board of directors may also choose
additional vice-presidents, and one or more assistant secretaries and assistant
treasurers.
Section 2. The board of directors, at its first meeting after each
annual meeting of shareholders, shall choose a president, one or more
vice-presidents, a secretary and a chief financial officer, none of whom need be
a member of the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
<PAGE>
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may
<PAGE>
be prescribed by the board of directors or president, under whose supervision he
shall be. He shall have custody of the corporate seal of the corporation and he,
or an assistant secretary, shall have authority to affix the same to any
instrument requiring it, and when so affixed, it may be attested by his
signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE CHIEF FINANCIAL OFFICER
Section 11. The chief financial officer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as chief financial officer and of the financial condition
of the corporation.
<PAGE>
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The chief financial officer is, for the purpose of executing
any documents requiring the signature of the "Treasurer," deemed to be the
treasurer of the corporation.
THE ASSISTANT TREASURERS
Section 15. The assistant treasurers, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the chief financial officer, perform the
duties and exercise the powers of the chief financial officer and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. Every holder of shares in the corporation shall be entitled
to have a certificate, signed by, or in the name of the corporation by, the
chairman or vice-chairman of the board of directors, or the president or a
vice-president and the chief financial officer or an assistant treasurer, or the
secretary or an assistant secretary of the corporation, certifying the number of
shares and the class or series of shares owned by him in the corporation. If the
shares of the corporation are classified
<PAGE>
or if any class of shares has two or more series, there shall appear on the
certificate either (l) a statement of the rights, preferences, privileges and
restrictions granted to or imposed upon each class or series of shares to be
issued and upon the holders thereof; or (2) a summary of such rights,
preferences, privileges and restrictions with reference to the provisions of the
articles and any certificates of determination establishing the same; or (3) a
statement setting forth the office or agency of the corporation from which
shareholders may obtain, upon request and without charge, a copy of the
statement referred to in item (l) heretofore. Every certificate shall have noted
thereon any information required to be set forth by the California General
Corporation Law and such information shall be set forth in the manner provided
by such law.
Section 2. Any or all of the signatures on the certificate may be
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 such
person were an officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim
<PAGE>
that may be made against it with respect to any such certificate alleged to have
been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
CLOSING OF TRANSFER BOOKS
Section 5. In order that the corporation may determine the shareholders
entitled to notice of any meeting or to vote 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 other lawful action, the board may fix, in
advance, a record date, which shall not be more than 60 nor less than 10 days
prior to the date of such meeting nor more than 60 days prior to any other
action.
A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the meeting
unless the board fixes a new record date for the adjourned meeting, but the
board shall fix a new record date if the meeting is adjourned for more than 45
days from the date set for the original meeting.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and
<PAGE>
to hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of California.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of the capital stock, subject to any provisions of the
articles of incorporation and the California General Corporation Law.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE>
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be the last Saturday
in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the date of its incorporation and the words "Corporate Seal,
California". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted (a) at any regular or special meeting of shareholders at
which a quorum is present or represented, by the affirmative vote of a majority
of the stock entitled to vote, provided notice of the proposed alteration,
amendment or repeal be contained in the notice of such meeting, or (b) by the
affirmative vote of a majority of the board of directors at any regular or
special meeting of the board. The board of directors shall not make or alter any
bylaw specifying a fixed number of directors or the maximum or minimum number of
directors and the directors shall not change a fixed board to a variable board
or vice versa in the bylaws. The board of directors shall not change
<PAGE>
a bylaw, if any, which requires a larger proportion of the vote of directors for
approval than is required by the California General Corporation Law.
ARTICLE XIII
DIRECTORS' ANNUAL REPORT
Section 1. The directors shall cause to be sent to the shareholders not
later than 120 days after the close of the fiscal year, an annual report which
shall include a balance sheet as of the closing date of the last fiscal year,
and an income statement of changes in financial position for said fiscal year.
Said annual report shall be accompanied by any report thereon of independent
accountants or, if there is no such report, the certificate of an authorized
officer of the corporation that such statements were prepared without audit from
the books and records of the corporation. This annual report is hereby waived
whenever the corporation shall have less than 100 shareholders as defined in
Section 605 of the California General Corporation Law. Except when said waiver
applies, the annual report shall be sent to the shareholder at least 15 (or if
sent by third-class mail, 35) days prior to the date of the annual meeting. The
annual report may be sent by third-class mail only if the corporation has
outstanding shares held by 500 or more persons (as determined by the provisions
of Section 605 of the California General Corporation Law) on the record date for
the shareholders' meeting. In addition to the financial statements included in
the annual report, the annual report of the corporation, if it has more than 100
shareholders as defined in Section 605 of the California General Corporation Law
and if it is not subject to the reporting requirements of Section 13 of the
Securities and Exchange Act of 1934, or exempt from such registration by Section
12(g)(2) of said act, shall also describe briefly: (1) Any transaction
(excluding compensation of
<PAGE>
officers and directors) during the previous fiscal year involving an amount in
excess of forty thousand dollars ($40,000) (other than contracts let at
competitive bids or services rendered at prices regulated by law) to which the
corporation or its parent or subsidiary was a party and in which any director or
officer of the corporation or of a subsidiary or (if known to the corporation or
its parent or subsidiary) any holder of more than 10 percent of the outstanding
voting shares of the corporation had a direct or indirect material interest,
naming such person and stating such person's relationship to the corporation,
the nature of such person's interest in the transaction and, where practicable,
the amount of such interest; provided, that in the case of a transaction with a
partnership of which such person is a partner, only the interest of the
partnership need be stated; and provided further that no such report need be
made in the case of transactions approved by the shareholders under subdivision
(a) of Section 310 of the California General Corporation Law. (2) The amount and
circumstances of any indemnification or advances aggregating more than ten
thousand dollars ($10,000) paid during the fiscal year to any officer or
director of the corporation pursuant to Section 317 of the California General
Corporation Law, provided, that no such report need be made in the case of
indemnification approved by the shareholders under paragraph (2) of subdivision
(e) of Section 317 of the California General Corporation Law.
<PAGE>
Exhibit 3.55
RESTATED ARTICLES OF INCORPORATION
OF
MAIL BOXES ETC. USA, INC.
************************
We, Kathleen M. Delaney, the Vice President, and Mark D. Director, the
Assistant Secretary, of Mail Boxes Etc. USA, Inc., a corporation duly organized
and existing under the laws of the State of California, do hereby certify:
That they are the Vice President and the Assistant Secretary, respectively
of Mail Boxes Etc. USA, Inc., a California corporation.
That the articles of incorporation of this corporation were filed by the
Secretary of State on the Nineteenth day of May, 1980.
That an amended and restatement of the articles of incorporation of this
corporation has been approved by the board of directors.
That an amendment and restatement of the articles of incorporation shall
be as said articles are amended through the date of the filing of this
certificate.
The foregoing amendment and restatement of Articles of Incorporation has
been duly approved by the required vote of shareholders in accordance with
Section 902, California Corporations Code. The total number of outstanding
shares of the corporation is 3,172. The number of shares voting in favor of the
amendment equaled or exceeded the vote required. The percentage vote required
was more than 50%.
That the following sets forth the text of the articles of incorporation of
this corporation as amended to the date of this certificate in full:
<PAGE>
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MAIL BOXES ETC. USA, INC.
FIRST: That the name of the corporation is Mail Boxes Etc. USA, Inc.
SECOND: The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporation Code.
THIRD: The total number of shares which the corporation is authorized to issue
is 1,000 shares of Common Stock; all of such shares shall be with no par value.
FOURTH: The duration of this corporation is to be perpetual.
<PAGE>
Each of the undersigned declares under penalty of perjury that the statements
contained in the foregoing certificate are true of their own knowledge. Executed
at 1025 Thomas Jefferson St., Suite 600 East, Washington, DC, on September 25,
1998.
/s/ Kathleen M. Delaney
----------------------------
Kathleen M. Delaney, Vice President
/s/ Mark D. Director
-----------------------------
Mark D. Director, Assistant Secretary
<PAGE>
Exhibit 3.56
MAIL BOXES ETC. USA, INC.
* * * * *
AMENDED AND RESTATED
BYLAWS
* * * * *
ARTICLE I
OFFICES
Section l. The principal executive office shall be located in San
Diego, California.
Section 2. The corporation may also have offices at such other places
both within and without the State of California as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section l. All meetings of shareholders for the election of directors
shall be held in San Diego, State of California, at such place as may be fixed
from time to time by the board of directors, or at such other place either
within or without the State of California as shall be designated from time to
time by the board of directors and stated in the notice of the meeting. Meetings
of shareholders for any other purpose may be held at such time and place, within
or without the State of California, as shall be stated in the notice of the
meeting or in a duly executed waiver of notice
<PAGE>
thereof. If no other place is stated or fixed, shareholders' meetings shall be
held at the principal executive office of the corporation.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held during the last week of June at 10:00 A.M., or at such other
date and time as shall be designated from time to time by the board of directors
and stated in the notice of the meeting, at which they shall elect by a
plurality vote a board of directors and transact such other business as may
properly be brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be given to each shareholder entitled
to vote thereat not less than 10 (or, if sent by third-class mail, 30) nor more
than 60 days before the date of the meeting. Notice may be sent by third-class
mail only if the outstanding shares of the corporation are held of record by 500
or more persons (determined as provided in section 605 of the California General
Corporation Law) on the record date for the shareholders' meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section l. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of California as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president, the board of directors, or the
holders of not less than 10 percent of all the shares entitled to vote at
<PAGE>
the meeting and if the corporation has a chairman of the board of directors,
special meetings of the shareholders may be called by the chairman.
Section 3. Written or printed notice of a special meeting of
shareholders, stating the time, place and purpose or purposes thereof, shall be
given to each shareholder entitled to vote thereat not less than 10 (or, if sent
by third-class mail, 30) nor more than 60 days before the date fixed for the
meeting. Notice may be sent by third-class mail only if the outstanding shares
of the corporation are held of record by 500 or more persons (determined as
provided in section 605 of the California General Corporation Law) on the record
date for the shareholders' meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section l. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the original meeting.
<PAGE>
Section 2. If a quorum is present, the affirmative vote of a majority
of the shares of stock represented and voting at the meeting (which shares
voting affirmatively also constitute at least a majority of the required
quorum), shall be the act of the shareholders unless the vote of a greater
number or voting by classes is required by law or the articles of incorporation.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact. In all
elections for directors, every shareholder entitled to vote shall have the right
to vote, in person or by proxy, the number of shares of stock owned by him for
as many persons as there are directors to be elected, or, upon satisfaction of
the requirements set forth in Section 708(b) of the California General
Corporation Law, to cumulate the vote of said shares, and give one candidate a
number of votes equal to the number of directors to be elected multiplied by the
number of votes to which the shareholder's shares are normally entitled, or to
distribute the votes on the same principle among as many candidates as he may
see fit. Section 708(b) of the California General Corporation Law provides that
no shareholder shall be entitled to cumulate votes for any candidate for the
office of director unless such candidates' names have been placed in nomination
prior to the voting and at least one shareholder has given notice at the meeting
prior to the voting of his intention to cumulate his votes.
Section 4. Unless otherwise provided in the articles, any action,
except election of directors, which may be taken at any annual or special
meeting of shareholders may be taken without a meeting and without prior notice,
if a consent in writing, setting forth the action so taken, shall be signed by
the holders of outstanding shares having not less than the minimum number of
votes that
<PAGE>
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Except to fill a vacancy
in the board of directors not filled by the directors, directors may not be
elected by written consent except by unanimous written consent of all shares
entitled to vote for the election of directors. Any election of a director to
fill a vacancy (other than a vacancy created by removal) not filled by the
directors requires the written consent of a majority of the shares entitled to
vote.
ARTICLE V
DIRECTORS
Section l. The number of directors shall be 3. Directors need not be
residents of the State of California nor shareholders of the corporation. The
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
Section 2. Unless otherwise provided in the articles of incorporation,
vacancies, except for a vacancy created by the removal of a director, and newly
created directorships resulting from any increase in the number of directors may
be filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify. Unless
otherwise provided in the articles of incorporation any vacancy created by the
removal of a director shall be filled by the shareholders by the vote of a
majority of the shares entitled to vote at a meeting at which a quorum is
present. Any vacancies, which may be filled by directors and are not filled by
the directors, may
<PAGE>
be filled by the shareholders by a majority of the shares entitled to vote at a
meeting at which a quorum is present.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these bylaws directed or required to be exercised or done by
the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
California, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section l. Meetings of the board of directors, regular or special, may
be held either within or without the State of California.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
<PAGE>
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 2 days' notice to each director, either personally or by mail
or by telephone or by facsimile telecommunication; special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of two directors unless the board consists of only one director;
in which case, special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of the sole director.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
Section 6. A majority of the directors shall constitute a quorum for
the transaction of business unless a greater number is required by law or by the
articles of incorporation. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
unless the act of a greater number is required by statute or by the articles of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors present
<PAGE>
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors entitled to
vote with respect to the subject matter thereof.
ARTICLE VII
EXECUTIVE COMMITTEE
Section l. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the bylaws or otherwise, may designate two
or more directors to constitute an executive committee, which committee, to the
extent provided in such resolution, shall have and exercise all of the authority
of the board of directors in the management of the corporation, except as
otherwise required by law. Vacancies in the membership of the committee shall be
filled by the board of directors at a regular or special meeting of the board of
directors. The executive committee shall keep regular minutes of its proceedings
and report the same to the board when required. The board of directors may
designate one or more directors as alternate members of the executive committee.
The executive committee shall not have authority: (l) To approve any action
which will also require the shareholders' approval; (2) To fill vacancies on the
board or in any committee; (3) To fix the compensation of directors for serving
on the board or on any committee; (4) To amend or repeal the bylaws or adopt new
bylaws; (5) To amend or repeal any resolution of the board which by its express
terms is not so amendable or repealable; (6) To make a distribution
<PAGE>
to the shareholders except at a rate or in a periodic amount or within a price
range determined by the board; or (7) To appoint other committees of the board
or the members thereof.
ARTICLE VIII
NOTICES
Section l. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these bylaws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by facsimile telecommunication. Notice to any
shareholder shall be given at the address furnished by such shareholder for the
purpose of receiving notice. If such address is not given and if no address
appears on the records of the corporation for such shareholder, notice may be
given to such shareholder at the place where the principal executive office of
the corporation is located or by publication at least once in a newspaper of
general circulation in the county in which said principal executive office is
located. If a notice of a shareholders' meeting is sent by mail it shall be sent
by first-class mail, or, in case the corporation has outstanding shares held of
record by 500 or more persons (determined as provided in Section 605 of the
California General Corporation Law) on the record date for the shareholders'
meeting, notice may be by third-class mail.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these bylaws, a waiver thereof in
<PAGE>
writing signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice.
ARTICLE IX
OFFICERS
Section l. The officers of the corporation, except those elected in
accordance with Sec.210 of the California General Corporation Law, shall be
chosen by the board of directors and shall be a president, a vice-president, a
secretary and a chief financial officer. The board of directors may also choose
additional vice-presidents, and one or more assistant secretaries and assistant
treasurers.
Section 2. The board of directors, at its first meeting after each
annual meeting of shareholders, shall choose a president, one or more
vice-presidents, a secretary and a chief financial officer, none of whom need be
a member of the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
<PAGE>
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may
<PAGE>
be prescribed by the board of directors or president, under whose supervision he
shall be. He shall have custody of the corporate seal of the corporation and he,
or an assistant secretary, shall have authority to affix the same to any
instrument requiring it, and when so affixed, it may be attested by his
signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE CHIEF FINANCIAL OFFICER
Section 11. The chief financial officer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as chief financial officer and of the financial condition
of the corporation.
<PAGE>
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The chief financial officer is, for the purpose of
executing any documents requiring the signature of the "Treasurer," deemed to be
the treasurer of the corporation.
THE ASSISTANT TREASURERS
Section 15. The assistant treasurers, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the chief financial officer, perform the
duties and exercise the powers of the chief financial officer and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. Every holder of shares in the corporation shall be entitled
to have a certificate, signed by, or in the name of the corporation by, the
chairman or vice-chairman of the board of directors, or the president or a
vice-president and the chief financial officer or an assistant treasurer, or the
secretary or an assistant secretary of the corporation, certifying the number of
shares and the class or series of shares owned by him in the corporation. If the
shares of the corporation are
<PAGE>
classified or if any class of shares has two or more series, there shall appear
on the certificate either (l) a statement of the rights, preferences, privileges
and restrictions granted to or imposed upon each class or series of shares to be
issued and upon the holders thereof; or (2) a summary of such rights,
preferences, privileges and restrictions with reference to the provisions of the
articles and any certificates of determination establishing the same; or (3) a
statement setting forth the office or agency of the corporation from which
shareholders may obtain, upon request and without charge, a copy of the
statement referred to in item (l) heretofore. Every certificate shall have noted
thereon any information required to be set forth by the California General
Corporation Law and such information shall be set forth in the manner provided
by such law.
Section 2. Any or all of the signatures on the certificate may be
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 such
person were an officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim
<PAGE>
that may be made against it with respect to any such certificate alleged to have
been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
CLOSING OF TRANSFER BOOKS
Section 5. In order that the corporation may determine the shareholders
entitled to notice of any meeting or to vote 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 other lawful action, the board may fix, in
advance, a record date, which shall not be more than 60 nor less than 10 days
prior to the date of such meeting nor more than 60 days prior to any other
action.
A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the meeting
unless the board fixes a new record date for the adjourned meeting, but the
board shall fix a new record date if the meeting is adjourned for more than 45
days from the date set for the original meeting.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and
<PAGE>
to hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of California.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of the capital stock, subject to any provisions of the
articles of incorporation and the California General Corporation Law.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE>
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be the last
Saturday in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the date of its incorporation and the words "Corporate Seal,
California". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted (a) at any regular or special meeting of shareholders at
which a quorum is present or represented, by the affirmative vote of a majority
of the stock entitled to vote, provided notice of the proposed alteration,
amendment or repeal be contained in the notice of such meeting, or (b) by the
affirmative vote of a majority of the board of directors at any regular or
special meeting of the board. The board of directors shall not make or alter any
bylaw specifying a fixed number of directors or the maximum or minimum number of
directors and the directors shall not change a fixed board to a variable board
or vice versa in the bylaws. The board of directors shall not change
<PAGE>
a bylaw, if any, which requires a larger proportion of the vote of directors for
approval than is required by the California General Corporation Law.
ARTICLE XIII
DIRECTORS' ANNUAL REPORT
Section 1. The directors shall cause to be sent to the shareholders not
later than 120 days after the close of the fiscal year, an annual report which
shall include a balance sheet as of the closing date of the last fiscal year,
and an income statement of changes in financial position for said fiscal year.
Said annual report shall be accompanied by any report thereon of independent
accountants or, if there is no such report, the certificate of an authorized
officer of the corporation that such statements were prepared without audit from
the books and records of the corporation. This annual report is hereby waived
whenever the corporation shall have less than 100 shareholders as defined in
Section 605 of the California General Corporation Law. Except when said waiver
applies, the annual report shall be sent to the shareholder at least 15 (or if
sent by third-class mail, 35) days prior to the date of the annual meeting. The
annual report may be sent by third-class mail only if the corporation has
outstanding shares held by 500 or more persons (as determined by the provisions
of Section 605 of the California General Corporation Law) on the record date for
the shareholders' meeting. In addition to the financial statements included in
the annual report, the annual report of the corporation, if it has more than 100
shareholders as defined in Section 605 of the California General Corporation Law
and if it is not subject to the reporting requirements of Section 13 of the
Securities and Exchange Act of 1934, or exempt from such registration by Section
12(g)(2) of said act, shall also describe briefly: (1) Any transaction
(excluding compensation of
<PAGE>
officers and directors) during the previous fiscal year involving an amount in
excess of forty thousand dollars ($40,000) (other than contracts let at
competitive bids or services rendered at prices regulated by law) to which the
corporation or its parent or subsidiary was a party and in which any director or
officer of the corporation or of a subsidiary or (if known to the corporation or
its parent or subsidiary) any holder of more than 10 percent of the outstanding
voting shares of the corporation had a direct or indirect material interest,
naming such person and stating such person's relationship to the corporation,
the nature of such person's interest in the transaction and, where practicable,
the amount of such interest; provided, that in the case of a transaction with a
partnership of which such person is a partner, only the interest of the
partnership need be stated; and provided further that no such report need be
made in the case of transactions approved by the shareholders under subdivision
(a) of Section 310 of the California General Corporation Law. (2) The amount and
circumstances of any indemnification or advances aggregating more than ten
thousand dollars ($10,000) paid during the fiscal year to any officer or
director of the corporation pursuant to Section 317 of the California General
Corporation Law, provided, that no such report need be made in the case of
indemnification approved by the shareholders under paragraph (2) of subdivision
(e) of Section 317 of the California General Corporation Law.
<PAGE>
Exhibit 3.57
RESTATED ARTICLES OF INCORPORATION
OF
MCWHORTER'S, INC.
************************
We, Kathleen M. Delaney, the Vice President, and Mark D. Director, the
Assistant Secretary, of McWhorter's, Inc., a corporation duly organized and
existing under the laws of the State of California, do hereby certify:
That they are the Vice President and the Assistant Secretary, respectively
of McWhorter's, Inc., a California corporation.
That the articles of incorporation of this corporation were filed by the
Secretary of State on the Twentieth day of September, 1978.
That an amended and restatement of the articles of incorporation of this
corporation has been approved by the board of directors.
That an amendment and restatement of the articles of incorporation shall
be as said articles are amended through the date of the filing of this
certificate.
The foregoing amendment and restatement of Articles of Incorporation has
been duly approved by the required vote of shareholders in accordance with
Section 902, California Corporations Code. The total number of outstanding
shares of the corporation is 100. The number of shares voting in favor of the
amendment equaled or exceeded the vote required. The percentage vote required
was more than 50%.
That the following sets forth the text of the articles of incorporation of
this corporation as amended to the date of this certificate in full:
<PAGE>
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MCWHORTER'S, INC.
FIRST: That the name of the corporation is McWhorter's, Inc.
SECOND: The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporation Code.
THIRD: The total number of shares which the corporation is authorized to issue
is 1,000 shares of Common Stock; all of such shares shall be with no par value.
FOURTH: The duration of this corporation is to be perpetual.
<PAGE>
Each of the undersigned declares under penalty of perjury that the statements
contained in the foregoing certificate are true of their own knowledge. Executed
at 1025 Thomas Jefferson St., Suite 600 East, Washington, DC, on September 25,
1998.
/s/ Kathleen M. Delaney
------------------------------------
Kathleen M. Delaney, Vice President
/s/ Mark D. Director
------------------------------------
Mark D. Director, Assistant Secretary
<PAGE>
Exhibit 3.58
MCWHORTER'S, INC.
* * * * *
AMENDED AND RESTATED
BYLAWS
* * * * *
ARTICLE I
OFFICES
Section l. The principal executive office shall be located in San Jose,
California.
Section 2. The corporation may also have offices at such other places
both within and without the State of California as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section l. All meetings of shareholders for the election of directors
shall be held in San Jose, State of California, at such place as may be fixed
from time to time by the board of directors, or at such other place either
within or without the State of California as shall be designated from time to
time by the board of directors and stated in the notice of the meeting. Meetings
of shareholders for any other purpose may be held at such time and place, within
or without the State of California, as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof. If no
<PAGE>
other place is stated or fixed, shareholders' meetings shall be held at the
principal executive office of the corporation.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held during the last week of June at 10:00 A.M., or at such other
date and time as shall be designated from time to time by the board of directors
and stated in the notice of the meeting, at which they shall elect by a
plurality vote a board of directors and transact such other business as may
properly be brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be given to each shareholder entitled
to vote thereat not less than 10 (or, if sent by third-class mail, 30) nor more
than 60 days before the date of the meeting. Notice may be sent by third-class
mail only if the outstanding shares of the corporation are held of record by 500
or more persons (determined as provided in section 605 of the California General
Corporation Law) on the record date for the shareholders' meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section l. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of California as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president, the board of directors, or the
holders of not less than 10 percent of all the shares entitled to vote at
<PAGE>
the meeting and if the corporation has a chairman of the board of directors,
special meetings of the shareholders may be called by the chairman.
Section 3. Written or printed notice of a special meeting of
shareholders, stating the time, place and purpose or purposes thereof, shall be
given to each shareholder entitled to vote thereat not less than 10 (or, if sent
by third-class mail, 30) nor more than 60 days before the date fixed for the
meeting. Notice may be sent by third-class mail only if the outstanding shares
of the corporation are held of record by 500 or more persons (determined as
provided in section 605 of the California General Corporation Law) on the record
date for the shareholders' meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section l. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the original meeting.
<PAGE>
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented and voting at the meeting (which shares voting
affirmatively also constitute at least a majority of the required quorum), shall
be the act of the shareholders unless the vote of a greater number or voting by
classes is required by law or the articles of incorporation.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact. In all
elections for directors, every shareholder entitled to vote shall have the right
to vote, in person or by proxy, the number of shares of stock owned by him for
as many persons as there are directors to be elected, or, upon satisfaction of
the requirements set forth in Section 708(b) of the California General
Corporation Law, to cumulate the vote of said shares, and give one candidate a
number of votes equal to the number of directors to be elected multiplied by the
number of votes to which the shareholder's shares are normally entitled, or to
distribute the votes on the same principle among as many candidates as he may
see fit. Section 708(b) of the California General Corporation Law provides that
no shareholder shall be entitled to cumulate votes for any candidate for the
office of director unless such candidates' names have been placed in nomination
prior to the voting and at least one shareholder has given notice at the meeting
prior to the voting of his intention to cumulate his votes.
Section 4. Unless otherwise provided in the articles, any action, except
election of directors, which may be taken at any annual or special meeting of
shareholders may be taken without a meeting and without prior notice, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding shares having not less than the minimum number of votes
that
<PAGE>
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Except to fill a vacancy
in the board of directors not filled by the directors, directors may not be
elected by written consent except by unanimous written consent of all shares
entitled to vote for the election of directors. Any election of a director to
fill a vacancy (other than a vacancy created by removal) not filled by the
directors requires the written consent of a majority of the shares entitled to
vote.
ARTICLE V
DIRECTORS
Section l. The number of directors shall be 3. Directors need not be
residents of the State of California nor shareholders of the corporation. The
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
Section 2. Unless otherwise provided in the articles of incorporation,
vacancies, except for a vacancy created by the removal of a director, and newly
created directorships resulting from any increase in the number of directors may
be filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify. Unless
otherwise provided in the articles of incorporation any vacancy created by the
removal of a director shall be filled by the shareholders by the vote of a
majority of the shares entitled to vote at a meeting at which a quorum is
present. Any vacancies, which may be filled by directors and are not filled by
the directors, may
<PAGE>
be filled by the shareholders by a majority of the shares entitled to vote at a
meeting at which a quorum is present.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these bylaws directed or required to be exercised or done by
the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
California, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for services to the corporation as directors, officers or
otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section l. Meetings of the board of directors, regular or special, may
be held either within or without the State of California.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
<PAGE>
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 2 days' notice to each director, either personally or by mail
or by telephone or by facsimile telecommunication; special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of two directors unless the board consists of only one director;
in which case, special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of the sole director.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater number is required by law or by the
articles of incorporation. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
unless the act of a greater number is required by statute or by the articles of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors present
<PAGE>
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors entitled to
vote with respect to the subject matter thereof.
ARTICLE VII
EXECUTIVE COMMITTEE
Section l. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the bylaws or otherwise, may designate two
or more directors to constitute an executive committee, which committee, to the
extent provided in such resolution, shall have and exercise all of the authority
of the board of directors in the management of the corporation, except as
otherwise required by law. Vacancies in the membership of the committee shall be
filled by the board of directors at a regular or special meeting of the board of
directors. The executive committee shall keep regular minutes of its proceedings
and report the same to the board when required. The board of directors may
designate one or more directors as alternate members of the executive committee.
The executive committee shall not have authority: (l) To approve any action
which will also require the shareholders' approval; (2) To fill vacancies on the
board or in any committee; (3) To fix the compensation of directors for serving
on the board or on any committee; (4) To amend or repeal the bylaws or adopt new
bylaws; (5) To amend or repeal any resolution of the board which by its express
terms is not so amendable or repealable; (6) To make a distribution
<PAGE>
to the shareholders except at a rate or in a periodic amount or within a price
range determined by the board; or (7) To appoint other committees of the board
or the members thereof.
ARTICLE VIII
NOTICES
Section l. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these bylaws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by facsimile telecommunication. Notice to any
shareholder shall be given at the address furnished by such shareholder for the
purpose of receiving notice. If such address is not given and if no address
appears on the records of the corporation for such shareholder, notice may be
given to such shareholder at the place where the principal executive office of
the corporation is located or by publication at least once in a newspaper of
general circulation in the county in which said principal executive office is
located. If a notice of a shareholders' meeting is sent by mail it shall be sent
by first-class mail, or, in case the corporation has outstanding shares held of
record by 500 or more persons (determined as provided in Section 605 of the
California General Corporation Law) on the record date for the shareholders'
meeting, notice may be by third-class mail.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these bylaws, a waiver thereof in
<PAGE>
writing signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice.
ARTICLE IX
OFFICERS
Section l. The officers of the corporation, except those elected in
accordance with Sec.210 of the California General Corporation Law, shall be
chosen by the board of directors and shall be a president, a vice-president, a
secretary and a chief financial officer. The board of directors may also choose
additional vice-presidents, and one or more assistant secretaries and assistant
treasurers.
Section 2. The board of directors, at its first meeting after each
annual meeting of shareholders, shall choose a president, one or more
vice-presidents, a secretary and a chief financial officer, none of whom need be
a member of the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
<PAGE>
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may
<PAGE>
be prescribed by the board of directors or president, under whose supervision he
shall be. He shall have custody of the corporate seal of the corporation and he,
or an assistant secretary, shall have authority to affix the same to any
instrument requiring it, and when so affixed, it may be attested by his
signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE CHIEF FINANCIAL OFFICER
Section 11. The chief financial officer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as chief financial officer and of the financial condition
of the corporation.
<PAGE>
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The chief financial officer is, for the purpose of executing
any documents requiring the signature of the "Treasurer," deemed to be the
treasurer of the corporation.
THE ASSISTANT TREASURERS
Section 15. The assistant treasurers, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the chief financial officer, perform the
duties and exercise the powers of the chief financial officer and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. Every holder of shares in the corporation shall be entitled
to have a certificate, signed by, or in the name of the corporation by, the
chairman or vice-chairman of the board of directors, or the president or a
vice-president and the chief financial officer or an assistant treasurer, or the
secretary or an assistant secretary of the corporation, certifying the number of
shares and the class or series of shares owned by him in the corporation. If the
shares of the corporation are classi-
<PAGE>
fied or if any class of shares has two or more series, there shall appear on the
certificate either (l) a statement of the rights, preferences, privileges and
restrictions granted to or imposed upon each class or series of shares to be
issued and upon the holders thereof; or (2) a summary of such rights,
preferences, privileges and restrictions with reference to the provisions of the
articles and any certificates of determination establishing the same; or (3) a
statement setting forth the office or agency of the corporation from which
shareholders may obtain, upon request and without charge, a copy of the
statement referred to in item (l) heretofore. Every certificate shall have noted
thereon any information required to be set forth by the California General
Corporation Law and such information shall be set forth in the manner provided
by such law.
Section 2. Any or all of the signatures on the certificate may be
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 such
person were an officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim
<PAGE>
that may be made against it with respect to any such certificate alleged to have
been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
CLOSING OF TRANSFER BOOKS
Section 5. In order that the corporation may determine the shareholders
entitled to notice of any meeting or to vote 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 other lawful action, the board may fix, in
advance, a record date, which shall not be more than 60 nor less than 10 days
prior to the date of such meeting nor more than 60 days prior to any other
action.
A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the meeting
unless the board fixes a new record date for the adjourned meeting, but the
board shall fix a new record date if the meeting is adjourned for more than 45
days from the date set for the original meeting.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and
<PAGE>
to hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of California.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of the capital stock, subject to any provisions of the
articles of incorporation and the California General Corporation Law.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE>
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be the last Saturday
in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the date of its incorporation and the words "Corporate Seal,
California". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted (a) at any regular or special meeting of shareholders at
which a quorum is present or represented, by the affirmative vote of a majority
of the stock entitled to vote, provided notice of the proposed alteration,
amendment or repeal be contained in the notice of such meeting, or (b) by the
affirmative vote of a majority of the board of directors at any regular or
special meeting of the board. The board of directors shall not make or alter any
bylaw specifying a fixed number of directors or the maximum or minimum number of
directors and the directors shall not change a fixed board to a variable board
or vice versa in the bylaws. The board of directors shall not change
<PAGE>
a bylaw, if any, which requires a larger proportion of the vote of directors for
approval than is required by the California General Corporation Law.
ARTICLE XIII
DIRECTORS' ANNUAL REPORT
Section 1. The directors shall cause to be sent to the shareholders not
later than 120 days after the close of the fiscal year, an annual report which
shall include a balance sheet as of the closing date of the last fiscal year,
and an income statement of changes in financial position for said fiscal year.
Said annual report shall be accompanied by any report thereon of independent
accountants or, if there is no such report, the certificate of an authorized
officer of the corporation that such statements were prepared without audit from
the books and records of the corporation. This annual report is hereby waived
whenever the corporation shall have less than 100 shareholders as defined in
Section 605 of the California General Corporation Law. Except when said waiver
applies, the annual report shall be sent to the shareholder at least 15 (or if
sent by third-class mail, 35) days prior to the date of the annual meeting. The
annual report may be sent by third-class mail only if the corporation has
outstanding shares held by 500 or more persons (as determined by the provisions
of Section 605 of the California General Corporation Law) on the record date for
the shareholders' meeting. In addition to the financial statements included in
the annual report, the annual report of the corporation, if it has more than 100
shareholders as defined in Section 605 of the California General Corporation Law
and if it is not subject to the reporting requirements of Section 13 of the
Securities and Exchange Act of 1934, or exempt from such registration by Section
12(g)(2) of said act, shall also describe briefly: (1) Any transaction
(excluding compensation of
<PAGE>
officers and directors) during the previous fiscal year involving an amount in
excess of forty thousand dollars ($40,000) (other than contracts let at
competitive bids or services rendered at prices regulated by law) to which the
corporation or its parent or subsidiary was a party and in which any director or
officer of the corporation or of a subsidiary or (if known to the corporation or
its parent or subsidiary) any holder of more than 10 percent of the outstanding
voting shares of the corporation had a direct or indirect material interest,
naming such person and stating such person's relationship to the corporation,
the nature of such person's interest in the transaction and, where practicable,
the amount of such interest; provided, that in the case of a transaction with a
partnership of which such person is a partner, only the interest of the
partnership need be stated; and provided further that no such report need be
made in the case of transactions approved by the shareholders under subdivision
(a) of Section 310 of the California General Corporation Law. (2) The amount and
circumstances of any indemnification or advances aggregating more than ten
thousand dollars ($10,000) paid during the fiscal year to any officer or
director of the corporation pursuant to Section 317 of the California General
Corporation Law, provided, that no such report need be made in the case of
indemnification approved by the shareholders under paragraph (2) of subdivision
(e) of Section 317 of the California General Corporation Law.
<PAGE>
CERTIFICATE OF AMENDMENT AND RESTATEMENT
TO THE CERTIFICATE OF FORMATION
OF
MILE HIGH OFFICE SUPPLY, LLC
1. The name of the limited liability company is MILE HIGH OFFICE SUPPLY, LLC,
which was formed on March 30, 1998 under the name MILE HIGH OFFICE SUPPLY, LLC.
2. The Certificate of Formation of the limited liability company is hereby
amended as follows:
FIRST: The name of the limited liability company formed hereby US
OFFICE PRODUCTS, COLORADO DISTRICT, LLC.
SECOND: The address of the company's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of
New Castle. The name of the company's registered agent as such
address is The Corporation Trust Company.
THIRD: The purpose of the company is to engage in any lawful act or
activity for which a limited liability company may be
organized under the Delaware Limited Liability Company Act.
FOURTH: No member of the company shall be obligated personally for any
debt, obligation or liability of the company solely by reason
of being a member of the company. The failure to observe any
formalities relating to the business or affairs of the company
shall not be grounds for imposing personal liability on any
member for the debts, obligations or liabilities of the
company.
FIFTH: The company reserves the right to amend or repeal any
provision contained herein in the manner now or hereafter
prescribed by law.
3. This Certificate of Amendment and Restatement shall be effective on October
1, 1998.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment and Restatement of Mile High Office Supply, LLC this Twenty-Fifth day
of September, 1998.
U.S. OFFICE PRODUCTS COMPANY
Its Sole Member
By: /s/ Mark D. Director
------------------------------------------
Mark D. Director
Executive Vice President - Administration
<PAGE>
Exhibit 3.60
AMENDED AND RESTATED
OPERATING AGREEMENT OF
MILE HIGH OFFICE SUPPLY, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
THIS AMENDED AND RESTATED OPERATING AGREEMENT (this "Agreement") of
Mile High Office Supply, L.L.C., a Delaware limited liability company (the
"Company"), is entered into as of April 24, 1998 and shall constitute the
"limited liability company agreement" of the Company within the meaning of
Section 18-101(7) of the Delaware Limited Liability Company Act, Title 6,
Delaware Corporations Code, Section 18-101 et seq., as amended (the "Act").
WHEREAS, on March 30, 1998 the Company entered into an operating
agreement, constituting the "limited liability company agreement" of the Company
within the meaning of Section 18-101(7) of the Act;
WHEREAS, the Company desires to amend Section 1.12 of such operating
agreement to authorize the Member to delegate to one or more managers the
management and operation of the Company;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company hereby amends and
restates such operating agreement in its entirety as follows:
1.1 Except as otherwise provided in this Agreement, the default
provisions of the Act shall apply to the Company.
1.2 U.S. Office Products Company, a Delaware corporation, shall be the
sole "member" of the Company within the meaning of Section 18-101(11) of the Act
(the "Member").
1.3 The Member hereby enters into and forms the Company as a limited
liability company in accordance with the Act. The name of the Company shall be
"Mile High Office Supply, L.L.C."
1.4 The Company shall maintain a Delaware registered office and agent
for the service of process as required by the Act. In the event the registered
agent ceases to act as such for any reason or the registered office shall
change, the Member shall promptly designate a replacement registered agent or
file a notice of change of address, as the case may be.
1.5 The purpose and scope of the Company shall be to to engage in any
lawful act or activities as shall be determined by the Member in its sole and
absolute discretion.
1.6 The term (the "Term") of the Company shall begin as of the date of
filing of the Certificate of Formation for the Company in accordance with
Section 18-201 of the Act and shall
<PAGE>
continue until dissolved by the Member in its sole and absolute discretion.
Except as specifically provided in this Section 1.6, the Company shall not be
dissolved prior to the end of its Term.
1.7 Title to all Company property shall be held in the name of the
Company; provided, however, that the Company shall make such distributions of
cash and/or property to the Member from time to time as the Member shall
determine in its sole and absolute discretion.
1.8 Except as otherwise required by applicable law, the Member shall
have no personal liability for the debts and obligations of the Company.
1.9 The Member shall have no obligation to make any contributions to
the capital of the Company and shall make only such contributions as the Member
shall determine in its sole and absolute discretion.
1.10 The Member shall have no obligation to provide any services to the
Company and shall provide only such services as the Member shall determine in
its sole and absolute discretion.
1.11 The Company shall indemnify the Member to the fullest extent
permitted by law.
1.12 Pursuant to Sections 18-402 and 18-407 of the Act, the Member
shall delegate the management and operation of the Company to Vass Sirpolaidis,
Lynne Sirpolaidis, Kathleen M. Delaney, and Mark Director, who shall act as
managers of the Company. Vass Sirpolaidis shall hold the offices of President
and Treasurer of the Company, Lynne Sirpolaidis shall hold the offices of
Vice-President and Secretary of the Company, Kathleen M. Delaney shall hold the
office of Vice-President, and Mark Director shall hold the office of
Vice-President and Assistant Secretary of the Company, each to serve until their
successors are duly elected and qualified. Notwithstanding any provision of this
Agreement to the contrary, any contract, agreement, deed, lease, note or other
document or instrument executed on behalf of the Company by the Member or
managers shall be deemed to have been duly executed and third parties shall be
entitled to rely upon the Member's and/or managers' power to bind the Company
without otherwise ascertaining that the requirements of this Agreement have been
satisfied.
1.13 The "Mile High Office Supply" name and mark are the property of
the Member. The Company's authority to use such name and mark may be withdrawn
by the Member at any time without compensation to the Company. Following the
dissolution and liquidation of the Company, all right, title and interest in and
to such name and mark shall be held solely by the Member.
1.14 The interpretation and enforceability of this Agreement and the
rights and liabilities of the Member as such shall be governed by the laws of
the State of Delaware as such laws are applied in connection with limited
liability company operating agreements entered into and wholly performed upon in
Delaware by residents of Delaware. To the extent permitted by the Act and other
applicable law, the provisions of this Agreement shall supersede any contrary
provisions of the Act or other applicable law.
<PAGE>
1.15 In the event any provision of this Agreement is determined to be
invalid or unenforceable, such provision shall be deemed severed from the
remainder of this Agreement and replaced with a valid and enforceable provision
as similar in intent as reasonably possible to the provision so severed, and
shall not cause the invalidity or unenforceability of the remainder of this
Agreement.
1.16 This Agreement may be amended, in whole or in part, only through a
written amendment executed by the Member.
1.17 This Agreement contains the entire understanding and intent of the
Member regarding the Company and supersedes any prior written or oral agreement
respecting the Company. There are no representations, agreements, arrangements,
or understandings, oral or written, of the Member relating to the Company which
are not fully expressed in this Agreement.
IN WITNESS WHEREOF, the Member has executed this Agreement as
of the date first above written.
U.S. OFFICE PRODUCTS COMPANY
Sole Member
- ---------------------------------------
Mark D. Director
Executive Vice-President, Administration
and General Counsel
<PAGE>
Exhibit 3.61
ARTICLES OF AMENDMENT AND RESTATEMENT TO THE CHARTER
CORPORATE CONTROL NUMBER (IF KNOWN): 98141200
PURSUANT TO THE PROVISIONS OF SECTION 48-20-106 OF THE TENNESSEE BUSINESS
CORPORATION ACT, THE UNDERSIGNED CORPORATION ADOPTS THE FOLLOWING ARTICLES OF
AMENDMENT AND RESTATEMENT TO THE ITS CHARTER:
PLEASE MARK THE BLOCK THAT APPLIES:
/ / AMENDMENT IS TO BE EFFECTIVE WHEN FILED BY THE SECRETARY OF STATE.
/ X / AMENDMENT IS TO BE EFFECTIVE ON OCTOBER 1, 1998.
(NOT TO BE LATER THAN THE 90TH DAY AFTER THE DATE THIS DOCUMENT IS FILED.) IF
NEITHER BLOCK IS CHECKED, THE AMENDMENT WILL BE EFFECTIVE AT THE TIME OF FILING.
1. PLEASE INSERT THE NAME OF THE CORPORATION AS IT APPEARS ON
RECORD: MILLS MORRIS BUSINESS PRODUCTS, INC.
IF CHANGING THE NAME, INSERT NEW NAME BELOW:
US OFFICE PRODUCTS, MID-SOUTH DISTRICT, INC.
2. PLEASE INSERT ANY CHANGES THAT APPLY:
A. PRINCIPAL ADDRESS: N/A
B. REGISTERED AGENT: N/A
C. REGISTERED ADDRESS: N/A
D. OTHER CHANGES: SEE EXHIBIT A ATTACHED HERETO AND
MADE A PART HEREOF
3. THE CORPORATION IS FOR PROFIT.
4. THE MANNER (IF NOT SET IN THE AMENDMENT) FOR IMPLEMENTATION OF ANY
EXCHANGE, RECLASSIFICATION, OR CANCELLATION OF ISSUED SHARES IS AS
FOLLOWS:
UPON THE EFFECTIVENESS OF THIS AMENDMENT, THE 10 SHARES OF COMMON
STOCK, NO PAR VALUE (THE "OLD STOCK") OF THE CORPORATION THAT ARE
ISSUED AND OUTSTANDING SHALL BE
<PAGE>
CONVERTED INTO 1,000 ISSUED SHARES OF COMMON STOCK, NO PAR VALUE, OF
THE CORPORATION (THE "NEW STOCK") ON THE BASIS OF 100 SHARES OF NEW
STOCK FOR EACH SHARE OF OLD STOCK.
UPON THE EFFECTIVENESS OF THIS AMENDMENT, HOLDERS OF THE ISSUED SHARES
OF THE OLD STOCK, UPON SURRENDERING CERTIFICATES EVIDENCING THE ISSUED
SHARES OF OLD STOCK FOR CANCELLATION, SHALL BE ENTITLED TO RECEIVE
CERTIFICATES FOR SHARES OF THE NEW STOCK ON THE BASIS SET FORTH ABOVE.
5. THIS AMENDMENT WAS ADOPTED ON SEPTEMBER 25, 1998.
(NOTE: PLEASE MARK THE BLOCK THAT APPLIES)
/ / THE INCORPORATERS.
/ / THE BOARD OF DIRECTORS WITHOUT SHAREHOLDER APPROVAL, AS SUCH WAS NOT
REQUIRED.
/ X / THE SHAREHOLDERS.
Vice President /s/ Mark D. Director
- ------------------------------------- ---------------------------------
Signer's Capacity Signature
Mark D. Director
---------------------------------
Name of Signer (Typed or Printed)
<PAGE>
EXHIBIT A
The Articles of Incorporation are amended and restated in their
entirety as follows:
FIRST: The name of the corporation is US OFFICE PRODUCTS, MID-SOUTH
DISTRICT, INC.
SECOND: The number of shares of stock the corporation is authorized to
issue is 1,000 shares of common stock, without par value.
THIRD: The complete address of the corporation's registered office in
Tennessee is 530 Gay Street, Knoxville, TN 37902, and the registered
agent is CT Corporation System.
FOURTH: The corporation is for profit.
FIFTH: The existence of the corporation shall be perpetual.
SIXTH: The purpose for which the corporation is organized is to engage
in any lawful act for which a corporation shall be organized under the
General Corporation Act of the State of Tennessee. This corporation
may, either as principal or agent, and either alone or in conjunction
with other corporations, firms, or individuals, do all and everything
necessary, suitable, convenient or proper, for and in connection with
or incident to the accomplishment of its purposes, or designed directly
or indirectly to promote the interests of this corporation or enhance
the value of its properties; and in general to do any and all things or
exercise any and all powers, rights and privileges which a corporation
may now or hereafter be organized to do or exercise, under the General
Corporation Act of Tennessee, or under any act amendatory thereof,
supplemental thereto, or substituted therefor.
<PAGE>
Exhibit 3.62
US OFFICE PRODUCTS, MID-SOUTH DISTRICT, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section l. The registered office shall be located in Knoxville,
Tennessee.
Section 2. The corporation may also have offices at such other places
both within and without the State of Tennessee as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section l. All meetings of shareholders for the election of directors
shall be held in Memphis, State of Tennessee, at such place as may be fixed from
time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect, by a plurality vote, a board of directors, and transact such other
business as may properly be brought before the meeting.
<PAGE>
Section 3. Written or printed notice of the annual meeting stating the
date, time, and place of the meeting, shall be delivered not less than ten days
nor more than two months before the date of the meeting, either personally or by
mail, by or at the direction of the president, the secretary, or the officer or
persons calling the meeting, to each shareholder of record entitled to vote at
such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section l. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Tennessee as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the charter, may be
called by the president, the board of directors, or upon written demand of at
least ten percent of all of the votes entitled to be cast on any issue proposed
to be considered.
Section 3. Written or printed notice of a special meeting, stating the
date, time, and place of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than ten days nor more than two
months before the date of the meeting, either personally or by mail, by or at
the direction of the president, the secretary, or the officer or persons calling
the meeting, to each shareholder of record entitled to vote at such meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
<PAGE>
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section l. A majority of the votes entitled to be cast on a matter by a
voting group constitutes a quorum of the voting group for action on that matter,
except as otherwise provided by statute or by the charter. If, however, such
quorum shall not be present or represented at any meeting of the shareholders,
the shareholders present in person or represented by proxy shall have 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 such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 2. If a quorum is present, action on a matter by a voting group
is approved if the votes cast within the voting group favoring the action exceed
the votes cast opposing the action, unless the vote of a greater number of
affirmative votes is required by law or the charter.
Section 4. Any action required or permitted to be taken at a meeting of
the shareholders may be taken without a meeting, if one or more written consents
setting forth the action so taken shall be signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section l. The number of directors shall be 3. Unless the charter
otherwise provides, directors need not be residents of the State of Tennessee
nor shareholders of the corporation. The
<PAGE>
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first meeting of shareholders
Section 2. Unless the charter provides otherwise, any vacancy occurring
in the board of directors, including a vacancy resulting from an increase in the
number of directors, may be filled by the shareholders, the board of directors,
or if the directors remaining in office constitute fewer than a quorum of the
board, the vacancy may be filled by the affirmative vote of a majority of the
directors remaining in office.
Section 3. The business affairs of the corporation shall be managed by
its 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, by the charter or by
these by-laws directed or required to be exercised or done by the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Tennessee, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for services to the corporation as directors, officers or
otherwise.
<PAGE>
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section l. Meetings of the board of directors, regular or special, may
be held either within or without the State of Tennessee.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting or it may convene at such place and time as
shall be fixed by the consent in writing of all the directors. No notice of such
meeting shall be necessary to the newly elected directors in order to legally
constitute the meeting, provided a quorum shall be present.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called on
10 days' notice to each director, either personally, by mail or by telegram;
special meetings shall be called by the chairman of the board, the president, or
by any two directors.
Section 5. Attendance or participation of a director at any meeting
shall constitute a waiver of notice of such meeting, unless the director, at the
beginning of the meeting (or promptly upon his arrival), objects to holding the
meeting or transacting business at the meeting and does not thereafter vote for
or assent to action taken at the meeting. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the board of directors
need be specified in the notice or waiver of the notice of such meeting.
<PAGE>
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business, unless a greater number is required by law or by the
charter. The act of a majority of the directors present at any meeting at which
a quorum is present shall be the act of the board of directors, unless the act
of a greater number is required by statute or by the charter. If a quorum shall
not be present at any meeting of directors, the directors present thereat may
adjourn the meeting from time to time until a quorum shall be present. Notice of
such adjournment need not be given, other than by announcement at the time of
the adjournment, provided the meeting is not adjourned for more than one month
at any one time.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if one or more written consents,
setting forth the action so taken, shall be signed by all of the directors
entitled to vote with respect to the subject matter thereof.
ARTICLE VII
COMMITTEES
Section l. The board of directors may create one or more committees that
may consist of one or more members. All members of committees exercising the
powers of the board of directors must be members of the board of directors and
serve at the board of directors' pleasure. To the extent specified by the board
of directors or charter, each committee shall have and exercise all of the
authority of the board of directors in the management of the corporation, except
as otherwise provided by law.
<PAGE>
ARTICLE VIII
NOTICES
Section l. Whenever notice is required to be given to any director or
shareholder, under the provisions of the statutes, the charter or these by-laws,
it shall be construed to mean written notice, which may be by mail, addressed to
such director or shareholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time it is deposited in the United States mail. Notice to directors
may also be given by telegram.
Section 2. Whenever notice is required to be given under the provisions
of the statutes, the charter or these by-laws, a waiver thereof, in writing,
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of such
notice.
ARTICLE IX
OFFICERS
Section l. The officers of the corporation shall be chosen by the board
of directors, and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
Section 2. The board of directors, at its first meeting after each
annual meeting of shareholders, shall choose a president, one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member of
the board.
<PAGE>
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
<PAGE>
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders, and shall record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose, and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the shareholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation, and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring
it, and when so affixed, it may be attested by his signature or by the signature
of such assistant secretary. The board of directors may give general authority
to any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section l0. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary,
<PAGE>
perform the duties and exercise the powers of the secretary, and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities, and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation, and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the board of directors.
Section l2. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section l3. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control, belonging to the corporation.
Section l4. The assistant treasurer or, if there shall be more than one,
the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer, and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
<PAGE>
ARTICLE X
CERTIFICATES FOR SHARES
Section l. The shares of the corporation shall be represented by
certificates or shall be uncertificated. Each share certificate shall be signed
by the president or a vice-president and the secretary or treasurer or an
assistant secretary or treasurer of the corporation, or by the board of
directors, and may be sealed with the seal of the corporation or a facsimile
thereof.
When the corporation is authorized to issue different classes of shares
or different series within a class, there shall be set forth upon the face or
back of the certificate, or the certificate shall have a statement that the
corporation will furnish to any shareholder upon request and without charge, a
full statement of the designations, preferences, limitations, and relative
rights applicable to each class, and the variations in the relative rights,
preferences, and limitations determined for each series and the authority of the
board of directors to fix and determine the relative rights and preferences of
subsequent series.
Section 2. The signatures of the persons signing a share certificate may
be facsimiles. In case any person who has signed, or whose facsimile signature
has been placed upon such certificate, shall have ceased to hold such office
before such certificate is issued, the certificate is nevertheless valid.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation, which
is alleged to have been lost or destroyed.
<PAGE>
When authorizing such issue of a new certificate, the board of directors, in its
discretion and as a condition precedent to the issuance thereof, may prescribe
such terms and conditions as it deems expedient, and may require such
indemnities as it deems adequate, to protect the corporation from any claim that
may be made against it with respect to any such certificate alleged to have been
lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate shall be cancelled and the transaction recorded upon the
books of the corporation.
FIXING RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of, or to vote at, any meeting of shareholders or any adjournment
thereof, or entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors may fix a record date, in advance, that may not be more than seventy
days before the meeting or action requiring a determination of shareholders.
<PAGE>
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize a person,
registered on its books as the owner of shares, as having the exclusive right to
receive dividends and to vote with respect to shares shown to be owned, as being
exclusively liable for calls and assessments upon shares shown to be owned, and
the corporation shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Tennessee.
LIST OF SHAREHOLDERS
Section 7. A list of shareholders as of the record date, certified by
the corporate officer responsible for its preparation or the transfer agent,
shall be open for inspection at any meeting of shareholders. If the right to
vote at any meeting is challenged, the person presiding thereat may rely on such
list as evidence of the right of the persons challenged to vote at such meeting.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section l. Subject to the law and any applicable provisions of the
charter, dividends may be declared by the board of directors at any regular or
special meeting, and may be paid in cash, in property or in shares of the
corporation.
<PAGE>
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends, such sum or sums as the
directors from time to time, in their absolute discretion, think proper, as a
reserve fund to meet contingencies, for equalizing dividends, for repairing or
maintaining any property of the corporation, or for such other purpose as the
directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
CHECKS
Section 3. All checks or demands for money, and notes of the
corporation, shall be signed by such officer or officers, or such other person
or persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday of April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Tennessee". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
<PAGE>
ARTICLE XII
AMENDMENTS
Section l. These by-laws may be amended or repealed, or new by-laws may
be adopted, by the affirmative vote of a majority of the board of directors at
any regular or special meeting of the board unless the charter or law reserve
this power to the shareholders.
<PAGE>
Exhibit 3.63
SUE ANNE GILROY
RESTATEMENT OF ARTICLES OF INCORPORATION SECRETARY OFSTATE
CORPORATIONS DIVISION
State Form 42152 (RS / 4-95) 302 W. Washington St, Rm. E018
Approved by State Board of Accounts 1995 Indianapolis, IN 46204
Telephone: (317) 232-6576
INSTRUCTIONS: Use 8 112" x 11 " white paper for inserts.
Present original and two (2) copies to address in upper right
Indiana Code 23-1-38-7 comer of this form.
Please TYPE or PRINT FILING FEE IS: $30.00
Upon completion of filing the Secretary of State will issue a
receipt,
RESTATEMENT OF
ARTICLES OF INCORPORATION
OF
Modern Food Systems, Inc.
(Name of Corporation)
The above corporation (here1nafter referred to as the "Corporation" ~
existing pursuant to the Indiana Business Corporation Law, desiring to give
notice of corporate action effectuating the restatement of its Articles of
Incorporation, sets forth the following:
ARTICLE I - RESTATEMENT
SECTIONI: The date of incorporation of the Corporation:
February 12, 1979
SECTION II: The name of the Corporation following this restatement:
Modern Food Systems, Inc.
SECTION III: The exact test of the Restatement of Articles of
Incorporation is attached as "Exhibit A".
ARTICLE 11 -MANNER OF ADOPTION AND VOTE (Strike inapplicable section)
SECTION 1: <#>The restatement does not contain an amendment requiring
shareholder approval and the board of directors adopted the restatement.</#>
SECTION IIII: The restatement contains an amendment requiring shareholder
approval and the vote is set forth below:
/X/ VOTE OF SHAREHOLDERS
The designation (i.e. common, preferred and any classification
where different classes of stock exists), number of outstanding
shares, number of votes entitled to vote separately on the
amendment and the number of votes of each voting group
represented at the meeting is set forth as follows:
<TABLE>
<CAPTION>
TOTAL A B C
<S> <C> <C> <C> <C>
DESIGNATION OF EACH VOTING GROUP Common
Stock
NUMBER OF OUTSTANDING SHARES 1,000 1,000
NUMBER OF VOTES ENTITLED TO BE CAST 1,000 1,000
NUMBER OF VOTES REPRESENTED AT THE MEETING 1,000 1,000
SHARES VOTED IN FAVOR 1,000 1,000
SHARES VOTED AGAINST 0
</TABLE>
/ / The number cast for the amendment by each voting group was
sufficient for approval by that voting group.
In Witness Whereof, the undersigned being the Vice President
(Title)
of said Corporation executes this Restatement of Articles of
Incorporation and verifies, subject to penalties of perjury,
that the statements contained herein are true. this 25 th day
of September,________ 1998.
Signature Printed Name
/s/ Kathleen M. Delaney Kathleen M. Delaney
(IND. 1052 6/6/97)
<PAGE>
EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MODERN FOOD SYSTEMS, INC.
Modern Food Systems, Inc. (herein after referred to as the "Corporation")
pursuant to the provisions of the Indiana Business Corporation Law ("IBCL"), as
amended, executes the following Amended and Restated Articles of Incorporation:
FIRST: The name of the corporation is: Modern Food Systems, Inc.
SECOND: The address of the registered office of the Corporation in the State of
Indiana is One North Capitol Avenue, 10th Floor, Indianapolis (County of
Marion), Indiana 46204. The name of its registered agent at such address is C T
Corporation System.
THIRD: The purposes of the Corporation are:
A. To purchase, acquire, hold, own, improve, develop, sell,
convey, assign, release, mortgage, encumber, use, lease, hire, manage,
deal in and otherwise dispose of real property and personal property of
every nature, or any interest therein, improved or otherwise; to do
every other act or acts and thing or things incidental to or connected
with the aforesaid; and
B. To engage in, promote, conduct and carry on any lawful
acts or activities for which corporations may be organized under the
IBCL.
FOURTH: The total number of shares of stock which the Corporation shall have
authority to issue is one thousand (1,000) shares of Common Stock with no par
value.
FIFTH: The number of directors of the Corporation shall be three (3). None of
the directors need be a stockholder or a resident of the State of Indiana.
SIXTH: No director shall be liable for any action taken as a director, or any
failure to take any action, unless: (i) the director has breached or failed to
perform the duties of the director's office in compliance with ss. 23-1-35-1 of
the IBCL; and (ii) the breach or failure to perform constitutes willful
misconduct ore recklessness.
If the IBCL is hereafter amended to authorize the further elimination or
limitation of the liability of a director, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest extent permitted
by the IBCL, as so amended.
Any repeal or modification of the foregoing provisions of this Article SIXTH by
the stockholders of the Corporation shall not adversely affect any right or
protection of the director of the Corporation existing at the time of such
repeal or modification.
<PAGE>
SEVENTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions herein contained, in the manner now or hereafter prescribed by
statute, and all rights, powers, privileges and discretionary authority granted
or conferred herein upon stockholders or directors are granted subject to this
reservation.
IN WITNESS WHEREOF, said Modern Food Systems, Inc. has caused this Certificate
to be signed by Kathleen M. Delaney, its Vice President, this Twenty-Fifth day
of September, 1998.
MODERN FOOD SYSTEMS, INC.
By /s/ Kathleen M. Delaney
-------------------------------
Vice President
<PAGE>
Exhibit 3.64
MODERN FOOD SYSTEMS, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The principal office shall be located in Indianapolis,
Indiana.
Section 2. The corporation may also have offices at such other places
both within and without the State of Indiana as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section l. All meetings of shareholders for the election of directors
shall be held in Indianapolis, State of Indiana, at such place as may be fixed
from time to time by the board of directors, and if no place is stated then at
the principal office.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 a.m., at which they shall
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
<PAGE>
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be given to each shareholder entitled
to vote thereat not less than ten nor more than sixty days before the date of
the meeting, either personally or by mail, by or at the direction of the
president, the secretary, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Indiana as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof. If no place is stated, special meetings
shall be held at the corporation's principal office.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president, the board of directors, or the
holders of at least 25% of all the votes entitled to be cast on any issue
proposed to be considered at the proposed special meeting.
Section 3. Written or printed notice of a special meeting of
shareholders, stating the time, place and purpose or purposes thereof, shall be
given to each shareholder entitled to vote thereat, at least ten and not more
than sixty days before the date fixed for the meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes described in the meeting notice.
<PAGE>
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of A majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders entitled to vote thereat,
present in person or represented by proxy, shall have 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 such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than one hundred and twenty days after
the date fixed for the original meeting, the directors must fix a new record
date and notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting. Once a share is represented for any
purpose at a meeting, it is deemed present for quorum purposes for the remainder
of the meeting and for any adjournment of that meeting unless a new record date
is or must be set for that adjourned meeting.
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
<PAGE>
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Section 4. Any action required to be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. The directors, other than
the first board of directors, shall be elected at the annual meeting of
shareholders, and each director elected shall hold office until his successor is
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the number of directors may be filled by the shareholders, the board
of directors, or a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify. If the
vacant office is filled by the shareholders and was held by a director elected
by a voting group of shareholders, then only the holders of shares of that
voting group are entitled to vote to fill the vacancy.
<PAGE>
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Indiana, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for services to the corporation as directors, officers or
otherwise consistent with the articles of incorporation or by-laws.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Indiana.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
<PAGE>
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Unless the articles of incorporation or these bylaws provide
otherwise, special meetings of the board of directors may be called by the
president on at least 2 days' notice of the time, date and place of meeting to
each director, either personally or by mail or by telegram; special meetings
shall be called by the president or secretary in like manner and on like notice
on the written request of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director at the beginning of
the meeting (or promptly upon his arrival) objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater number is required by law or by the
articles of incorporation. (A quorum of the board of directors may consist of no
fewer than one-third of the fixed or prescribed number of directors. The act of
a majority of the directors present at any meeting at which a quorum is present
shall be the act of the board of directors, unless the act of a greater number
is required by statute or by the articles of incorporation. If a quorum shall
not be present at any meeting of directors, the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
<PAGE>
Section 7. Unless the articles of incorporation or by-laws provide
otherwise, action required or permitted by law to be taken at a board of
directors' meeting may be taken without a meeting if the action is taken by all
members of the board. The action must be evidenced by one or more written
consents describing the action taken, signed by each director, and included in
the minutes or filed with the corporate records reflecting the action taken.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the by-laws or otherwise, may create one or
more committees and appoint members of the board to serve on them. Each
committee may have one or more members, who serve at the pleasure of the board
of directors. Such committee shall have and exercise all of the authority of the
board of directors in the management of the corporation, except as otherwise
required by law. Vacancies in the membership of committee shall be filled by the
board of directors at a regular or special meeting of the board of directors.
The executive committee shall keep regular minutes of its proceedings and report
the same to the board when required.
<PAGE>
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these by-laws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these by-laws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation may be elected or appointed
by the board of directors or by a duly elected or appointed officer if
authorized by the board of directors. A corporation must have at least one
officer. The same individual may simultaneously hold more than one office in a
corporation.
<PAGE>
Section 2. The board of directors at its first meeting after each annual
meeting of shareholders shall choose a president, and one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member of
the board. A corporation must have at least one officer.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors or by an officer authorized by the
board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed with or without cause at any time by the affirmative
vote of a majority of the board of directors. Any vacancy occurring in any
office of the corporation shall be filled by the board of directors or by an
officer authorized by the board of directors. Each officer has the authority and
shall perform the duties as set forth herein or as prescribed by the board of
directors or by direction of an officer authorized by the board of directors to
prescribe the duties of other officers.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active
<PAGE>
management of the business of the corporation and shall see that all orders and
resolutions of the board of directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the share-
<PAGE>
holders and special meetings of the board of directors, and shall perform such
other duties as may be prescribed by the board of directors or president, under
whose supervision he shall be. He shall have custody of the corporate seal of
the corporation and he, or an assistant secretary, shall have authority to affix
the same to any instrument requiring it and when so affixed, it may be attested
by his signature or by the signature of such assistant secretary.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary, or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
<PAGE>
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer, or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation may but need not be represented
by certificates signed (manually or in facsimile) by the president or a
vice-president and the secretary or an assistant secretary of the corporation,
and may be sealed with the seal of the corporation or a facsimile thereof.
If the issuing corporation is authorized to issue different classes of
shares or different series within a class, the designations, relative rights,
preferences, and limitations applicable to each class and the variations in
rights, preferences, and limitations determined for each series (and the
authority of the board of directors to determine variations for future series)
must be summarized on
<PAGE>
the front or back of each certificate. Alternatively, each certificate may state
conspicuously on its front or back that the corporation will furnish the
shareholder this information on request in writing and without charge.
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen, or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
<PAGE>
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
FIXING RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders, or any adjournment thereof,
or entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than seventy
days prior to the meeting or the particular action requiring such determination
of shareholders. If no record date is fixed for the determination of
shareholders entitled to notice of or to vote at a meeting of shareholders, or
shareholders entitled to receive payment of a dividend, the date on which notice
of the meeting is mailed or the date on which the resolution of the board of
directors declaring such dividend is adopted, as the case may be, shall be the
record date for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
<PAGE>
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Indiana.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the transfer books for
shares shall make, at least five days before each meeting of shareholders, a
complete list of the shareholders entitled to vote at such meeting, arranged in
alphabetical order, with the address of each and the number of shares held by
each, which list, for a period of five days prior to such meeting, shall be kept
on file at the principal office of the corporation and shall, after written
demand by the shareholder or the shareholder's agent or attorney authorized in
writing, be subject to inspection by any shareholder at any time during usual
business hours and at the expense of the shareholder. Such list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any shareholder or the shareholder's agent or attorney
authorized in writing during the whole time of the meeting. The original share
ledger or transfer book, or a duplicate thereof, shall be
<PAGE>
prima facie evidence as to who are the shareholders entitled to examine such
list or share ledger or transfer book or to vote at any meeting of the
shareholders.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of stock, subject to any provisions of the articles of
incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors, from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE>
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday of April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Indiana." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be altered, amended, or repealed or new
by-laws may be adopted only by the affirmative vote of a majority of the board
of directors at any regular or special meeting of the board, unless otherwise
provided by the articles of incorporations or by law.
<PAGE>
Section 2. A by-law that fixes a greater quorum requirement for the
board of directors may be amended or repealed only by the shareholders if the
provision was originally adopted by the shareholders or only by the board of
directors if the provision was originally adopted by the board of directors.
<PAGE>
Exhibit 3.65
SUE ANNE GILROY
RESTATEMENT OF ARTICLES OF INCORPORATION SECRETARY OFSTATE
CORPORATIONS DIVISION
State Form 42152 IRS / 4-95) 302 W. Washington St, Rm. E018
Approved by State Board of Accounts 1995 Indianapolis, IN 46204
Telephone: (317) 232-6576
INSTRUCTIONS: Use 8 112" x 11" white paper for inserts.
Present original and two (2) copies to address in upper
right Indiana Code 23-1-38-7
corner of this form.
Please TYPE or PRINT FILING FEE IS: $30.00
Upon completion of filing the Secretary of State will
issue a receipt.
RESTATEMENT OF
ARTICLES OF INCORPORATION
OF
Modern Vending, Inc.
(Name of Corporation)
The above corporation (hereinafter referred to as the "Corporation")
existing pursuant to the Indiana Business Corporation Law, desiring to give
notice of corporate action effectuating the restatement of its Articles of
Incorporation, sets forth the following:
ARTICLE I-RESTATEMENT
SECTIONI: The date of incorporation of the Corporation:
November 1, 1972
SECTIONII: The name of the Corporation following this restatement:
Modern Vending, Inc.
SECTION III: The exact test of the Restatement of Articles of Incorporation is
attached as "Exhibit A".
ARTICLE 11 - MANNER OF ADOPTION AND VOTE (Strike inapplicable section)
SECTION 1:<#> The restatement does not contain an amendment requiring </#>
<#> shareholder approval and the board of directors adopted the restatement.</#>
SECTION III: The restatement contains an amendment requiring shareholder
approval and the vote is set forth below:
/X/ VOTE OF SHAREHOLDERS
The designation (i.e. common, preferred and any classification
where different classes of stock exists), number of outstanding
shares, number of votes entitled to vote separately on the
amendment and the number of votes of each voting group
represented at the meeting is set forth as follows:
<TABLE>
<CAPTION>
TOTAL A B C
<S> <C> <C> <C> <C>
DESIGNATION OF EACH VOTING GROUP Common
Stock
NUMBER OF OUTSTANDING SHARES 1,000 1,000
NUMBER OF VOTES ENTITLED TO BE CAST 1,000 1,000
NUMBER OF VOTES REPRESENTED AT THE MEETING 1,000 1,000
SHARES VOTED IN FAVOR 1,000 1,000
SHARES VOTED AGAINST 0
</TABLE>
/ / The number cast for the amendment by each voting group was sufficient
for approval by that voting group.
In Witness Whereof, the undersigned being the Vice President
(Title)
of said Corporation executes this Restatement of Articles of
Incorporation and verifies, subject to penalties of perjury,
that the statements contained herein are true, this 25th day of
September, 1998.
Signature Printed Name
/s/ Kathleen M. Delaney Kathleen M. Delaney
------------------------
<PAGE>
EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MODERN VENDING, INC.
Modern Vending, Inc. (herein after referred to as the "Corporation")
pursuant to the provisions of the Indiana Business Corporation Law ("IBCL"), as
amended, executes the following Amended and Restated Articles of Incorporation:
FIRST: The name of the corporation is: Modern Vending, Inc.
SECOND: The address of the registered office of the Corporation in the State of
Indiana is One North Capitol Avenue, 10th Floor, Indianapolis (County of
Marion), Indiana 46204. The name of its registered agent at such address is C T
Corporation System.
THIRD: The purposes of the Corporation are:
A. To purchase, acquire, hold, own, improve, develop, sell,
convey, assign, release, mortgage, encumber, use, lease, hire, manage,
deal in and otherwise dispose of real property and personal property of
every nature, or any interest therein, improved or otherwise; to do
every other act or acts and thing or things incidental to or connected
with the aforesaid; and
B. To engage in, promote, conduct and carry on any lawful
acts or activities for which corporations may be organized under the
IBCL.
FOURTH: The total number of shares of stock which the Corporation shall have
authority to issue is one thousand (1,000) shares of Common Stock with no par
value.
FIFTH: The number of directors of the Corporation shall be three (3). None of
the directors need be a stockholder or a resident of the State of Indiana.
SIXTH: No director shall be liable for any action taken as a director, or any
failure to take any action, unless: (i) the director has breached or failed
to perform the duties of the director's office in compliance with Section
23-1-35-1 of the IBCL; and (ii) the breach or failure to perform constitutes
willful misconduct ore recklessness.
If the IBCL is hereafter amended to authorize the further elimination or
limitation of the liability of a director, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest extent permitted
by the IBCL, as so amended.
Any repeal or modification of the foregoing provisions of this Article SIXTH by
the stockholders of the Corporation shall not adversely affect any right or
protection of the director of the Corporation existing at the time of such
repeal or modification.
<PAGE>
SEVENTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions herein contained, in the manner now or hereafter prescribed by
statute, and all rights, powers, privileges and discretionary authority granted
or conferred herein upon stockholders or directors are granted subject to this
reservation.
IN WITNESS WHEREOF, said Modern Vending, Inc. has caused this Certificate to be
signed by Kathleen M. Delaney, its Vice President, this Twenty-Fifth day of
September, 1998.
MODERN VENDING, INC.
By: /s/ Kathleen M. Delaney
----------------------------------
Vice President
<PAGE>
Exhibit 3.66
MODERN VENDING, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The principal office shall be located in Indianapolis,
Indiana.
Section 2. The corporation may also have offices at such other places
both within and without the State of Indiana as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in Indianapolis, State of Indiana, at such place as may be fixed
from time to time by the board of directors, and if no place is stated then at
the principal office.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 a.m., at which they shall
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
<PAGE>
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be given to each shareholder entitled
to vote thereat not less than ten nor more than sixty days before the date of
the meeting, either personally or by mail, by or at the direction of the
president, the secretary, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Indiana as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof. If no place is stated, special meetings
shall be held at the corporation's principal office.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president, the board of directors, or the
holders of at least 25% of all the votes entitled to be cast on any issue
proposed to be considered at the proposed special meeting.
Section 3. Written or printed notice of a special meeting of
shareholders, stating the time, place and purpose or purposes thereof, shall be
given to each shareholder entitled to vote thereat, at least ten and not more
than sixty days before the date fixed for the meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes described in the meeting notice.
<PAGE>
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of A majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders entitled to vote thereat,
present in person or represented by proxy, shall have 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 such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than one hundred and twenty days after
the date fixed for the original meeting, the directors must fix a new record
date and notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting. Once a share is represented for any
purpose at a meeting, it is deemed present for quorum purposes for the remainder
of the meeting and for any adjournment of that meeting unless a new record date
is or must be set for that adjourned meeting.
Section 2. If a quorum is present, the affirmative vote of a majority
of the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
<PAGE>
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Section 4. Any action required to be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. The directors, other
than the first board of directors, shall be elected at the annual meeting of
shareholders, and each director elected shall hold office until his successor is
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the number of directors may be filled by the shareholders, the board
of directors, or a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify. If the
vacant office is filled by the shareholders and was held by a director elected
by a voting group of shareholders, then only the holders of shares of that
voting group are entitled to vote to fill the vacancy.
<PAGE>
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Indiana, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise consistent with the articles of incorporation or by-laws.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Indiana.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
<PAGE>
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Unless the articles of incorporation or these bylaws provide
otherwise, special meetings of the board of directors may be called by the
president on at least 2 days' notice of the time, date and place of meeting to
each director, either personally or by mail or by telegram; special meetings
shall be called by the president or secretary in like manner and on like notice
on the written request of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director at the beginning of
the meeting (or promptly upon his arrival) objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
Section 6. A majority of the directors shall constitute a quorum for
the transaction of business unless a greater number is required by law or by the
articles of incorporation. (A quorum of the board of directors may consist of no
fewer than one-third of the fixed or prescribed number of directors. The act of
a majority of the directors present at any meeting at which a quorum is present
shall be the act of the board of directors, unless the act of a greater number
is required by statute or by the articles of incorporation. If a quorum shall
not be present at any meeting of directors, the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
<PAGE>
Section 7. Unless the articles of incorporation or by-laws provide
otherwise, action required or permitted by law to be taken at a board of
directors' meeting may be taken without a meeting if the action is taken by all
members of the board. The action must be evidenced by one or more written
consents describing the action taken, signed by each director, and included in
the minutes or filed with the corporate records reflecting the action taken.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the by-laws or otherwise, may create one or
more committees and appoint members of the board to serve on them. Each
committee may have one or more members, who serve at the pleasure of the board
of directors. Such committee shall have and exercise all of the authority of the
board of directors in the management of the corporation, except as otherwise
required by law. Vacancies in the membership of committee shall be filled by the
board of directors at a regular or special meeting of the board of directors.
The executive committee shall keep regular minutes of its proceedings and report
the same to the board when required.
<PAGE>
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these by-laws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these by-laws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation may be elected or appointed
by the board of directors or by a duly elected or appointed officer if
authorized by the board of directors. A corporation must have at least one
officer. The same individual may simultaneously hold more than one office in a
corporation.
<PAGE>
Section 2. The board of directors at its first meeting after each
annual meeting of shareholders shall choose a president, and one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member of
the board. A corporation must have at least one officer.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors or by an officer authorized by the
board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed with or without cause at any time by the
affirmative vote of a majority of the board of directors. Any vacancy occurring
in any office of the corporation shall be filled by the board of directors or by
an officer authorized by the board of directors. Each officer has the authority
and shall perform the duties as set forth herein or as prescribed by the board
of directors or by direction of an officer authorized by the board of directors
to prescribe the duties of other officers.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active
<PAGE>
management of the business of the corporation and shall see that all orders and
resolutions of the board of directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the share-
<PAGE>
holders and special meetings of the board of directors, and shall perform such
other duties as may be prescribed by the board of directors or president, under
whose supervision he shall be. He shall have custody of the corporate seal of
the corporation and he, or an assistant secretary, shall have authority to affix
the same to any instrument requiring it and when so affixed, it may be attested
by his signature or by the signature of such assistant secretary.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary, or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
<PAGE>
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer, or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation may but need not be
represented by certificates signed (manually or in facsimile) by the president
or a vice-president and the secretary or an assistant secretary of the
corporation, and may be sealed with the seal of the corporation or a facsimile
thereof.
If the issuing corporation is authorized to issue different classes of
shares or different series within a class, the designations, relative rights,
preferences, and limitations applicable to each class and the variations in
rights, preferences, and limitations determined for each series (and the
authority of the board of directors to determine variations for future series)
must be summarized on
<PAGE>
the front or back of each certificate. Alternatively, each certificate may state
conspicuously on its front or back that the corporation will furnish the
shareholder this information on request in writing and without charge.
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen, or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
<PAGE>
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
FIXING RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders, or any adjournment thereof,
or entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than seventy
days prior to the meeting or the particular action requiring such determination
of shareholders. If no record date is fixed for the determination of
shareholders entitled to notice of or to vote at a meeting of shareholders, or
shareholders entitled to receive payment of a dividend, the date on which notice
of the meeting is mailed or the date on which the resolution of the board of
directors declaring such dividend is adopted, as the case may be, shall be the
record date for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
<PAGE>
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Indiana.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the transfer books for
shares shall make, at least five days before each meeting of shareholders, a
complete list of the shareholders entitled to vote at such meeting, arranged in
alphabetical order, with the address of each and the number of shares held by
each, which list, for a period of five days prior to such meeting, shall be kept
on file at the principal office of the corporation and shall, after written
demand by the shareholder or the shareholder's agent or attorney authorized in
writing, be subject to inspection by any shareholder at any time during usual
business hours and at the expense of the shareholder. Such list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any shareholder or the shareholder's agent or attorney
authorized in writing during the whole time of the meeting. The original share
ledger or transfer book, or a duplicate thereof, shall be
<PAGE>
prima facie evidence as to who are the shareholders entitled to examine such
list or share ledger or transfer book or to vote at any meeting of the
shareholders.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of stock, subject to any provisions of the articles of
incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors, from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE>
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday of April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Indiana." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be altered, amended, or repealed or new
by-laws may be adopted only by the affirmative vote of a majority of the board
of directors at any regular or special meeting of the board, unless otherwise
provided by the articles of incorporations or by law.
<PAGE>
Section 2. A by-law that fixes a greater quorum requirement for the
board of directors may be amended or repealed only by the shareholders if the
provision was originally adopted by the shareholders or only by the board of
directors if the provision was originally adopted by the board of directors.
<PAGE>
Exhibit 3.67
F0012 - Page 1 of 3 OFFICE OF THE MISSISSIPPI SECRETARY OF STATE
P.O. BOX 136, JACKSON, NIS 39205-0136 (601) 359-1333
Articles of Amendment
The undersigned persons, pursuant to Section 79-4-10.06 (if a profit
corporation) or Section 7911-305 (if a nonprofit corporation) of the Mississippi
Code of 1972, hereby execute the following document and set forth:
1. Type of Corporation
/x/ Profit / / Nonprofit
2. Name of Corporation
Morris Office Machines, Inc.
3. The future effective date is
(Complete if applicable) 10/1/1998
4. Set forth the text of each amendment adopted. See Addendum - (Item 4.)
5. If an amendment for a business corporation provides for an exchange,
reclassification, or cancellation of issued shares, set forth the provisions for
implementing the amendment if they are not contained in the amendment itself.
(Attach page) See Addendum - (Item 5.)
6. The amendment(s) was (were) adopted on
September 25, 1998 Date(c)
FOR PROFIT CORPORATION (Check the appropriate box)
Adopted by / / the incorporators
/ / directors without shareholder action and
shareholder action was not required.
FOR NONPROFIT CORPORATION (Check the appropriate box)
Adopted by / / the incorporators
/ / board of directors without member action and
member action was not required.
FOR PROFIT CORPORATION
7. If the amendment was approved by shareholders (a) The designation, number of
outstanding shares, number of votes entitled to be cast by each voting group
entitled to vote separately on the amendment, and the number of votes of each
voting group indisputably represented at the meeting were
<TABLE>
<CAPTION>
Designation No. of outstanding No. of votes entitled No. of votes
shares to be cast indisputably represented
<S> <C> <C> <C>
Common 1,000 1,000
</TABLE>
<PAGE>
F0012 - Page 2 of 3 OFFICE OF THE MISSISSIPPI SECRETARY OF STATE
P.O. BOX 136, JACKSON, SIS 39205-0136 (601) 359-1333
Articles of Amendment
(b) EITHER
(i) the total number of votes cast for and against the amendment by
each voting group entitled to vote separately on the amendment was
<TABLE>
<CAPTION>
Voting group Total no. of votes Total no. of votes cast
cast FOR AGAINS
<S> <C> <C>
Common 1,000 0
</TABLE>
OR
(ii) the total number of undisputed votes cast for the amendment by
each voting group was
Voting group Total no. of undisputed votes cast FOR the plan
and the number of votes cast for the amendment by each voting group was
sufficient for approval by that voting group.
FOR NONPROFIT CORPORATION
<PAGE>
F0012 - Page 3 of 3 OFFICE OF THE MISSISSIPPI SECRETARY OF STATE
P.O. BOX 136, JACKSON, MS 39205-0136 (601) 359-1333
Articles of Amendment
(b) EITHER
(i) the total number of votes cast for and against the amendment by each
class entitled to vote separately on the amendment was
Voting class Total no. of votes Total no. of votes cast
cast FOR AGAINST
OR
and the number of votes cast for the amendment by each voting group was
sufficient for approval by that voting proud.
By: Signature (Please keep writing within blocks)
/s/ Mark D. Director
---------------------
Printed Name Mark D. Director Title Vice President
<PAGE>
Addendum
(Item 4.) The text of each amendment adopted:
The Articles of Incorporation are amended and restated in their
entirety. See Exhibit A attached hereto and made a part hereof
(Item 5.)The provisions for implementing the amendment if they are not contained
in the
Upon the effectiveness of this amendment, the 1,000 shares of Common
Stock, par value $.01 per share of the corporation (the "Old Stock"),
that are issued and outstanding shall be converted into 1,000 issued
shares of Common Stock, no par value per share, of the corporation (the
"New Stock"), on the basis of one share of New Stock for each share of
Old Stock. Upon the effectiveness of this amendment, holders of issued
shares of the Old Stock, upon surrendering certificates evidencing the
issued shares of Old Stock for cancellation, shall be entitled to
receive certificates for shares of the New Stock on the basis set forth
above.
1 OF 1
<PAGE>
EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MORRIS OFFICE MACHINES, INC.
Type of Corporation: Profit
Name of the Corporation: US Office Products, Mid-South District, Inc.
The number of shares the corporation is authorized to issue: 1,000 shares of
common stock, without par value.
Name and Street Address of the Registered Agent and Registered Office:
CT Corporation System
631 Lakeland East Drive
Flowood, MS 39208
The purpose of the corporation is to exercise all rights and powers that may be
conferred under Mississippi Law.
The duration of the corporation is perpetual.
<PAGE>
US OFFICE PRODUCTS, MID-SOUTH DISTRICT, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in Jackson,
Mississippi.
Section 2. The corporation may also have offices at such other places
both within and without the State of Mississippi as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in Greenwood, State of Mississippi, at such place as may be fixed
from time to time by the board of directors, and if no place is stated then at
the principal office.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
<PAGE>
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be given to each shareholder of record
entitled to vote thereat not less than ten nor more than sixty days before the
date of the meeting, either personally or by mail, by or at the direction of the
president, the secretary, or the officer or persons calling the meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Mississippi as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof. If no place is stated, special meetings
shall be held at the corporation's principal office.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president, the board of directors, or the
holders of at least 10% of all the votes entitled to be cast on any issue
proposed to be considered at the proposed special meeting.
Section 3. Written or printed notice of a special meeting of
shareholders, stating the time, place and purpose or purposes thereof, shall be
given to each shareholder entitled to vote thereat, at least ten and not more
than sixty days before the date fixed for the meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes described in the meeting notice.
<PAGE>
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. A majority of the votes entitled to be cast on a matter by
the voting group constitutes a quorum of the voting group for action on that
matter except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders entitled to vote thereat,
present in person or represented by proxy, shall have 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 such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than one hundred and twenty days after
the date fixed for the original meeting, the directors must fix a new record
date and notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting. Once a share is represented for any
purpose at a meeting, it is deemed present for quorum purposes for the remainder
of the meeting and for any adjournment of that meeting unless a new record date
is or must be set for that adjourned meeting.
Section 2. If a quorum is present, action on a matter by a voting group
is approved if the votes cast within the voting group favoring the action exceed
the votes cast opposing the action unless the vote of a greater number of
affirmative votes is required by law or the articles of incorporation.
<PAGE>
Section 3. Each outstanding share, regardless of class, shall be
entitled to one vote on each matter submitted to a vote at a meeting of
shareholders unless the articles of incorporation or law provides otherwise. A
shareholder may vote either in person or by proxy executed in writing by the
shareholder or by his duly authorized attorney-in-fact. Section 4. Any action
required to be taken at a meeting of the shareholders may be taken without a
meeting if one or more consents in writing, setting forth the action so taken,
shall be signed by all of the shareholders entitled to vote with respect to the
subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. The directors, other than
the first board of directors, shall be elected at the annual meeting of
shareholders, and each director elected shall hold office until his successor is
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the number of directors may be filled only by the shareholders.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
<PAGE>
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Mississippi, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for services to the corporation as directors, officers or
otherwise consistent with the articles of incorporation or by-laws.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Mississippi.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
<PAGE>
Section 4. Unless the articles of incorporation or these by-laws provide
otherwise, special meetings of the board of directors may be called by the
president on at least 2 days' notice of the time, date and place of meeting to
each director, either personally or by mail or by telegram.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director at the beginning of
the meeting (or promptly upon his arrival) objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater number is required by law or by the
articles of incorporation. (A quorum of the board of directors may consist of no
fewer than one-third of the fixed or prescribed number of directors. The act of
a majority of the directors present at any meeting at which a quorum is present
shall be the act of the board of directors, unless the act of a greater number
is required by statute or by the articles of incorporation. If a quorum shall
not be present at any meeting of directors, the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 7. Unless the articles of incorporation or by-laws provide
otherwise, action required or permitted by law to be taken at a board of
directors' meeting may be taken without a meeting if the action is taken by all
members of the board. The action must be evidenced by one or more written
consents describing the action taken, signed by each
<PAGE>
director, and included in the minutes or filed with the corporate records
reflecting the action taken.
ARTICLE VII
COMMITTEES
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the by-laws or otherwise, may create one or
more committees and appoint members of the board to serve on them. Each
committee must have two or more members, who serve at the pleasure of the board
of directors. Such committee shall have and exercise all of the authority of the
board of directors in the management of the corporation, except as otherwise
required by law.
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these by-laws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
<PAGE>
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these by-laws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation may be elected or appointed
by the board of directors or by a duly elected or appointed officer if
authorized by the board of directors. A corporation must have at least one
officer. The same individual may simultaneously hold more than one office in a
corporation.
Section 2. The board of directors at its first meeting after each annual
meeting of shareholders shall choose a president and one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member of
the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors or by an officer authorized by the
board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
<PAGE>
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed with or without cause at any time by the affirmative
vote of a majority of the board of directors. Any vacancy occurring in any
office of the corporation shall be filled by the board of directors or by an
officer authorized by the board of directors. Each officer has the authority and
shall perform the duties as set forth herein or as prescribed by the board of
directors or by direction of an officer authorized by the board of directors to
prescribe the duties of other officers.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
<PAGE>
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary.
<PAGE>
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary, or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books,
<PAGE>
papers, vouchers, money and other property of whatever kind in his possession or
under his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer, or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates signed (manually or in facsimile) by the president or a
vice-president and the secretary or an assistant secretary of the corporation,
and may be sealed with the seal of the corporation or a facsimile thereof.
If the issuing corporation is authorized to issue different lasses of
shares or different series within a class, the designations, relative rights,
preferences and limitations applicable to each class and the variations in
rights, preferences, and limitations determined for each series (and the
authority of the board of directors to determine variations for future series)
must be summarized on the front or back of each certificate. Alternatively, each
certificate may state conspicuously on its front or back that the corporation
will furnish the shareholder this information on request in writing and without
charge.
<PAGE>
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
<PAGE>
FIXING RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders, or any adjournment thereof,
or entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than seventy
days prior to the meeting or the particular action requiring such determination
of shareholders.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable to calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Mississippi.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the transfer books for
shares shall make a complete list of the shareholders entitled to vote at a
shareholders' meeting, arranged
<PAGE>
by voting group in alphabetical order, with the address of each and the number
of shares held by each, which list, beginning two business days after notice of
the meeting is given for which the list was prepared and continuing through the
meeting, shall be kept on file at the principal office of the corporation and
shall, after written demand by the shareholder or the shareholder's agent or
attorney authorized in writing, be subject to inspection by any shareholder at
any time during usual business hours and at the expense of the shareholder. Such
list shall also be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any shareholder or the shareholder's
agent or attorney authorized in writing during the whole time of the meeting.
The original share ledger or transfer book, or a duplicate thereof, shall be
prima facie evidence as to who are the shareholders entitled to examine such
list or share ledger or transfer book or to vote at any meeting of the
shareholders.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of stock, subject to any provisions of the articles of
incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors, from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or
<PAGE>
the equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the directors shall think conducive to
the interest of the corporation, and the directors may modify or abolish any
such reserve in the manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Mississippi." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
<PAGE>
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be altered, amended, or repealed or new
by-laws may be adopted only by the affirmative vote of a majority of the board
of directors at any regular or special meeting of the board, unless otherwise
provided by the articles of incorporation or by law.
<PAGE>
Exhibit 3.69
Prescribed by Charter No.
Bob Taft, Secretary of State
30 East Broad Street, 14th Floor Approved
Columbus, Ohio 43266-0418 Date
Form C-108 (January 1991)
Fee
---
CERTIFICATE OF AMENDED ARTICLES OF INCORPORATION
Of
NATIONAL OFFICE SUPPLY, INC.
----------------------------
(Name of Corporation)
Kathleen M. Delaney, who is:
Chairman of the Board President x Vice President (check one)
-----
and
Mark D. Director, who is:
Secretary x Assistant Secretary (check one)
-----
of the above named Ohio corporation for profit do hereby certify that:
a meeting of the shareholders was duly called and held on the the day of
, 19 at which meeting a quorum of the shareholders
was present in person or by proxy, and that by the affirmative vote of the
holders of shares entitling them to exercise % of the voting power if the
corporation,
in a writing signed by all the shareholders who would be entitled to a notice of
a meeting held for that purpose,
the following Amended Articles of Incorporation were adopted to supersede and
take the place of the existing Articles and all amendments thereto.
AMENDED ARTICLES OF INCORPORATION FIRST:
FIRST: The name of the corporation is: US OFFICE PRODUCTS, PENN-OHIO DISTRICT,
INC.
SECOND: The place in the State of Ohio where its principal office is located is
in the City of
Cleveland Cuyahoga County.
THIRD: The purposes of the corporation are as follows:
To engage in any lawful act or activity for which corporations may be formed
under Sections 1701.01 to 1701.98, inclusive, of the Ohio Revised Code.
<PAGE>
FOURTH: The number of shares which the corporation is authorized to have
outstanding is: 1000 shares of Common Stock, with no par value
FIFTH: These Amended Articles of Incorporation take the place of and supersede
the existing Articles of Incorporation as heretofore amended.
IN WITNESS WHEREOF, the above named officers, acting for and on behalf of
the corporation, have hereunto subscribed their names this 25th day of
September, 1998
BY: /s/ Kathleen M. Delaney
-------------------------------------
Kathleen M. Delaney
(President or Vice President)
--------------
BY: /s/ Mark D. Director
-------------------------------------
Mark D. Director
(Secretary or Assistant Secretary)
-------------------
NOTE--Ohio law does not permit one officer or sign in two capacities. Two
separate signatures are required, even if this necessitates the election
of a second officer before the filing can be made.
<PAGE>
Exhibit 3.70
* * * * *
AMENDED AND RESTATED
REGULATIONS
of
US OFFICE PRODUCTS, PENN-OHIO DISTRICT, INC.
* * * * *
ARTICLE I
OFFICES
Section 1. The principal office shall be in the City of Akron, County
of Cuyahoga, State of Ohio.
Section 2. The corporation may also have offices at such other places
as the board of directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
SHAREHOLDERS' MEETINGS
Section 1. Meetings of the shareholders shall be in the City of Akron,
County of Cuyahoga, State of Ohio.
Section 2. An annual meeting of the shareholders, commencing with the
year 1999, shall be held in the last week of June in each year at 10:00 a.m.,
when they shall
<PAGE>
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
Section 3. Written notice stating the time, place and purpose of a
meeting of the shareholders shall be given either by personal delivery or by
mail not less than 10 nor more than 20 days before the date of the meeting to
each shareholder of record entitled to notice of the meeting by or at the
direction of the president or a vice president or the secretary or an assistant
secretary. If mailed, such notice shall be addressed to the shareholder at his
address as it appears on the records of the corporation. Notice of adjournment
of a meeting need not be given if the time and place to which it is adjourned
are fixed and announced at such meeting.
Section 4. Meetings of the shareholders may be called by the president
or a vice president, or the directors by action at a meeting, or a majority of
the directors acting without a meeting or by the secretary of the corporation
upon the order of the board of directors, or by the persons who hold twenty-five
per cent of all the shares outstanding and entitled to vote thereat. Upon the
request in writing delivered either in person or by registered mail to the
president or secretary by any persons entitled to call a meeting of the
shareholders, such officer shall forthwith cause notice to be given to the
shareholders entitled thereto. If such request be refused, then the persons
making such request may call a meeting by giving notice in the manner provided
in these regulations.
Section 5. Business transacted at any special meeting of shareholders
shall be confined to the purposes stated in the notice.
<PAGE>
Section 6. Upon request of any shareholders at any meeting of
shareholders, there shall be produced at such meeting an alphabetically arranged
list, or classified lists, of the shareholders of record as of the record date
of such meeting, who are entitled to vote, showing their respective addresses
and the number and class of shares held by each. Such list or lists when
certified by the officer or agent in charge of the transfers of shares shall be
prima-facie evidence of the facts shown therein.
Section 7. The holders of all of the shares issued and outstanding
having voting power, present in person or represented by proxy, shall be
requisite and shall constitute a quorum at all meetings of shareholders for the
transaction of business, except that at any meeting of shareholders called to
take any action which is authorized or regulated by statute, in order to
constitute a quorum, there shall be present in person or represented by proxy
the holders of record of shares entitling them to exercise the voting power
required by statute, the articles of incorporation, or these regulations, to
authorize or take the action proposed or stated in the notice of the meeting.
If, however, such quorum shall not be present or represented at any meeting of
the shareholders, the shareholders entitled to vote thereat, present in person
or represented by proxy, shall have 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 such adjourned meeting at which a quorum
shall be present or represented any business may be transacted which might have
been transacted at the meeting as originally notified.
Section 8. When a quorum is present or represented at any meeting, the
vote of the holders of a majority of the stock having voting power, present in
person or
<PAGE>
represented by proxy, shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of the statutes or
of the articles of incorporation or of these regulations, a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 9. At every meeting of shareholders, each outstanding share
having voting power shall entitle the holder thereof to one vote on each matter
properly submitted to the shareholders, subject to the provisions with respect
to cumulative voting set forth in this section. If notice in writing is given by
any shareholder to the president, a vice president or the secretary, not less
than forty-eight hours before the time fixed for holding a meeting of the
shareholders for the purpose of electing directors if notice of such meeting
shall have been given at least ten days prior thereto, and otherwise not less
than twenty-four hours before such time, that he desires that the voting at such
election shall be cumulative, and if an announcement of the giving of such
notice is made upon the convening of the meeting by the chairman or secretary or
by or on behalf of the shareholder giving such notice, each shareholder shall
have the right to cumulate such voting power as he possesses and to give one
candidate as many votes as the number of directors to be elected multiplied by
the number of his votes equals, or to distribute his votes on the same principle
among two or more candidates, as he sees fit. A shareholder shall be entitled to
vote even though his shares have not been fully paid, but shares upon which an
installment of the purchase price is overdue and unpaid shall not be voted.
Section 10. A person who is entitled to attend a shareholders'
meeting, to vote thereat, or to execute consents, waivers, or releases, may be
represented at such meeting
<PAGE>
or vote thereat, and execute consents, waivers, and releases, and exercise any
of his other rights, by proxy or proxies appointed by a writing signed by such
person. A telegram or cablegram appearing to have been transmitted by such
person, or a photographic, photostatic, or equivalent reproduction of a writing,
appointing a proxy is sufficient writing. No appointment of a proxy shall be
valid after the expiration of eleven months after it is made unless the writing
specifies the date on which it is to expire or the length of time it is to
continue in force.
Section 11. Unless the articles or these regulations prohibit the
authorization or taking of any action of the shareholders without a meeting, any
action which may be authorized or taken at a meeting of the shareholders may be
authorized or taken without a meeting with the affirmative vote or approval of,
and in a writing or writings signed by all the shareholders who would be
entitled to notice of a meeting of the shareholders held for such purpose, which
writing or writings shall be filed with or entered upon the records of the
corporation.
ARTICLE III
DIRECTORS
Section 1. The number of directors, which shall not be less than
three, may be fixed or changed at a meeting of shareholders called for the
purpose of electing directors. The first board shall consist of three directors.
Except where the law, the articles of incorporation, or these regulations
require any action to be authorized or taken by shareholders, all of the
authority of the corporation shall be exercised by the directors.
<PAGE>
The directors shall be elected at the annual meeting of shareholders, except as
provided in Section 2 of this article, and each director shall hold office until
the next annual meeting of the shareholders and until his successor is elected
and qualified, or until his earlier resignation, removal from office, or death.
When the annual meeting is not held or directors are not elected thereat, they
may be elected at a special meeting called for that purpose. Directors need not
be shareholders.
Section 2. If the office of any director or directors becomes vacant
by reason of death, resignation, retirement, disqualification, removal from
office, or otherwise, the remaining directors, though less than a quorum, shall
by a vote of a majority of their number, choose a successor or successors, who
shall hold office for the unexpired term in respect to which such vacancy
occurred.
Section 3. For their own government the directors may adopt by-laws
not inconsistent with the articles of incorporation or these regulations.
Section 4. The directors may hold their meeting, and keep the books of
the corporation, outside the State of Ohio, at such places as they may from time
to time determine but, if no transfer agent is appointed to act for the
corporation in Ohio, it shall keep an office in Ohio at which shares shall be
transferable and at which it shall keep books in which shall be recorded the
names and addresses of all shareholders and all transfers of shares.
<PAGE>
COMMITTEES
Section 5. The directors may at any time elect three or more of their
number as an executive committee or other committees, which shall, in the
interval between meetings of the board of directors, exercise such powers and
perform such duties as may from time to time be prescribed by the board of
directors. Any such committee shall be subject at all times to the control and
direction of the board of directors. Unless otherwise ordered by the board of
directors, any such committee may act by a majority of its members at a meeting
or by a writing or writings signed by all its members. An act or authorization
of an act by any such committee within the authority delegated to it shall be as
effective for all purposes as the act or authorization of the board of
directors.
Section 6. The committee shall keep regular minutes of their
proceedings and report the same to the board when required.
COMPENSATION OF DIRECTORS
Section 7. Directors, as such, shall not receive any stated salary for
their services but, by resolution of the board, a fixed sum, and expenses of
attendance if any, may be allowed for attendance at each regular or special
meeting of the board; provided that nothing herein contained shall be construed
to preclude any director from serving the corporation in any other capacity and
receiving compensation therefor.
Section 8. Members of the executive committee or other committees may
be allowed like compensation for attending committee meetings.
<PAGE>
MEETINGS OF THE BOARD
Section 9. The first meeting of each newly elected board shall be held
at such time and place, either within or without the State of Ohio, as shall be
fixed by the vote of the shareholders at the annual meeting, of which two days'
notice shall be delivered personally or sent by mail or telegram to each newly
elected director. Such meeting may be held at any place or time as may be fixed
by the consent in writing of all the directors, given either before or after the
meeting.
Section 10. Regular meetings of the board may be held at such time and
place, either within or without the State of Ohio, as shall be determined by the
board.
Section 11. Special meetings of the board may be called by the
president, any vice president, or by two directors on two days' notice to each
director, either delivered personally or sent by mail, telegram or cablegram.
The notice need not specify the purposes of the meeting.
Section 12. At all meetings of the board a majority directors shall be
necessary and sufficient to constitute a quorum for the transaction of business,
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the board of directors, except as may be
otherwise specifically provided by statute or by the articles of incorporation
or by these regulations. If a quorum shall not be present at any meeting of
directors, the directors present thereat may adjourn the meeting from time to
time, until a quorum shall be present. Notice of adjournment of a meeting need
not be given to absent directors if the time and place are fixed at the meeting
adjourned.
<PAGE>
Section 13. Unless the articles or these regulations prohibit the
authorization or taking of any action of the directors without a meeting, any
action which may be authorized or taken at a meeting of the directors may be
authorized or taken without a meeting with the affirmative vote or approval of,
and in a writing or writings signed by all the directors, which writing or
writings shall be filed with or entered upon the records of the corporation.
REMOVAL OF DIRECTORS
Section 14. All the directors, or all the directors of a particular
class, if any, or any individual director may be removed from office, without
assigning any cause, by the vote of the holders of a majority of the voting
power entitling them to elect directors in place of those to be removed,
provided that unless all the directors, or all the directors of a particular
class, if any, are removed, no individual director shall be removed in case the
votes of a sufficient number of shares are cast against his removal which, if
cumulatively voted at an election of all the directors, or all the directors of
a particular class, if any, as the case may be, would be sufficient to elect at
least one director. In case of any such removal, a new director may be elected
at the same meeting for the unexpired term of each director removed. Failure to
elect a director to fill the unexpired term of any director removed shall be
deemed to create a vacancy in the board.
<PAGE>
ARTICLE IV
NOTICES
Section 1. Notices to directors and shareholders shall be in writing
and delivered personally or mailed to the directors or shareholders at their
addresses appearing on the books of the corporation. Notice by mail shall be
deemed to be given at the time when the same shall be mailed. Notice to
directors and shareholders may also be given by telegram or telephone.
Section 2. Notice of the time, place and purposes of any meeting of
shareholders or directors as the case may be, whether required by law, the
articles of incorporation or these regulations, may be waived in writing, either
before or after the holding of such meeting, by any shareholder, or by any
director, which writing shall be filed with or entered upon the records of the
meeting.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
directors and shall be a president, a vice president, a secretary and a
treasurer. The board of directors may also choose additional vice presidents,
and one or more assistant secretaries and assistant treasurers. Any two or more
of such offices except the offices of president and vice president, may be held
by the same person, but no officer shall execute, acknowledge or verify any
instrument in more than one capacity if such instrument is required by law
<PAGE>
or by these regulations to be executed, acknowledged or verified by any two or
more officers.
Section 2. The board of directors at its first meeting after each
annual meeting of shareholders shall choose a president, a vice president, a
secretary and a treasurer, none of whom need be a member of the board.
Section 3. The board may appoint such other officers and agents as it
shall deem necessary, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the board.
Section 4. The salaries of all officer and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify in their stead. Any officer elected or
appointed by the board of directors may be removed at any time by the
affirmative vote of a majority of the whole board of directors. If the office of
any officer or officers becomes vacant for any reason, the vacancy shall be
filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation; he shall preside at all meetings of the shareholders and directors,
shall be ex officio a member of the executive committee or any other committee,
shall have general and active management of the business of the corporation, and
shall see that all orders and resolutions of the board are carried into effect.
<PAGE>
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE PRESIDENTS
Section 8. The vice presidents in the order of their seniority, unless
otherwise determined by the board of directors, shall, in the absence or
disability of the president, perform the duties and exercise the powers of the
president. They shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall keep in safe custody
the seal of the corporation and, when authorized by the board of directors,
affix the same
<PAGE>
to any instrument requiring it and, when so affixed, it shall be attested by his
signature or by the signature of the treasurer or an assistant secretary.
Section 10. The assistant secretaries in the order of their seniority
unless otherwise determine by the board of directors, shall, in the absence or
disability of the secretary, perform the duties and exercise the powers of the
secretary. They shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of
<PAGE>
the duties of his office and for the restoration to the corporation, in case of
his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurers in the order of their seniority,
unless otherwise determined by the board of directors, shall, in the absence or
disability of the treasurer, perform the duties and exercise the powers of the
treasurer. They shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Each holder of shares is entitled to one or more
certificates, signed by the president or a vice president and by the secretary,
an assistant secretary, the treasurer, or an assistant treasurer of the
corporation, which shall certify the number and class of shares held by him in
the corporation. Every certificate shall state that the corporation is organized
under the laws of Ohio, the name of the person to whom the shares represented by
the certificate are issued, the number of shares represented by the certificate,
and the par value of each share represented by it or that the shares are without
par value, and if the shares are classified, the designation of the class, and
the series, if any, of the shares represented by the certificate. There shall
also be stated on the face or back of the certificate the express terms, if any,
of the shares represented by the certificate and of the
<PAGE>
other class or classes and series of shares, if any, which the corporation is
authorized to issue, or a summary of such express terms, or that the corporation
will mail to the shareholder a copy of such express terms without charge within
five days after receipt of written request therefor, or that a copy of such
express terms is attached to and by reference made a part of such certificate
and that the corporation will mail to the shareholder a copy of such express
terms without charge within five days after receipt of written request therefor
if the copy has become detached from the certificate.
Section 2. In case of any restriction on transferability of shares or
reservation of lien thereon, the certificate representing such shares shall set
forth on the face or back thereof the statements required by the General
Corporation Law of Ohio to make such restrictions or reservations effective.
Section 3. Where a certificate is countersigned by an incorporated
transfer agent or registrar, the signature of any of the officers specified in
Section l of this article may be facsimile, engraved, stamped, or printed.
Although any officer of the corporation, whose manual or facsimile signature has
been placed upon such certificate, ceases to be such officer before the
certificate is delivered, such certificate nevertheless shall be effective in
all respects when delivered.
LOST CERTIFICATES
Section 4. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such
<PAGE>
issue of a new certificate or certificates, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require and/or
to give the corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificate alleged to have been lost or destroyed.
TRANSFERS OF STOCK
Section 5. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 6. For any lawful purpose, including without limitation, (1)
the determination of the shareholders who are entitled to receive notice of or
to vote at a meeting of shareholders; (2) receive payment of any dividend or
distribution; (3) receive or exercise rights of purchase of or subscription for,
or exchange or conversion of, shares or other securities, subject to contract
rights with respect thereto; or (4) participate in the execution of written
consents, waivers, or releases, the directors may fix a record date which shall
not be a date earlier than the date on which the record date is fixed and, in
the cases provided for in clauses (l), (2) and (3) above, shall not be more than
sixty days, preceding the date of the meeting of the shareholders, or the date
fixed for the payment of
<PAGE>
any dividend or distribution, or the date fixed for the receipt or the exercise
of rights, as the case may be.
Section 7. If a meeting of the shareholders is called by persons
entitled to call the same, or action is taken by shareholders without a meeting,
and if the directors fail or refuse, within such time as the persons calling
such meeting or initiating such other action may request, to fix a record date
for the purpose of determining the shareholders entitled to receive notice of or
vote at such meeting, or to participate in the execution of written consents,
waivers, or releases, then the persons calling such meeting or initiating such
other action may fix a record date for such purposes, subject to the limitations
set forth in Section 6 of this article.
Section 8. The record date for the purpose of clause (1) of Section 6
of this article shall continue to be the record date for all adjournments of
such meeting, unless the directors or the persons who shall have fixed the
original record date shall, subject to the limitations set forth in Section 6 of
this article, fix another date, and in case a new record date is so fixed,
notice thereof and of the date to which the meeting shall have been adjourned
shall be given to shareholders of record as of said date in accordance with the
same requirements as those applying to a meeting newly called.
Section 9. The directors may close the share transfer books against
transfers of shares during the whole or any part of the period provided for in
Section 6 of this article, including the date of the meeting of the shareholders
and the period ending with the date, if any, to which adjourned. If no record
date is fixed therefor, the record date for determining the shareholders who are
entitled to receive notice of, or who are entitled to
<PAGE>
vote at, a meeting of shareholders, shall be the date next preceding the day on
which notice is given, or the date next preceding the day on which the meeting
is held, as the case may be.
Section 10. The corporation shall be entitled to recognize the
exclusive rights of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of Ohio.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. The board of directors may declare and the corporation may
pay dividends and distributions on its outstanding shares in cash, property, or
its own shares pursuant to law and subject to the provisions of its articles of
incorporation.
Section 2. Before payment of any dividend or distribution, there may
be set aside out of any funds of the corporation available for dividends or
distributions such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve fund to meet contingencies, or
for equalizing dividends or distributions, or for repairing or maintaining any
property of the corporation, or for such other purposes as the
<PAGE>
directors shall think conducive to the interests of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
ANNUAL STATEMENT
Section 3. At the annual meeting of shareholders, or the meeting held
in lieu of it, the corporation shall prepare and lay before the shareholders a
financial statement consisting of: A balance sheet containing a summary of the
assets, liabilities, stated capital, if any, and surplus (showing separately any
capital surplus arising from unrealized appreciation of assets, other capital
surplus, and earned surplus) of the corporation as of a date not more than four
months before such meeting; if such meeting is an adjourned meeting, the balance
sheet may be as of a date not more than four months before the date of the
meeting as originally convened; and a statement of profit and loss and surplus,
including a summary of profits, dividends or distributions paid, and other
changes in the surplus accounts of the corporation for the period commencing
with the date marking the end of the period for which the last preceding
statement of profit and loss required under this section was made and ending
with the date of the balance sheet, or in the case of the first statement of
profit and loss, from the incorporation of the corporation to the date of the
balance sheet.
The financial statement shall have appended to it a certificate signed
by the president or a vice president or the treasurer or an assistant treasurer
or by a public accountant or firm of public accountants to the effect that the
financial statement presents fairly the position of the corporation and the
results of its operations in conformity with
<PAGE>
generally accepted accounting principles applied on a basis consistent for the
period covered thereby, or to the effect that the financial statements have been
prepared on the basis of accounting practices and principles that are reasonable
in the circumstances.
Section 4. Upon the written request of any shareholder made within
sixty days after notice of any such meeting has been given, the corporation, not
later than the fifth day after receiving such request or the fifth day before
such meeting, whichever is the later date, shall mail to such shareholder a copy
of such financial statement.
CHECKS
Section 5. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers as the board of
directors may from time to time designate.
FISCAL YEAR
Section 6. The fiscal year of the corporation shall end on the last
Saturday in April.
SEAL
Section 7. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Ohio." The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or in any other manner reproduced.
<PAGE>
ARTICLE VIII
AMENDMENTS
Section 1. These regulations may be amended or new regulations adopted
by the affirmative vote of the holders of shares entitling them to exercise a
majority of the voting power on such proposal, at any regular meeting of the
shareholders, or at any special meeting of the shareholders if notice of the
proposal to amend or add to the regulations be contained in the notice of the
meeting, or, without a meeting, by the written consent of the holders of record
of shares entitling them to exercise a majority of the voting power on such
proposal.
<PAGE>
Exhibit 3.71
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
NEW MEXICO OFFICE SOLUTIONS, INC.
Pursuant to the provisions of Section 53-13-7 of the New Mexico
Statutes Annotated, the undersigned corporation pursuant to a resolution duly
adopted by its board of directors, hereby adopts the following Amended and
Restated Articles of Incorporation:
Article One: The name of the corporation is US Office Products, New Mexico
District, Inc.
Article Two: The period of its duration is perpetual.
Article Three: The purpose or purposes for which the corporation is organized
is(a) to purchase, sell, market and distribute office furniture and
office educational supplies and related products and (b)to engage in
any transaction of any lawful business for which corporations may be
incorporated under the New Mexico Business Corporation Act.
Article Four: The aggregate number of shares which the corporation shall have
authority to issue is 1,000 shares of common stock, with no par value.
Article Five: The name of its registered agent is CT Corporation System, and the
street address, city and zip code of the registered office in New
Mexico is 123 East Marcy, Santa Fe, New Mexico 87504.
The articles of incorporation of this corporation are amended and
restated in their entirety as set forth above. The original articles of
incorporation of the corporation were filed by the State Corporation Commission
on September 2, 1986.
1
<PAGE>
Dated September 25, 1998
NEW MEXICO OFFICE SOLUTIONS, INC.
By: /s/ Kathleen M. Delaney
-----------------------------
Its Vice President
And: /s/ Mark D. Director
----------------------------
Its Assistant Secretary
2
<PAGE>
STATE OF )
--------------------
SS.
COUNTY OF )
-------------------
We, Kathleen M. Delaney and Mark D. Director being the Vice President
and Assistant Secretary respectively of New Mexico Office Solutions, Inc., do
hereby depose and say that we have been authorized to execute these Restated
Articles by resolution of the Board of Directors adopted on September 25, 1998,
and the above Restated Articles of Incorporation correctly set forth without
change the corresponding provisions of the Articles of Incorporation as
heretofore amended, and supersede the original Articles of Incorporation and all
amendments thereto.
-----------------------------
Vice President
-----------------------------
Assistant Secretary
Sworn to before me, a Notary Public, on this______day of
________________, 19____.
Sworn to before me, a Notary Public, on this _____ day of ________________,
19____.
3
<PAGE>
Exhibit 3.72
US OFFICE PRODUCTS, NEW MEXICO DISTRICT, INC.
* * * * *
AMENDED AND RESTATED
B Y L A W S
* * * * *
ARTICLE I
OFFICES
Section l. The registered office shall be located in Santa Fe, New
Mexico.
Section 2. The corporation may also have offices at such other places
both within and without the State of New Mexico as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section l. All meetings of shareholders for the election of directors
shall be held in Santa Fe State of New Mexico, at such place as may be fixed
from time to time by the board of directors. Said meetings may also be held at
such other place either within or without the State
1
<PAGE>
of New Mexico as shall be designated from time to time by the board of directors
and stated in the notice of the meeting.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be delivered not less than ten nor more
than fifty days before the date of the meeting, either personally or by mail, by
or at the direction of the president, the secretary, or the officer or persons
calling the meeting, to each shareholder of record entitled to vote at such
meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section l. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of New Mexico as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president, the board of directors, or the
holders of not less than one-tenth of all the shares entitled to vote at the
meeting.
2
<PAGE>
Section 3. Written or printed notice of a special meeting stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than ten nor more than fifty days
before the date of the meeting, either personally or by mail, by or at the
direction of the president, the secretary, or the officer or persons calling the
meeting, to each shareholder of record entitled to vote at such meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section l. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified.
3
<PAGE>
Section 2. If a quorum is present, the affirmative vote of a majority
of the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Section 4. Any action required to be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Directors need not be
residents of the State of New Mexico nor shareholders of the corporation. The
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
Section 2. Any vacancy occurring in the board of directors may be
filled by the affirmative vote of a majority of the remaining directors though
less than a quorum of the board
4
<PAGE>
of directors. A director elected to fill a vacancy shall be elected for the
unexpired portion of the term of his predecessor in office. Any directorship to
be filled by reason of an increase in the number of directors may be filled by
the affirmative vote of a majority of the directors present at a meeting at
which a quorum is present. A director elected to fill a newly created
directorship shall serve until the next succeeding annual meeting of
shareholders.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these bylaws directed or required to be exercised or done by
the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
New Mexico, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section l. Meetings of the board of directors, regular or special, may
be held either within or without the State of New Mexico.
5
<PAGE>
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held
upon such notice, or without notice, and at such time and at such place as
shall from time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 2 days' notice to each director, either personally or by mail
or by telegram; special meetings shall be called by the president or secretary
in like manner and on like notice on the written request of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
Section 6. A majority of the directors shall constitute a quorum for
the transaction of business unless a greater number is required by law or by the
articles of incorporation. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
unless the act of a greater number is required by statute or by the articles of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors
6
<PAGE>
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors entitled to
vote with respect to the subject matter thereof.
Section 8. Unless otherwise restricted by the articles of incorporation
or these bylaws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors, or any committee, by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear each other, and participation in a meeting in this manner shall constitute
presence in person at the meeting.
ARTICLE VII
EXECUTIVE COMMITTEE
Section l. The board of directors, by resolution adopted by a majority
of the full board of directors may designate two or more directors to constitute
an executive committee, which committee, to the extent provided in such
resolution, shall have and exercise all of the authority of the board of
directors in the management of the corporation, except as otherwise required by
law. Vacancies in the membership of the committee shall be filled by the board
of directors at a regular or special meeting of the board of directors. The
executive committee shall keep regular minutes of its proceedings and report the
same to the board when required.
7
<PAGE>
ARTICLE VIII
NOTICES
Section l. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these bylaws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these bylaws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
ARTICLE IX
OFFICERS
Section l. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
8
<PAGE>
Any two or more offices may be held by the same person, except the offices of
president and secretary.
Section 2. The board of directors at its first meeting after each
annual meeting of shareholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member of
the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
9
<PAGE>
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary.
10
<PAGE>
The board of directors may give general authority to any other officer to affix
the seal of the corporation and to attest the affixing by his signature.
Section l0. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section ll. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section l2. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section l3. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers,
11
<PAGE>
money and other property of whatever kind in his possession or under his control
belonging to the corporation.
Section l4. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section l. The shares of the corporation shall be represented by
certificates or shall be uncertificated shares. Certificates shall be signed by
the chairman or vice-chairman of the board of directors or the president or a
vice-president and by the treasurer or an assistant treasurer, or the secretary,
or an assistant secretary of the corporation, and may be sealed with the seal of
the corporation or a facsimile thereof.
When the corporation is authorized to issue shares of more than one
class there shall be set forth upon the face or back of the certificate
representing shares, or the certificate representing shares shall have a
statement that the corporation will furnish to any shareholder upon request and
without charge, a full statement of the designations, preferences, limitations,
and relative rights of the shares of each class authorized to be issued and, if
the corporation is authorized to issue any preferred or special class in series,
the variations in the relative rights and
12
<PAGE>
preferences between the shares of each such series so far as the same have been
fixed and determined and the authority of the board of directors to fix and
determine the relative rights and preferences of subsequent series.
Section 2. Any or all of the signatures of the officers of the
corporation upon a certificate may be facsimiles. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon such 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 were such officer, transfer agent or registrar at
the date of its issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession,
13
<PAGE>
assignment or authority to transfer, a new certificate representing shares or
the equivalent in uncertificated shares, if authorized, shall be issued to the
person entitled thereto, and the old certificate cancelled and the transaction.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
CLOSING OF TRANSFER BOOKS
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders, or any adjournment thereof
or entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors may provide that the stock transfer books shall be closed for a stated
period but not to exceed, in any case, fifty days. If the stock transfer books
shall be closed for the purpose of determining shareholders entitled to notice
of or to vote at a meeting of shareholders, such books shall be closed for at
least ten days immediately preceding such meeting. In lieu of closing the stock
transfer books, the board of directors may fix in advance a date as the record
date for any such determination of shareholders, such date in any case to be not
more than fifty days and, in case of a meeting of shareholders, not less than
ten days prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken. If the stock transfer books are
not closed and no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive
14
<PAGE>
payment of a dividend, the date on which notice of the meeting is mailed or the
date on which the resolution of the board of directors declaring such dividend
is adopted, as the case may be, shall be the record date for such determination
of shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of New
Mexico.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the transfer books for
shares shall make at least ten days before each meeting of shareholders, a
complete list of the shareholders entitled to vote at such meeting, arranged in
alphabetical order, with the address of each and the number of shares held by
each, which list, for a period of ten days prior to such meeting, shall be kept
on file at the registered office of the corporation and shall be subject to
inspection by any shareholder at any time during usual business hours. Such list
shall also be produced and kept open at
15
<PAGE>
the time and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting. The original share ledger or
transfer book, or a duplicate thereof, shall be prima facie evidence as to who
are the shareholders entitled to examine such list or share ledger or transfer
book or to vote at any meeting of the shareholders.
ARTICLE XI
GENERAL PROVISIONS
DISTRIBUTIONS
Section l. Subject to the provisions of the articles of incorporation
relating thereto, if any, distributions may be declared by the board of
directors at any regular or special meeting, pursuant to law. Distributions may
be paid in cash, in property or in shares of the capital stock, subject to any
provisions of the articles of incorporation.
Section 2. Before payment of any distribution there may be set aside
out of any funds of the corporation available for distributions such sum or sums
as the directors from time to time, in their absolute discretion, think proper
as a reserve fund to meet contingencies, or for equalizing distributions or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
16
<PAGE>
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday of April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal, New
Mexico." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section l. These bylaws may be altered, amended, or repealed or new
bylaws may be adopted by the affirmative vote of a majority of the board of
directors at any regular or special meeting of the board.
17
<PAGE>
Exhibit 3.73
Prescribed by
Bob Taft, Secretary of State Charter
No.
30 East Broad Street, 14th Floor Approved
Columbus, Ohio 43266-0418
Date
Form C-108 (January 1991) Fee
CERTIFICATE OF AMENDED ARTICLES OF INCORPORATION
Of
The Office Furniture Store, Inc.
(Name of Corporation)
Kathleen M. Delaney , who is:
Chairman of the Board President x Vice President (check one)
-----
and
Mark D. Director Secretary x Assistant Secretary (check one)
-----
/ / a meeting of the shareholders was duly called and held on the the day
of , 19 ' at which meeting a quorum of the shareholders
was present in person or by proxy, and that by the affirmative vote of the
holders of shares entitling them to exercise % of the
voting power if the corporation,
/ / in a writing signed by all the shareholders who would be entitled to a
notice of a meeting held for that purpose,
the following Amended Articles of Incorporation were adopted to supersede and
take the place of the existing Articles and all amendments thereto.
AMENDED ARTICLES OF INCORPORATION
FIRST: The name of the corporation is: The Office Furniture Store, Inc. --
SECOND: The place in the State of Ohio where its principal office is located is
in the City of
Cincinnati Hamilton County.
THIRD: The purposes of the corporation are as follows:
To engage in any lawful act or activity for which corporations may be formed
under Sections 1201.01 to 1701.98, inclusive, of the Ohio Revised Code.
<PAGE>
FOURTH: The number of shares which the corporation is authorized to have
outstanding is: 1,000 shares of common Stock, with no par value
FIFTH: These Amended Articles of Incorporation take the place of and supersede
the existing Articles of Incorporation as heretofore amended.
IN WITNESS WHEREOF, the above named officers, acting for and on behalf of
the corporation, have hereunto subscribed their names this 25th day of
September, 1998
THE OFFICE FURNITURE STORE, INC.
BY: /s/ Kathleen M. Delaney
----------------------------------
Kathleen M. Delaney
(President or Vice President)
BY: /s/ Mark D. Director
-----------------------------------
Mark D. Director
(Secretary or Assistant Secretary)
NOM Ohio law does not permit one officer or sign in two capacities. Two
separate signatures are required, even if this necessitates the election of a
second officer before the filing can be made.
<PAGE>
Exhibit 3.74
* * * * *
AMENDED AND RESTATED
REGULATIONS
of
THE OFFICE FURNITURE STORE, INC.
* * * * *
ARTICLE I
OFFICES
Section 1. The principal office shall be in the City of Cleveland,
County of Hamilton, State of Ohio.
Section 2. The corporation may also have offices at such other places as
the board of directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
SHAREHOLDERS' MEETINGS
Section 1. Meetings of the shareholders shall be in the City of
Cincinnati, County of Hamilton, State of Ohio.
Section 2. An annual meeting of the shareholders, commencing with the
year 1999, shall be held in the last week of June in each year at 10:00 a.m.,
when they shall
<PAGE>
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
Section 3. Written notice stating the time, place and purpose of a
meeting of the shareholders shall be given either by personal delivery or by
mail not less than 10 nor more than 20 days before the date of the meeting to
each shareholder of record entitled to notice of the meeting by or at the
direction of the president or a vice president or the secretary or an assistant
secretary. If mailed, such notice shall be addressed to the shareholder at his
address as it appears on the records of the corporation. Notice of adjournment
of a meeting need not be given if the time and place to which it is adjourned
are fixed and announced at such meeting.
Section 4. Meetings of the shareholders may be called by the president
or a vice president, or the directors by action at a meeting, or a majority of
the directors acting without a meeting or by the secretary of the corporation
upon the order of the board of directors, or by the persons who hold twenty-five
per cent of all the shares outstanding and entitled to vote thereat. Upon the
request in writing delivered either in person or by registered mail to the
president or secretary by any persons entitled to call a meeting of the
shareholders, such officer shall forthwith cause notice to be given to the
shareholders entitled thereto. If such request be refused, then the persons
making such request may call a meeting by giving notice in the manner provided
in these regulations.
Section 5. Business transacted at any special meeting of shareholders
shall be confined to the purposes stated in the notice.
<PAGE>
Section 6. Upon request of any shareholders at any meeting of
shareholders, there shall be produced at such meeting an alphabetically arranged
list, or classified lists, of the shareholders of record as of the record date
of such meeting, who are entitled to vote, showing their respective addresses
and the number and class of shares held by each. Such list or lists when
certified by the officer or agent in charge of the transfers of shares shall be
prima-facie evidence of the facts shown therein.
Section 7. The holders of all of the shares issued and outstanding
having voting power, present in person or represented by proxy, shall be
requisite and shall constitute a quorum at all meetings of shareholders for the
transaction of business, except that at any meeting of shareholders called to
take any action which is authorized or regulated by statute, in order to
constitute a quorum, there shall be present in person or represented by proxy
the holders of record of shares entitling them to exercise the voting power
required by statute, the articles of incorporation, or these regulations, to
authorize or take the action proposed or stated in the notice of the meeting.
If, however, such quorum shall not be present or represented at any meeting of
the shareholders, the shareholders entitled to vote thereat, present in person
or represented by proxy, shall have 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 such adjourned meeting at which a quorum
shall be present or represented any business may be transacted which might have
been transacted at the meeting as originally notified.
Section 8. When a quorum is present or represented at any meeting, the
vote of the holders of a majority of the stock having voting power, present in
person or
<PAGE>
represented by proxy, shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of the statutes or
of the articles of incorporation or of these regulations, a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 9. At every meeting of shareholders, each outstanding share
having voting power shall entitle the holder thereof to one vote on each matter
properly submitted to the shareholders, subject to the provisions with respect
to cumulative voting set forth in this section. If notice in writing is given by
any shareholder to the president, a vice president or the secretary, not less
than forty-eight hours before the time fixed for holding a meeting of the
shareholders for the purpose of electing directors if notice of such meeting
shall have been given at least ten days prior thereto, and otherwise not less
than twenty-four hours before such time, that he desires that the voting at such
election shall be cumulative, and if an announcement of the giving of such
notice is made upon the convening of the meeting by the chairman or secretary or
by or on behalf of the shareholder giving such notice, each shareholder shall
have the right to cumulate such voting power as he possesses and to give one
candidate as many votes as the number of directors to be elected multiplied by
the number of his votes equals, or to distribute his votes on the same principle
among two or more candidates, as he sees fit. A shareholder shall be entitled to
vote even though his shares have not been fully paid, but shares upon which an
installment of the purchase price is overdue and unpaid shall not be voted.
Section 10. A person who is entitled to attend a shareholders' meeting,
to vote thereat, or to execute consents, waivers, or releases, may be
represented at such meeting
<PAGE>
or vote thereat, and execute consents, waivers, and releases, and exercise any
of his other rights, by proxy or proxies appointed by a writing signed by such
person. A telegram or cablegram appearing to have been transmitted by such
person, or a photographic, photostatic, or equivalent reproduction of a writing,
appointing a proxy is sufficient writing. No appointment of a proxy shall be
valid after the expiration of eleven months after it is made unless the writing
specifies the date on which it is to expire or the length of time it is to
continue in force.
Section 11. Unless the articles or these regulations prohibit the
authorization or taking of any action of the shareholders without a meeting, any
action which may be authorized or taken at a meeting of the shareholders may be
authorized or taken without a meeting with the affirmative vote or approval of,
and in a writing or writings signed by all the shareholders who would be
entitled to notice of a meeting of the shareholders held for such purpose, which
writing or writings shall be filed with or entered upon the records of the
corporation.
ARTICLE III
DIRECTORS
Section 1. The number of directors, which shall not be less than three,
may be fixed or changed at a meeting of shareholders called for the purpose of
electing directors. The first board shall consist of three directors. Except
where the law, the articles of incorporation, or these regulations require any
action to be authorized or taken by shareholders, all of the authority of the
corporation shall be exercised by the directors.
<PAGE>
The directors shall be elected at the annual meeting of shareholders, except as
provided in Section 2 of this article, and each director shall hold office until
the next annual meeting of the shareholders and until his successor is elected
and qualified, or until his earlier resignation, removal from office, or death.
When the annual meeting is not held or directors are not elected thereat, they
may be elected at a special meeting called for that purpose. Directors need not
be shareholders.
Section 2. If the office of any director or directors becomes vacant by
reason of death, resignation, retirement, disqualification, removal from office,
or otherwise, the remaining directors, though less than a quorum, shall by a
vote of a majority of their number, choose a successor or successors, who shall
hold office for the unexpired term in respect to which such vacancy occurred.
Section 3. For their own government the directors may adopt by-laws not
inconsistent with the articles of incorporation or these regulations.
Section 4. The directors may hold their meeting, and keep the books of
the corporation, outside the State of Ohio, at such places as they may from time
to time determine but, if no transfer agent is appointed to act for the
corporation in Ohio, it shall keep an office in Ohio at which shares shall be
transferable and at which it shall keep books in which shall be recorded the
names and addresses of all shareholders and all transfers of shares.
<PAGE>
COMMITTEES
Section 5. The directors may at any time elect three or more of their
number as an executive committee or other committees, which shall, in the
interval between meetings of the board of directors, exercise such powers and
perform such duties as may from time to time be prescribed by the board of
directors. Any such committee shall be subject at all times to the control and
direction of the board of directors. Unless otherwise ordered by the board of
directors, any such committee may act by a majority of its members at a meeting
or by a writing or writings signed by all its members. An act or authorization
of an act by any such committee within the authority delegated to it shall be as
effective for all purposes as the act or authorization of the board of
directors.
Section 6. The committee shall keep regular minutes of their
proceedings and report the same to the board when required.
COMPENSATION OF DIRECTORS
Section 7. Directors, as such, shall not receive any stated salary for
their services but, by resolution of the board, a fixed sum, and expenses of
attendance if any, may be allowed for attendance at each regular or special
meeting of the board; provided that nothing herein contained shall be construed
to preclude any director from serving the corporation in any other capacity and
receiving compensation therefor.
Section 8. Members of the executive committee or other committees may
be allowed like compensation for attending committee meetings.
<PAGE>
MEETINGS OF THE BOARD
Section 9. The first meeting of each newly elected board shall be held
at such time and place, either within or without the State of Ohio, as shall be
fixed by the vote of the shareholders at the annual meeting, of which two days'
notice shall be delivered personally or sent by mail or telegram to each newly
elected director. Such meeting may be held at any place or time as may be fixed
by the consent in writing of all the directors, given either before or after the
meeting.
Section 10. Regular meetings of the board may be held at such time and
place, either within or without the State of Ohio, as shall be determined by the
board.
Section 11. Special meetings of the board may be called by the
president, any vice president, or by two directors on two days' notice to each
director, either delivered personally or sent by mail, telegram or cablegram.
The notice need not specify the purposes of the meeting.
Section 12. At all meetings of the board a majority directors shall be
necessary and sufficient to constitute a quorum for the transaction of business,
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the board of directors, except as may be
otherwise specifically provided by statute or by the articles of incorporation
or by these regulations. If a quorum shall not be present at any meeting of
directors, the directors present thereat may adjourn the meeting from time to
time, until a quorum shall be present. Notice of adjournment of a meeting need
not be given to absent directors if the time and place are fixed at the meeting
adjourned.
<PAGE>
Section 13. Unless the articles or these regulations prohibit the
authorization or taking of any action of the directors without a meeting, any
action which may be authorized or taken at a meeting of the directors may be
authorized or taken without a meeting with the affirmative vote or approval of,
and in a writing or writings signed by all the directors, which writing or
writings shall be filed with or entered upon the records of the corporation.
REMOVAL OF DIRECTORS
Section 14. All the directors, or all the directors of a particular
class, if any, or any individual director may be removed from office, without
assigning any cause, by the vote of the holders of a majority of the voting
power entitling them to elect directors in place of those to be removed,
provided that unless all the directors, or all the directors of a particular
class, if any, are removed, no individual director shall be removed in case the
votes of a sufficient number of shares are cast against his removal which, if
cumulatively voted at an election of all the directors, or all the directors of
a particular class, if any, as the case may be, would be sufficient to elect at
least one director. In case of any such removal, a new director may be elected
at the same meeting for the unexpired term of each director removed. Failure to
elect a director to fill the unexpired term of any director removed shall be
deemed to create a vacancy in the board.
<PAGE>
ARTICLE IV
NOTICES
Section 1. Notices to directors and shareholders shall be in writing
and delivered personally or mailed to the directors or shareholders at their
addresses appearing on the books of the corporation. Notice by mail shall be
deemed to be given at the time when the same shall be mailed. Notice to
directors and shareholders may also be given by telegram or telephone.
Section 2. Notice of the time, place and purposes of any meeting of
shareholders or directors as the case may be, whether required by law, the
articles of incorporation or these regulations, may be waived in writing, either
before or after the holding of such meeting, by any shareholder, or by any
director, which writing shall be filed with or entered upon the records of the
meeting.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
directors and shall be a president, a vice president, a secretary and a
treasurer. The board of directors may also choose additional vice presidents,
and one or more assistant secretaries and assistant treasurers. Any two or more
of such offices except the offices of president and vice president, may be held
by the same person, but no officer shall execute, acknowledge or verify any
instrument in more than one capacity if such instrument is required by law
<PAGE>
or by these regulations to be executed, acknowledged or verified by any two or
more officers.
Section 2. The board of directors at its first meeting after each
annual meeting of shareholders shall choose a president, a vice president, a
secretary and a treasurer, none of whom need be a member of the board.
Section 3. The board may appoint such other officers and agents as it
shall deem necessary, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the board.
Section 4. The salaries of all officer and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify in their stead. Any officer elected or
appointed by the board of directors may be removed at any time by the
affirmative vote of a majority of the whole board of directors. If the office of
any officer or officers becomes vacant for any reason, the vacancy shall be
filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation; he shall preside at all meetings of the shareholders and directors,
shall be ex officio a member of the executive committee or any other committee,
shall have general and active management of the business of the corporation, and
shall see that all orders and resolutions of the board are carried into effect.
<PAGE>
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE PRESIDENTS
Section 8. The vice presidents in the order of their seniority, unless
otherwise determined by the board of directors, shall, in the absence or
disability of the president, perform the duties and exercise the powers of the
president. They shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall keep in safe custody
the seal of the corporation and, when authorized by the board of directors,
affix the same
<PAGE>
to any instrument requiring it and, when so affixed, it shall be attested by his
signature or by the signature of the treasurer or an assistant secretary.
Section 10. The assistant secretaries in the order of their seniority
unless otherwise determine by the board of directors, shall, in the absence or
disability of the secretary, perform the duties and exercise the powers of the
secretary. They shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of
<PAGE>
the duties of his office and for the restoration to the corporation, in case of
his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurers in the order of their seniority,
unless otherwise determined by the board of directors, shall, in the absence or
disability of the treasurer, perform the duties and exercise the powers of the
treasurer. They shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Each holder of shares is entitled to one or more
certificates, signed by the president or a vice president and by the secretary,
an assistant secretary, the treasurer, or an assistant treasurer of the
corporation, which shall certify the number and class of shares held by him in
the corporation. Every certificate shall state that the corporation is organized
under the laws of Ohio, the name of the person to whom the shares represented by
the certificate are issued, the number of shares represented by the certificate,
and the par value of each share represented by it or that the shares are without
par value, and if the shares are classified, the designation of the class, and
the series, if any, of the shares represented by the certificate. There shall
also be stated on the face or back of the certificate the express terms, if any,
of the shares represented by the certificate and of the
<PAGE>
other class or classes and series of shares, if any, which the corporation is
authorized to issue, or a summary of such express terms, or that the corporation
will mail to the shareholder a copy of such express terms without charge within
five days after receipt of written request therefor, or that a copy of such
express terms is attached to and by reference made a part of such certificate
and that the corporation will mail to the shareholder a copy of such express
terms without charge within five days after receipt of written request therefor
if the copy has become detached from the certificate.
Section 2. In case of any restriction on transferability of shares or
reservation of lien thereon, the certificate representing such shares shall set
forth on the face or back thereof the statements required by the General
Corporation Law of Ohio to make such restrictions or reservations effective.
Section 3. Where a certificate is countersigned by an incorporated
transfer agent or registrar, the signature of any of the officers specified in
Section l of this article may be facsimile, engraved, stamped, or printed.
Although any officer of the corporation, whose manual or facsimile signature has
been placed upon such certificate, ceases to be such officer before the
certificate is delivered, such certificate nevertheless shall be effective in
all respects when delivered.
LOST CERTIFICATES
Section 4. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such
<PAGE>
issue of a new certificate or certificates, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require and/or
to give the corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificate alleged to have been lost or destroyed.
TRANSFERS OF STOCK
Section 5. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 6. For any lawful purpose, including without limitation, (1)
the determination of the shareholders who are entitled to receive notice of or
to vote at a meeting of shareholders; (2) receive payment of any dividend or
distribution; (3) receive or exercise rights of purchase of or subscription for,
or exchange or conversion of, shares or other securities, subject to contract
rights with respect thereto; or (4) participate in the execution of written
consents, waivers, or releases, the directors may fix a record date which shall
not be a date earlier than the date on which the record date is fixed and, in
the cases provided for in clauses (l), (2) and (3) above, shall not be more than
sixty days, preceding the date of the meeting of the shareholders, or the date
fixed for the payment of
<PAGE>
any dividend or distribution, or the date fixed for the receipt or the exercise
of rights, as the case may be.
Section 7. If a meeting of the shareholders is called by persons
entitled to call the same, or action is taken by shareholders without a meeting,
and if the directors fail or refuse, within such time as the persons calling
such meeting or initiating such other action may request, to fix a record date
for the purpose of determining the shareholders entitled to receive notice of or
vote at such meeting, or to participate in the execution of written consents,
waivers, or releases, then the persons calling such meeting or initiating such
other action may fix a record date for such purposes, subject to the limitations
set forth in Section 6 of this article.
Section 8. The record date for the purpose of clause (1) of Section 6
of this article shall continue to be the record date for all adjournments of
such meeting, unless the directors or the persons who shall have fixed the
original record date shall, subject to the limitations set forth in Section 6 of
this article, fix another date, and in case a new record date is so fixed,
notice thereof and of the date to which the meeting shall have been adjourned
shall be given to shareholders of record as of said date in accordance with the
same requirements as those applying to a meeting newly called.
Section 9. The directors may close the share transfer books against
transfers of shares during the whole or any part of the period provided for in
Section 6 of this article, including the date of the meeting of the shareholders
and the period ending with the date, if any, to which adjourned. If no record
date is fixed therefor, the record date for determining the shareholders who are
entitled to receive notice of, or who are entitled to
<PAGE>
vote at, a meeting of shareholders, shall be the date next preceding the day on
which notice is given, or the date next preceding the day on which the meeting
is held, as the case may be.
Section 10. The corporation shall be entitled to recognize the
exclusive rights of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of Ohio.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. The board of directors may declare and the corporation may
pay dividends and distributions on its outstanding shares in cash, property, or
its own shares pursuant to law and subject to the provisions of its articles of
incorporation.
Section 2. Before payment of any dividend or distribution, there may be
set aside out of any funds of the corporation available for dividends or
distributions such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve fund to meet contingencies, or
for equalizing dividends or distributions, or for repairing or maintaining any
property of the corporation, or for such other purposes as the
<PAGE>
directors shall think conducive to the interests of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
ANNUAL STATEMENT
Section 3. At the annual meeting of shareholders, or the meeting held
in lieu of it, the corporation shall prepare and lay before the shareholders a
financial statement consisting of: A balance sheet containing a summary of the
assets, liabilities, stated capital, if any, and surplus (showing separately any
capital surplus arising from unrealized appreciation of assets, other capital
surplus, and earned surplus) of the corporation as of a date not more than four
months before such meeting; if such meeting is an adjourned meeting, the balance
sheet may be as of a date not more than four months before the date of the
meeting as originally convened; and a statement of profit and loss and surplus,
including a summary of profits, dividends or distributions paid, and other
changes in the surplus accounts of the corporation for the period commencing
with the date marking the end of the period for which the last preceding
statement of profit and loss required under this section was made and ending
with the date of the balance sheet, or in the case of the first statement of
profit and loss, from the incorporation of the corporation to the date of the
balance sheet.
The financial statement shall have appended to it a certificate signed
by the president or a vice president or the treasurer or an assistant treasurer
or by a public accountant or firm of public accountants to the effect that the
financial statement presents fairly the position of the corporation and the
results of its operations in conformity with
<PAGE>
generally accepted accounting principles applied on a basis consistent for the
period covered thereby, or to the effect that the financial statements have been
prepared on the basis of accounting practices and principles that are reasonable
in the circumstances.
Section 4. Upon the written request of any shareholder made within
sixty days after notice of any such meeting has been given, the corporation, not
later than the fifth day after receiving such request or the fifth day before
such meeting, whichever is the later date, shall mail to such shareholder a copy
of such financial statement.
CHECKS
Section 5. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers as the board of directors may from
time to time designate.
FISCAL YEAR
Section 6. The fiscal year of the corporation shall end on the last
Saturday in April.
SEAL
Section 7. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Ohio." The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or in any other manner reproduced.
<PAGE>
ARTICLE VIII
AMENDMENTS
Section 1. These regulations may be amended or new regulations adopted
by the affirmative vote of the holders of shares entitling them to exercise a
majority of the voting power on such proposal, at any regular meeting of the
shareholders, or at any special meeting of the shareholders if notice of the
proposal to amend or add to the regulations be contained in the notice of the
meeting, or, without a meeting, by the written consent of the holders of record
of shares entitling them to exercise a majority of the voting power on such
proposal.
<PAGE>
Exhibit 3.75
(CHANGES) BUREAU USE ONLY.,
DOCKETING STATEMENT D SCB: 15-134B (Rev 95) REVENUE -LABOR & INDUSTRY
OTHER
FILING FEE. NONE FILE CODE
FILED DATE
This form (file in triplicate) and all accompanying documents shall be mailed
to:
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
CORPORATION BUREAU
P.O. BOX 8722
HARRISBURG, PA 17105-8722
Part 1. COMPLETE FOR EACH FILING:
Current name of entity or registrant affected by the submittal to which
this statement relates: (survivor or new entity if merger or
consolidation)
The Office Works, Inc.
Entity number, if known: -NOTE: ENTITY NUMBER is the computer index
number assigned to an entity upon
initial filing in the Department of State.
Incorporationlqualification date in Pa.: 08/26/77 State of Incorporation:
Pennsylvania
Federal Identification Number 2 3 - 2 0 5 15 4 3
Specified effective date, if any.
Part II. COMPLETE FOR EACH FILING This statement is being submitted with (check
proper box): x
- Amendment. complete Section A only
X- Merger, Consolidation or Division: complete Section B, C or D
- Consolidation: complete Section C
- Division: complete Section D
- Conversion: complete Section A and E only
- Statement of Correction: complete Section A only
- Statement of Termination: complete Section H
- Statement of Revival., complete Section G
- Dissolution by Shareholders or Incorporators before Commencement of Business:
complete Section F only
Part III. COMPLETE IF APPROPRIATE: The delayed effective date of the
accompanying submittal is:
October 1, 1998
month day year hour, if any
<PAGE>
X Section A. CHANGES TO BE MADE TO THE ENTITY NAMED IN PART 1. (Check box1boxes
which pertain) see Name:
Registered Office:
Number & StreetIRD number & box number city State zip County
see Purpose:
see Stock: aggregate number of shares authorized (attach additional
provisions, if any)
- Term of Existence:
X Other.- Amended and Restated Articles
Section B. MERGER (Complete Section A if any changes to surviving entity):
MERGING ENTITIES ARE: (List only the merging entities-SURVIVOR IS LISTED IN
PART 1)
1. Name:
Entity Number, if known: Inc.lQual. date in Pa.: State of Incorporation:
2. Name:
Entity Number, if known: Inc.lQual. date in Pa.: State of Incorporation:
Attach sheet containing above corporate information if there are additional
merging entities.
-Section C. CONSOLIDATION (NEW entity information should be completed in
Part/. Also, complete and attach DOCKETING STATEMENT DSCB:15-134A
for the NEW entity formed.)
CONSOLIDATING ENTITIES ARE:
1. Name:
Entity Number, if known: Inc.lQual. date in Pa.: State of Incorporation:
2. Name:
Entity Number, if known: Inc.lQual. date in Pa.: State of incorporation:
Attach sheet containing above corporate information if there are additional
consolidating entities.
<PAGE>
Section D. DIVISION (Forming NEW entity(s) named below. Also, complete and
attach DOCKETING STATEMENT DSCB:15-134A for EACH new entity formed
by division.)
1.
Entity Number Name
2.
Entity Number Name
Attach sheet if there are additional entities to be named.
CHECK ONE:
- Entity named in Part / survives. (Any changes, complete Section A)
- Entity named in Part I does not survive.
Section E. CONVERSION (Complete Section A)
CHECK ONE:
- Converted from nonprofit to profit
- Converted from profit to nonprofit
Section F. DISSOLVED BY SHAREHOLDERS OR INCORPORATORS BEFORE COMMENCEMENT OF
BUSINESS
Section G. STATEMENT OF REVIVAL Entity named in Part I hereby revives its
charter or articles which were forfeited by
Proclamation or expired. (Complete Section A
if any changes have been made to the revived
entity.)
Section H. STATEMENT OF TERMINATION
(type of filing made) filed in the Department of State on month date year
hour, if any are hereby terminated.
If merger, consolidation ordivision, list all entities involved, other than
that listed in Part I:
- 1.
Entity Number Name
- 2.
Entity Number Name
Attach sheet containing above information if there are additional entities
involved.
<PAGE>
Addendum
1. US Office Products, Central Pennsylvania District, Inc.
2. From "To buy, sell and distribute furniture and office products and to
have unlimited powef to engage in and to do any lawful act concerning any
and all lawful business for which corporations may be incorporated under
the Business Corporation Law, May 5, 1933, P.L. 364, as amended" to "To
engage in and do any lawful act concerning any and all lawful businesses
for which corporations may be incorporated under the Business Corporation
Law of 1988."
3. Reduction of common stock from 5,000,000 authorized shares of common
stock, $1.00 par value, to 1,000 shares of common stock, without par
value.
I OF I
<PAGE>
EXHIBIT A
---------
AMENDED AND RESTATED
ARTICLES OF INCORPORATION-FOR PROFIT
DSCB:15-1306/2102/2103/2702/2903/7102a (Rev 90)
Indicate type of domestic corporation (check one):
<TABLE>
<S> <C>
X Business-stock (15 Pa. C.S.ss.1306) Management (15 Pa. C.S. Section 2702)
- --- ---
Business-nonstock (15 Pa. C.S.ss.2102) Professional (15 Pa. C.S. Section 2903)
- --- ---
Business-statutory close (15 Pa. C.S.ss.2303) Cooperative (15 Pa. C.S. Section 2903)
- --- ---
</TABLE>
In compliance with the requirements of the applicable provisions of 15
Pa.C.S. (relating to corporations and unincorporated assosciations) the
undersigned, desiring to incorporate a corporation for profit hereby state(s)
that:
1. The name of the corporations is: US Office Products, Central
Pennsylvania District, Inc.
2. The (a) address of the corporations's initial registered office in this
Commonwealth or (b) name of
Its commercial registered office provider and the county of venue is:
(a) 1635 Market Street Philadelphia PA 19103 Philadelphia
-----------------------------------------------------------------
Number and Street City State Zip County
(b) c/o: CT CORPORATION SYSTEM
------------------------------------------------------------
Name of Commercial Registered Office Provider
For a corporation represented by a commercial registered office
provider, the county in (b) shall be deemed the county in which the
corporation is located for venue and official publication purposes.
3. The corporation is incorporated under the provision of the Business
Corporation Law of 1988.
4. The aggregate number of shares authorized is: 1,000 of common stock
without par value
5. The existence of the corporation shall be perpetual.
6. The purpose for which the corporation is organized is to engage in and
do any lawful act concerning any and all lawful businesses for which
corporations may be incorporated under the Business Corporation Law of
1988.
<PAGE>
Exhibit 3.76
US OFFICE PRODUCTS, CENTRAL PENNSYLVANIA DISTRICT, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in the City of
Philadelphia, Commonwealth of Pennsylvania.
Section 2. The corporation may also have offices at such other places
both within and without the Commonwealth of Pennsylvania as the board of
directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. All meetings of the shareholders shall be held at such place
within or without the Commonwealth, as may be from time to time fixed or
determined by the board of directors. One or more shareholders may participate
in a meeting of the shareholders by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting may hear each other.
<PAGE>
Section 2. An annual meeting of the shareholders, commencing with the
year 1999, shall be held in the last week of June at 10:00 A.M.., when they
shall elect by a majority vote a board of directors, and transact such other
business as may properly be brought before the meeting.
Section 3. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called at any time by the president, or a majority of the
board of directors, or the holders of not less than twenty percent of all the
shares issued and outstanding and entitled to vote at the particular meeting,
upon written request delivered to the secretary of the corporation. Such request
shall state the purpose or purposes of the proposed meeting. Upon receipt of any
such request, it shall be the duty of the secretary to call a special meeting of
the shareholders to be held at such time, not more than sixty days thereafter,
as the secretary may fix. If the secretary shall neglect to issue such call, the
person or persons making the request may issue the call.
Section 4. Written notice of every meeting of the shareholders,
specifying the place, date and hour and the general nature of the business of
the meeting, shall be served upon or mailed, postage prepaid, at least five days
prior to the meeting, unless a greater period of notice is required by statute,
to each shareholder entitled to vote thereat.
Section 5. Except as otherwise provided by law the officer having
charge of the transfer books for shares of the corporation shall prepare and
make a complete list of the shareholders entitled to vote at the meeting,
arranged in alphabetical order, with the address and the number of shares held
by each. Such list shall be produced and kept open at the
<PAGE>
time and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting.
Section 6. Business transacted at all special meetings of shareholders
shall be limited to the purposes stated in the notice.
Section 7. The holders of a majority of the issued and outstanding
shares entitled to vote, present in person or represented by proxy, shall be
requisite and shall constitute a quorum at all meetings of the shareholders for
the transaction of business, except as otherwise provided by statute or by the
articles of incorporation or by these by-laws. If, however, any meeting of
shareholders cannot be organized because a quorum has not attended, the
shareholders entitled to vote thereat, present in person or by proxy, shall have
power, except as otherwise provided by statute, to adjourn the meeting to such
time and place as they may determine, but in the case of any meeting called for
the election of directors such meeting may be adjourned only from day to day or
for such longer periods not exceeding fifteen days each as the holders of a
majority of the shares present in person or by proxy shall direct. Those
shareholders entitled to vote who attend a meeting called for the election of
directors that has been previously adjourned for lack of a quorum, although less
than a quorum, shall nevertheless constitute a quorum for the purpose of
electing directors.
Those shareholders entitled to vote who attend a meeting of
shareholders that has been previously adjourned for one or more periods
aggregating at least fifteen days because of an absence of a quorum, although
less than a quorum, shall nevertheless constitute a quorum for the purpose of
acting upon any matter set forth in the notice of the meeting if the notice
states that those shareholders who attend the adjourned meeting shall
<PAGE>
nevertheless constitute a quorum for the purpose of acting upon the matter. At
any adjourned meeting at which a quorum shall be present or represented any
business may be transacted which might have been transacted at the meeting as
originally notified.
Section 8. When a quorum is present or represented at any meeting, the
vote of the holders of a majority of the shares having voting powers, present in
person or represented by proxy, shall decide any question brought before such
meeting, unless the question is one upon which, by express provision of the
statutes or of the articles of incorporation or of these by-laws, a different
vote is required in which case such express provision shall govern and control
the decision of such question.
Section 9. Each shareholder shall at every meeting of the shareholders
be entitled to one vote in person or by proxy for each share having voting power
held by such shareholder. A proxy, unless coupled with an interest, shall be
revocable at will, notwithstanding any other agreement or any provision in the
proxy to the contrary, but the revocation of a proxy shall not be effective
until written notice thereof has been given to the secretary of the corporation.
An unrevoked proxy shall not be valid after three years from the date of its
execution unless a longer time is expressly provided therein. A proxy shall not
be revoked by the death or incapacity of the maker unless, before the vote is
counted or the authority is exercised, written notice of the death or incapacity
is given to the secretary of the corporation.
Section 10. In advance of any meeting of shareholders, the board of
directors may appoint judges of election, who need not be shareholders, to act
at such meeting or any adjournment thereof. If judges of election be not so
appointed, the chairman of any such meeting may and, on the request of any
shareholder or his proxy, shall make such
<PAGE>
appointment at the meeting. The number of judges shall be one or three. If
appointed at a meeting on the request of one or more shareholders or proxies,
the majority of shares present and entitled to vote shall determine whether one
or three judges are to be appointed. No person who is a candidate for office
shall act as a judge. The judges of election shall do all such acts as may be
proper to conduct the election or vote with fairness to all shareholders, and
shall make a written report of any matter determined by them and execute a
certificate of any fact found by them, if requested by the chairman of the
meeting or any shareholder or his proxy. If there be three judges of election
the decision, act or certificate of a majority, shall be effected in all
respects as the decision, act or certificate of all.
Section 11. Any action which may be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders who would
be entitled to vote at a meeting for such purpose and shall be filed with the
secretary of the corporation.
Any action which may be taken at a meeting of the shareholders or of a
class of shareholders may be taken without a meeting, if a consent or consents
in writing to such action, setting forth the action so taken, shall be signed by
shareholders entitled to cast such a percentage of the number of votes which all
such shareholders are entitled to cast thereon as may be authorized in the
articles of incorporation and filed with the secretary of the corporation. Such
action shall not become effective until after at least ten days' written notice
of such action shall have been given to each shareholder of record entitled to
vote thereon who has not consented thereto.
Section 12. In each election for directors, every shareholder entitled
to vote shall have the right to multiply the number of votes to which he may be
entitled by the total
<PAGE>
number of directors to be elected in the same election, and he may cast the
whole number of such votes for one candidate or he may distribute them among any
two or more candidates. The candidates receiving the highest number of votes up
to the number of directors to be elected shall be elected.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be 3. The directors shall be elected at the annual meeting of the
shareholders, except as provided in Section 2 of this article, and each director
shall hold office until his successor is elected and qualified. Directors need
not be shareholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors shall be filled by a majority of
the remaining number of the board, though less than a quorum and each person so
elected shall be a director for the balance of the unexpired term.
Section 3. The business of the corporation shall be managed by its 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 articles of
incorporation or by these by-laws directed or required to be exercised and done
by the shareholders.
<PAGE>
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the Commonwealth of
Pennsylvania.
One or more directors may participate in a meeting of the board or of a
committee of the board by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the shareholders at
the meeting at which such directors were elected and no notice of such meeting
shall be necessary to the newly elected directors in order legally to constitute
the meeting, provided a majority of the whole board shall be present. In the
event of the failure of the shareholders to fix the time or place of such first
meeting of the newly elected board of directors, or in the event such meeting is
not held at the time and place so fixed by the shareholders, the meeting may be
held at such time and place as shall be specified in a notice given as
hereinafter provided for such meetings of the board of directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by resolution of at least a majority of the board at a duly convened
meeting, or by unanimous written consent.
Section 7. Special meetings of the board may be called by the president
on 10 days' notice to each director, either personally or by mail or by
telegram; special meetings shall
<PAGE>
be called by the president or secretary in like manner and on like notice on the
written request of two directors.
Section 8. At all meetings of the board a majority of the directors in
office shall be necessary to constitute a quorum for the transaction of
business, and the acts of a majority of the directors present at a meeting at
which a quorum is present shall be the acts of the board of directors, except as
may be otherwise specifically provided by statute or by the articles of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. If all the directors shall severally or collectively consent
in writing to any action to be taken by the corporation, such action shall be as
valid a corporate action as though it had been authorized at a meeting of the
board of directors.
COMMITTEES
Section 10. The board of directors may, by resolution adopted by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board 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. Any
such committee to the extent provided in such resolution or in these by-laws,
shall have and exercise the authority of the board of directors in the
management of the business and affairs of the corporation except that a
committee shall not have any power or authority as to the following: The
submission to shareholders of
<PAGE>
any action requiring approval of shareholders under this subpart; the creation
or filling of vacancies in the board of directors; the adoption, amendment or
repeal of the bylaws; the amendment or repeal of any resolution of the board
that by its terms is amendable or repealable only by the board; action on
matters committed by the bylaws or resolution of the board of directors to
another committee of the board. In the absence or disqualification of any member
of such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another director to act at the meeting in the
place of any such absent or disqualified member. The committees shall keep
regular minutes of the proceedings and report the same to the board when
required.
COMPENSATION OF DIRECTORS
Section 11. The board of directors shall have the authority to fix the
compensation of directors for their services as directors and a director may be
a salaried officer of the corporation.
ARTICLE IV
NOTICES
Section 1. Notices to directors and shareholders shall be given to the
person either personally or by sending a copy thereof by first class or express
mail, postage prepaid, or by telegram (with messenger service specified), telex
or TWX (with answerback received) or
<PAGE>
courier service, charges prepaid, or by telecopier, to his address (or to his
telex, TWX, telecopier or telephone number) appearing on the books of the
corporation or, in the case of directors, supplied by him to the corporation for
the purpose of notice. If the notice is sent by mail, telegraph or courier
service, it shall be deemed to have been given to the person entitled thereto
when deposited in the United States mail or with a telegraph office or courier
service for delivery to that person or, in the case of telex or TWX, when
dispatched. A notice of meeting shall specify the place, day and hour of the
meeting and any other information required by law. When a meeting of
shareholders is adjourned, it shall not be necessary to give any notice of the
adjourned meeting or of the business to be transacted at an adjourned meeting,
other than by announcement at the meeting at which the adjournment is taken,
unless the board fixes a new record date for the adjourned meeting.
Section 2. Whenever any written notice is required to be given under
the provisions of law or the articles or bylaws, a waiver thereof in writing,
signed by the person or persons entitled to the notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of the notice.
Except as otherwise required by this section, neither the business to be
transacted at, nor the purpose of, a meeting need be specified in the waiver of
notice of the meeting. In the case of a special meeting of shareholders, the
waiver of notice shall specify the general nature of the business to be
transacted. Attendance of a person at any meeting shall constitute a waiver of
notice of the meeting except where a person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting was not lawfully called or convened.
<PAGE>
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a secretary and a treasurer. The
president and secretary shall be natural persons of full age; the treasurer may
be a corporation but, if a natural person, shall be of full age. The board of
directors may also choose vice-presidents and one or more assistant secretaries
and assistant treasurers. Any number of the aforesaid offices may be held by the
same person.
Section 2. The board of directors, immediately after each annual meeting
of shareholders, shall elect a president, who may, but need not be a director,
and the board shall also annually choose a secretary and a treasurer who need
not be members of the board.
Section 3. 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 powers
and perform such duties as shall be determined from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
<PAGE>
Section 6. If required by the board of directors, an officer shall give
the corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
THE PRESIDENT
Section 7. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 8. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 9. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president, and shall perform
<PAGE>
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 10. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the executive committee
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall keep in safe custody
the seal of the corporation and, when authorized by the board of directors,
affix the same to any instrument requiring it and, when so affixed, it shall be
attested by his signature or by the signature of an assistant secretary.
Section 11. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
<PAGE>
THE TREASURER AND ASSISTANT TREASURERS
Section 12. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 13. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE VI
CERTIFICATES OF SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated if so provided for in the by-laws. The
certificates of shares of the
<PAGE>
corporation shall be numbered and registered in a share register as they are
issued. They shall exhibit the name of the registered holder and the number and
class of shares and the series, if any, represented thereby and the par value of
each share or a statement that such shares are without par value as the case may
be. If more than one class of shares is authorized, the certificate shall state
that the corporation will furnish to any shareholder, upon request and without
charge a full or summary statement of the designations, preferences,
limitations, and relative rights of the shares of each class authorized to be
issued, and the variations thereof between the shares of each series, and the
authority of the board of directors to fix and determine the relative rights and
preferences of subsequent series. Within a reasonable time after the issuance or
transfer of uncertificated stock, the corporation shall send to the registered
owner thereof a written notice containing the information required to be set
forth or stated on certificates pursuant to Section 1528 or a statement that the
corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 2. Every share certificate shall be signed by the president or
vice-president and the secretary or an assistant secretary or the treasurer or
an assistant treasurer and shall be sealed with the corporate seal which may be
facsimile, engraved or printed.
Section 3. Where a certificate is signed by a transfer agent or an
assistant transfer agent or a registrar, the signature of any such president,
vice-president, treasurer, assistant treasurer, secretary or assistant secretary
may be facsimile. In case any officer or officers who have signed, or whose
facsimile signature or signatures have been used on, any such
<PAGE>
certificate or certificates shall cease to be such officer or officers of the
corporation, whether because of death, resignation or otherwise, before such
certificate or certificates have been delivered by the corporation, such
certificate or certificates may nevertheless be adopted by the corporation and
be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have been
used thereon had not ceased to be such officer or officers of the corporation.
LOST CERTIFICATES
Section 4. The board of directors shall direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, destroyed or
wrongfully taken, upon the making of an affidavit of that fact by the person
claiming the share certificate to be lost, destroyed or wrongfully taken. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, destroyed or wrongfully taken,
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and give the corporation a bond in such sum
as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate or certificates alleged to have been
lost, destroyed or wrongfully taken.
<PAGE>
TRANSFERS OF SHARES
Section 5. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
CLOSING OF TRANSFER BOOKS
Section 6. The board of directors may fix a time, not more than ninety
days, prior to the date of any meeting of shareholders or the date fixed for the
payment of any dividend or distribution or the date for the allotment of rights
or the date when any change or conversion or exchange of shares will be made or
go into effect, as a record date for the determination of the shareholders
entitled to notice of and to vote at any such meeting or entitled to receive
payment of any such dividend or distribution or to receive any such allotment of
rights or to exercise the rights in respect to any such change, conversion or
exchange of shares. In such case only such shareholders as shall be shareholders
of record on the date so fixed shall be entitled to notice of and to vote at
such meeting or to receive payment of such dividend or to receive such allotment
of rights or to exercise such rights, as the case may be, notwithstanding any
transfer of any shares on the books of the corporation after any record date so
fixed. The board of directors may close the books of the corporation against
transfers of shares during the whole or any part of such period and in such case
written or
<PAGE>
printed notice thereof shall be mailed at least ten days before the closing
thereof to each shareholder of record at the address appearing on the records of
the corporation or supplied by him to the corporation for the purpose of notice.
REGISTERED SHAREHOLDERS
Section 7. The corporation shall be entitled to treat the holder of
record of any share or shares as the holder in fact thereof and shall not be
bound to recognize any equitable or other claim to or interest in such share on
the part of any other person, and shall not be liable for any registration or
transfer of shares which are registered or to be registered in the name of a
fiduciary or the nominee of a fiduciary unless made with actual knowledge that a
fiduciary or nominee of a fiduciary is committing a breach of trust in
requesting such registration or transfer, or with knowledge of such facts that
its participation therein amounts to bad faith.
ARTICLE VII
GENERAL PROVISIONS
DISTRIBUTIONS
Section 1. Distributions upon the shares of the corporation, subject to
the provisions of the articles of incorporation, if any, may be declared by the
board of directors at any regular or special meeting, pursuant to law.
Distributions may be paid in cash, in property, or in its shares, subject to the
provisions of the articles of incorporation.
<PAGE>
Section 2. Before payment of any distributions, there may be set aside
out of any funds of the corporation available for distributions such sum or sums
as the directors from time to time, in their absolute discretion, think proper
as a reserve or reserves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
FINANCIAL REPORT TO SHAREHOLDERS
Section 3. The directors shall cause to be sent to the shareholders,
within 120 days after the close of the fiscal year, a financial statement as of
the closing date of the preceding fiscal year. Such financial statement shall
include a balance sheet as of the close of such year, together with statements
of income and expenses for such year, prepared so as to present fairly the
corporation's financial condition and the results of its operations.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 5. The fiscal year of the corporation shall end on the last
Saturday of April.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Pennsylvania". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed by a
majority vote of the shareholders entitled to vote thereon at any regular or
special meeting duly convened after notice to the shareholders of that purpose
or by a majority vote of the members of the board of directors at any regular or
special meeting duly convened after notice to the directors of that purpose,
subject always to the power of the shareholders to change such action by the
directors.
<PAGE>
Exhibit 3.77
Mail to: Secretary of State For office use only 008
Corporations Section
Please include a typed 1560 Broadway, Suite 200
self-addressed envelope Denver, CO 80202
(303) 894-2251
MUST BY TYPED Fax (303) 894-2242
FILING FEE: $60.00
MUST SUBMIT TWO COPIES
RESTATED ARTICLES OF
INCORPORATION WITH AMENDMENTS
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following amended and restated Articles of
Incorporation. These articles correctly set forth the provisions of the Articles
of Incorporation, as amended, and supersede the original Articles of
Incorporation and all amendments thereto.
FIRST: The name of the corporation is PEAR COMMERCIAL INTERIORS, INC.
SECOND: The following amended and restated Articles of Incorporation were
adopted in the manner marked with an "X" below:
The amended and restated Articles of Incorporation were adopted by
the board of directors where no shares have been issued, or no
shareholder action required.
X The amended and restated Articles of Incorporation were adopted by a
vote of the shareholders. The number of shares voted for the amended
and restated Articles of Incorporation was sufficient for approval.
The amended and restated Articles of Incorporation were adopted by the
incorporators where no shares have been issued or directors elected, or
no shareholder action required.
THIRD: The name of the corporation as amended is PEAR COMMERCIAL INTERIORS,
INC.
ATTACH A COPY OF YOUR AMENDED AND RESTATED ARTICLES OF
INCORPORATION
PEAR COMMERCIAL INTERIORS, INC.
Signature /s/ Kathleen M. Delaney
------------------------------
Kathleen M. Delaney
Title Vice President
Revised 7/95
<PAGE>
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
PEAR COMMERCIAL INTERIORS, INC.
ARTICLE FIRST: The name of the corporation is: PEAR COMMERCIAL
INTERIORS, INC.
ARTICLE SECOND: The existence of the corporation shall be perpetual.
ARTICLE TBIRD- The purpose of the corporation is to engage in any
lawful activity as may from time to time be
authorized by the corporation's board of directors,
which is not prohibited by law or by these Articles
of Incorporation. To undertake such other activities
as the board of directors may deem reasonable or
necessary in the furtherance of the general or
specific purposes and powers of the corporation.
Further, the corporation shall have and may exercise
all rights, powers and privileges now or hereafter
conferred upon corporations organized under the laws
of the State of Colorado and in addition may do
everything necessary, suitable, proper for, or
incident to, the accomplishment of any of those
corporate purposes.
ARTICLE FOURTH: The total shares of capital stock which the
corporation shall have the authority to issue to one
thousand (1,000) shares of common stock, without par
value.
ARTICLE FIFTH: The name of the registered agent and the address of
the registered office is: The Corporation Company,
1675 Broadway, Denver, Colorado 80202.
<PAGE>
Exhibit 3.78
PEAR COMMERCIAL INTERIORS, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in Boulder, Colorado.
Section 2. The corporation may also have offices at such other places
both within and without the State of Colorado as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in the City of Boulder, State of Colorado, at such place as may be
fixed from time to time by the board of directors, or such other place either
within or without the State of Colorado as shall be designated from time to time
by the board of directors and stated in the notice of the meeting.
Section 2. Annual meetings of shareholders, commencing with the year
1999 and shall be held during the last week of June at 10:00 a.m., or such other
date as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Colorado as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president, the board of directors, or the
holders of not less than one-tenth of all the shares entitled to vote at the
meeting.
1
<PAGE>
Section 3. Written or printed notice of a special meeting stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than ten nor more than fifty days
before the date of the meeting, either personally or by mail, by or at the
direction of the president, the secretary, or the officer or persons calling the
meeting, to each shareholder of record entitled to vote at such meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2. If a quorum is present, the affirmative vote of a majority
of the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Section 4. Any action required to be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be three. Directors need not
be residents of the State of Colorado nor shareholders of the corporation. The
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have
2
<PAGE>
been elected and qualified. The first board of directors shall hold office until
the first annual meeting of shareholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the number of directors may be filled by a majority of the directors
then in office, though less than a quorum, and the directors so chosen shall
hold office until the next annual election and until their successors are duly
elected and shall qualify. Also, newly created directorships resulting from any
increase in the number of directors may be filled by election at an annual or at
a special meeting of shareholders called for that purpose.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Colorado, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Colorado.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called on
at least two days' notice to each director, either personally or by mail or by
telegram.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting to the
3
<PAGE>
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 board of directors need be specified in the
notice or waiver of notice of such meeting.
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater number is required by law or by the
articles of incorporation. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
unless the act of a greater number is required by statute or by the articles of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors entitled to
vote with respect to the subject matter thereof.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the by-laws or otherwise, may designate two
or more directors to constitute an executive committee, which committee, to the
extent provided in such resolution, shall have and exercise all of the authority
of the board of directors in the management of the corporation, except s
otherwise required by law. Vacancies in the membership of the committee shall be
filled by the board of directors at a regular or special meeting of the board of
directors. The executive committee shall keep regular minutes of its proceedings
and report the same to the board when required.
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these by-laws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in written , by mail, addressed to such director or
share- holder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposed in the United States mail. Notice to
directors may also be given by telegram.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these by-laws, a waiver
4
<PAGE>
thereof in writing signed by the person or persons entitled to such notice, whet
her before or after the time stated therein, shall be deemed equivalent to the
giving of such notice.
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice- president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
Section 2. The board of directors at its first meeting after each
annual meeting of shareholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member of
the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
5
<PAGE>
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
6
<PAGE>
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates signed by the chairman or vice chairman of the board of directors
or by the president or a vice- president and by the treasurer or an assistant
treasurer or by the secretary or an assistant secretary of the corporation, and
may be sealed with the seal of the corporation or a facsimile thereof.
When the corporation is authorized to issue shares of more than one class
there shall be set forth upon the face or back of the certificate, or the
certificate shall have a statement that the corporation will furnish to any
shareholder upon request and without charge, a full statement of the
designations, preferences, limitations, and relative rights of the shares of
each class authorized to be issued and, if the corporation is authorized to
issue any preferred or special class in series, the variations in the relative
rights and preferences between the shares of each such series so far as the same
have been fixed and determined and the authority of the board of directors to
fix and determine the relative rights and preferences of subsequent series.
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent, or registered by a registrar, other than the corporation itself or an
employee of the corporation. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate there to fore issued by the corporation
alleged to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
7
<PAGE>
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
FIXING THE RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of a shareholder's meeting, to demand a special meeting, to vote or in
order to make a determination of shareholders form any other proper purpose, the
board of directors may provide that the record date be fixed not more than
seventy days before the meeting or action requiring a determination of
shareholders.
LIST OF SHAREHOLDERS
Section 6. The officer or agent having charge of the transfer books for
shares shall make, at least ten days before each meeting of shareholders, a
complete list of the shareholders entitled to vote at such meeting, arranged in
alphabetical order, with the address of each and the number of shares held by
each, which list, for a period of ten days prior to such meeting, shall be kept
on file at the principal office of the corporation and shall be subject to
inspection by any shareholder at any time during usual business hours. Such list
shall also be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any shareholder during the whole time of
the meeting. The original share ledger or transfer book, or a duplicate thereof,
shall be prima facie evidence as to who are the shareholders entitled to examine
such list or share ledger or transfer book or to vote at any meeting of the
shareholders.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of the capital stock, subject to any provisions of the
articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
8
<PAGE>
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be the last
Saturday in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Colorado". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be altered, amended, or repealed or new
by-laws may be adopted by the affirmative vote of a majority of the board of
directors at any regular or special meeting of the board.
9
<PAGE>
Exhibit 3.79
PRICE-MODERN, INC.
ARTICLES OF AMENDMENT AND RESTATEMENT
(Under Section 2-609 of Corporations and Associations Article)
PRICE-MODERN, INC., a Maryland corporation, having its principal office in
Baltimore, Maryland and having The Corporation Trust Incorporated as its
resident agent located at 300 East Lombard Street, Maryland 21202 (hereinafter
called the Corporation), hereby certifies to the State Department of Assessments
and Taxation of Maryland, that:
The charter of the corporation is hereby amended and restated in its
entirety to read as follows:
FIRST: The name of the corporation is Price-Modern, Inc.
SECOND: The purposes for which the corporation is formed are as
follows:
A. To purchase, hold in inventory, and sell, lease or
otherwise transfer office products, furniture and
equipment and to render related products and services.
B. To engage in and perform any activities or functions which
may lawfully be performed by a business corporation
organized under the laws of the State of Maryland.
C. The foregoing enumerated purposes shall be in no way
limited or restricted by reference to, or inference from,
the terms of any other clause of this or any other Article
of the Charter of the Corporation, and they are intended
to be and shall be construed as powers as well as purposes
of the Corporation and shall be in addition to and not in
limitation of the general powers of corporations under the
general laws of the State of Maryland.
THIRD: The post office address of the principal office of the
corporation in Maryland is 2604 Sisson Street, Baltimore,
Maryland 21211.
FOURTH: The name and post office of the registered agent of the
corporation in Maryland are The Corporation Trust
Incorporated, 300 East Lombard Street, Maryland 21202.
FIFTH: The corporation has authority to issue 1,000 shares of common
stock with no par value per share.
SIXTH: The current directors are Mark D. Director, Donald H. Platt
and Milford H. Marchant.
SEVENTH: The number of directors of the corporation shall be (3) which
number may be increased or decreased pursuant to the bylaws of
the corporation, and so long as there are less than
<PAGE>
three (3) stockholders, the number of directors may be less
than three (3) but not less than the number of stockholders.
SECOND: The board of directors of the corporation, by a unanimous
written consent on September 25, 1998, adopted a resolution in
which was set forth the foregoing amendment to the charter,
declaring that the said amendment and restatement of the
charter was advisable and directing that it be submitted for
action thereon by the stockholders.
THIRD: The amendment and restatement of the charter of the
corporation as hereinabove set forth was approved by a consent
in writing setting forth said amendment and restatement of the
charter, signed by all the stockholders entitled to vote on
said amendment, and all the other stockholders entitled to
notice of a meeting of stockholders but not to vote thereat
having waived in writing any rights which they may have to
dissent from such amendment, such consent and waiver having
been filed with the records of stockholders meetings.
FOURTH: The Articles of Amendment and Restatement shall become
effective on the First day of October, 1998.
PRICE-MODERN, INC.
By : /s/ Kathleen M. Delaney
-------------------------------------
Kathleen M. Delaney, Vice President
Attest: (Witness:)
/s/ Mark D. Director
- -------------------------------------
Mark D. Director, Assistant Secretary
<PAGE>
THE UNDERSIGNED, Vice President of PRICE-MODERN, INC., who executed on behalf of
said corporation the foregoing Articles of Amendment and Restatement of Charter,
of which this certificate is made a part, hereby acknowledges, in the name and
on behalf of said corporation, the foregoing Articles of Amendment and
Restatement of Charter to be the corporate act of said corporation and further
certifies that, to the best of his knowledge, information and belief, the
matters and facts set forth therein with respect to the approval thereof are
true in all material respects, under the penalties of perjury.
/s/ Kathleen M. Delaney
- -------------------------------------
Kathleen M. Delaney, Vice President
<PAGE>
Exhibit 3.80
PRICE-MODERN, INC.
* * * * *
AMENDED AND RESTATED
BYLAWS
* * * * *
ARTICLE I
OFFICES
Section 1. The principal office shall be in the City of Baltimore,
State of Maryland.
Section 2. The corporation may also have offices at such other places
both within and without the State of Maryland 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. Meetings of stockholders shall be held at the office of the
corporation in Baltimore, State of Maryland, or at any other place within the
United States as shall be designated from time to time by the board of directors
and stated in the notice of meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1999, shall be held during the month of June at 10:00 a.m., or at such other
date and time as shall be fixed by the Board of Directors and stated in the
notice of the meeting, at which they shall elect a board of directors and may
transact any business within the powers of the corporation. Any business of the
corporation may be transacted at the annual meeting without being specially
designated in the notice, except such business as is specifically required by
statute to be stated in the notice.
Section 3. At any time in the interval between annual meetings special
meetings of the stockholders may be called by the board of directors, or by the
president, a vice-president, the secretary, or an assistant secretary.
Section 4. Special meetings of stockholders shall be called by the
secretary upon the written request of the holders of shares entitled to not less
than twenty-five per cent of all the votes entitled to be cast at such meeting.
Such request shall state the purpose or purposes of such meeting and the matters
proposed to be acted on thereat. The
<PAGE>
secretary shall inform such stockholders of the reasonably estimated cost of
preparing and mailing such notice of the meeting, and upon payment to the
corporation of such costs the secretary shall give notice stating the purpose or
purposes of the meeting to all stockholders entitled to notice at such meeting.
No special meeting need be called upon the request of the holders of shares
entitled to cast less than a majority of all votes entitled to be cast at such
meeting, to consider any matter which is substantially the same as a matter
voted upon at any special meeting of the stockholders held during the preceding
twelve months.
Section 5. Not less than ten nor more than ninety days before the date
of every stockholders' meeting, the secretary shall give to each stockholder
entitled to vote at such meeting, and to each stockholder not entitled to vote
who is entitled by statute to notice, written or printed notice stating the time
and place of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, either by mail or by presenting it to
him personally or by leaving it at his residence or usual place of business. If
mailed, such notice shall be deemed to be given when deposited in the United
States mail addressed to the stockholder at his post-office address as it
appears on the records of the corporation, with postage thereon prepaid.
Section 6. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. At any meeting of stockholders the presence in person or by
proxy of stockholders entitled to cast a majority of the votes thereat shall
constitute a quorum; but this section shall not affect any requirement under the
statute or under the charter for the vote necessary for the adoption of any
measure. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have 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 such adjourned meeting at which a
quorum shall be present or represented any business may be transacted which
might have been transacted at the meeting as originally notified.
Section 8. A majority of the votes cast at a meeting of stockholders,
duly called and at which a quorum is present, shall be sufficient to take or
authorize action upon any matter which may properly come before the meeting,
unless more than a majority of the votes cast is required by the statute or by
the charter.
Section 9. Unless the charter provides otherwise, each outstanding
share of stock having voting power shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders; but no share shall be entitled
to vote if any installment
<PAGE>
payable thereon is overdue and unpaid. A stockholder may vote the shares owned
of record by him either in person or by proxy executed in writing by the
stockholder or by his duly authorized attorney-in-fact. No proxy shall be valid
after eleven months from its date, unless otherwise provided in the proxy. At
all meetings of stockholders, unless the voting is conducted by inspectors, all
questions relating to the qualification of voters and the validity of proxies
and the acceptance or rejection of votes shall be decided by the chairman of the
meeting.
Section 10. Any action required or permitted to be taken at any meeting
of stockholders may be taken without a meeting, if a consent in writing, setting
forth such action, is signed by all the stockholders entitled to vote on the
subject matter thereof and any other stockholders entitled to notice of a
meeting of stockholders but not to vote thereat have waived in writing any
rights which they may have to dissent from such action, and such consent and
waiver are filed with the records of stockholders meetings.
ARTICLE III
DIRECTORS
Section 1. The number of directors of the corporation shall be three.
By vote of a majority of the entire board of directors, the number of directors
fixed by the charter or by these bylaws may be increased or decreased from time
to time not exceeding five nor less than one, but the tenure of office of a
director shall not be affected by any decrease in the number of directors so
made by the board. Until the first annual meeting of stockholders or until
successors are duly elected and qualify, the board shall consist of the persons
named as such in the charter. At the first annual meeting of stockholders and at
each annual meeting thereafter, the stockholders shall elect directors to hold
office until the next annual meeting or until their successors are elected and
qualify. Directors need not be stockholders in the corporation.
Section 2. Any vacancy occurring in the board of directors for any
cause other than by reason of an increase in the number of directors may be
filled by a majority of the remaining members of the board of directors,
although such majority is less than a quorum. Any vacancy occurring by reason of
an increase in the number of directors may be filled by action of a majority of
the entire board of directors. If the stockholders of any class or series are
entitled separately to elect one or more directors, a majority of the remaining
directors elected by that class or series or the sole remaining director elected
by that class or series may fill any vacancy among the number of directors
elected by that class or series. A director elected by the board of directors to
fill a vacancy shall be
<PAGE>
elected to hold office until the next annual meeting of stockholders or until
his successor is elected and qualifies.
Section 3. The business and affairs of the corporation shall be managed
by its board of directors, which may exercise all of the powers of the
corporation, except such as are by law or by the charter or by these bylaws
conferred upon or reserved to the stockholders.
Section 4. At any meeting of stockholders, duly called and at which a
quorum is present, the stockholders may, by the affirmative vote of the holders
of a majority of the votes entitled to be cast thereon, remove any director or
directors from office and may elect a successor or successors to fill any
resulting vacancies for the unexpired terms of removed directors.
MEETINGS OF THE BOARD OF DIRECTORS
Section 5. Meetings of the board of directors, regular or special, may
be held at any place in or out of the State of Maryland as the board may from
time to time determine.
Section 6. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting, and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 7. Regular meetings of the board of directors may be held
without notice at such time and place as shall from time to time be determined
by the board of directors.
Section 8. Special meetings of the board of directors may be called at
any time by the board of directors or the executive committee, if one be
constituted, by vote at a meeting, or by the president or by a majority of the
directors or a majority of the members of the executive committee in writing
with or without a meeting. Special meetings may be held at such place or places
within or without Maryland as may be
<PAGE>
designated from time to time by the board of directors; in the absence of such
designation such meetings shall be held at such places as may be designated in
the call.
Section 9. Notice of the place and time of every special meeting of the
board of directors shall be served on each director or sent to him by telegraph
or by mail, or by leaving the same at his residence or usual place of business
at least 10 days before the date of the meeting. If mailed, such notice shall be
deemed to be given when deposited in the United States mail addressed to the
director at his post-office address as it appears on the records of the
corporation, with postage thereon prepaid.
Section 10. At all meetings of the board a majority of the entire board
of directors shall constitute a quorum for the transaction of business and the
action of a majority of the directors present at any meeting at which a quorum
is present shall be the action of the board of directors unless the concurrence
of a greater proportion is required for such action by statute, the articles of
incorporation or these bylaws. If a quorum shall not be present at any meeting
of directors, the directors present thereat may by a majority vote adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 11. 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 a written consent to such action is signed by all members of the
board or of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the board or committee.
COMMITTEES OF DIRECTORS
Section 12. The board of directors may appoint from among its members
an executive committee and other committees composed of two or more directors,
and may delegate to such committees, any of the powers of the board of directors
except the power to declare dividends or distributions on stock, recommend to
the stockholders any action which requires stockholder approval, amend the
bylaws, approve any merger or share exchange which does not require stockholder
approval or issue stock. However, if the board of directors has given general
authorization for the issuance of stock, a committee of the board, in accordance
with a general formula or method specified by the board of directors by
resolution or by adoption of a stock option plan, may fix the terms of stock
subject to classification or reclassification and the terms on which any stock
may be issued. In the absence of any member of any such committee, the members
thereof present at any meeting, whether or not they constitute a quorum, may
appoint a member of the board of directors to act in the place of such absent
members.
<PAGE>
Section 13. The committees shall keep minutes of their proceedings and
shall report the same to the board of directors at the meeting next succeeding,
and any action by the committees shall be subject to revision and alteration by
the board of directors, provided that no rights of third persons shall be
affected by any such revision or alteration.
COMPENSATION OF DIRECTORS
Section 14. Directors, as such, shall not receive any stated salary for
their services but, by resolution of the board, a fixed sum, and expenses of
attendance if any, may be allowed to directors for attendance at each regular or
special meeting of the board of directors, or of any committee thereof, but
nothing herein contained shall be construed to preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor.
ARTICLE IV
NOTICES
Section 1. Notices to directors and stockholders shall be in writing
and delivered personally or mailed to the directors or stockholders at their
addresses appearing on the books of the corporation. Notice by mail shall be
deemed to be given at the time when the same shall be mailed. In the case of
stockholders' meetings the notice may be left at the stockholders residence or
usual place of business. Notice to directors may also be given by telegram.
Section 2. Whenever any notice of the time, place or purpose of any
meeting of stockholders, directors or committee is required to be given under
the provisions of the statute or under the provisions of the charter or these
bylaws, a waiver thereof in writing, signed by the person or persons entitled to
such notice and filed with the records of the meeting, whether before or after
the holding thereof, or actual attendance at the meeting of stockholders in
person or by proxy, or at the meeting of directors or committee in person, shall
be deemed equivalent to the giving of such notice to such persons.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The
<PAGE>
president shall be selected from among the directors. The board of directors may
also choose additional vice-presidents, and one or more assistant secretaries
and assistant treasurers. Two or more offices, except those of president and
vice-president, may be held by the same person but no officer shall execute,
acknowledge or verify any instrument in more than one capacity, if such
instrument is required by law, the charter or these bylaws to be executed,
acknowledged or verified by two or more officers.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president from among the
directors, and shall choose one or more vice-presidents, a secretary and a
treasurer, none of whom need be a member of the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall serve for one year and
until their successors are chosen and qualify. Any officer or agent may be
removed by the board of directors whenever, in its judgment, the best interests
of the corporation will be served thereby, but such removal shall be without
prejudice to the contractual rights, if any, of the person so removed. If the
office of any officer becomes vacant for any reason, the vacancy shall be filled
by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation; he shall preside at all meetings of the stockholders and directors,
shall have general and active management of the business of the corporation, and
shall see that all orders and resolutions of the board are carried into effect.
Section 7. He shall execute in the corporate name all authorized deeds,
mortgages, bonds, contracts or other instruments requiring a seal, under the
seal of the corporation, except in cases in which the signing or execution
thereof shall be expressly delegated by the board of directors to some other
officer or agent of the corporation.
<PAGE>
VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president, and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall keep in safe custody
the seal of the corporation and, when authorized by the board of directors,
affix the same to any instrument requiring it and, when so affixed, it shall be
attested by his signature or by the signature of an assistant secretary.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of
<PAGE>
directors so requires an account of all his transactions as treasurer and of the
financial condition of the corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board for the faithful performance of the duties of his
office and for the restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control
belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Each stockholder shall be entitled to a certificate or
certificates which shall represent and certify the number and kind and class of
shares owned by him in the corporation. Each certificate shall be signed by the
president or a vice-president and countersigned by the secretary or an assistant
secretary or the treasurer or an assistant treasurer and may be sealed with the
corporate seal.
Section 2. The signatures may be either manual or facsimile signatures
and the seal may be either facsimile or any other form of seal. In case any
officer who has signed any certificate ceases to be an officer of the
corporation before the certificate is issued, the certificate may nevertheless
be issued by the corporation with the same effect as if the officer had not
ceased to be such officer as of the date of its issue. Each stock certificate
shall include on its face the name of the corporation, the name of the
stockholder and the class of stock and number of shares represented by the
certificate. If the corporation has authority to issue stock of more than one
class, the stock certificate shall contain on its face or back a full statement
or summary of the designations and any preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, and
terms and conditions of redemption of the stock of each class which the
corporation is authorized to issue and if the corporation is authorized to issue
any preferred or special class in series, the differences in the relative rights
and preferences between the shares of each series to the extent they have been
set, and the authority of the
<PAGE>
board of directors to set the relative rights and preferences of subsequent
series. A summary of such information included in a registration statement
permitted to become effective under the Federal Securities Act of 1933, as now
or hereafter amended, shall be an acceptable summary for the purposes of this
section. In lieu of such full statement or summary, there may be set forth upon
the face or back of the certificate a statement that the corporation will
furnish to any stockholder upon request and without charge, a full statement of
such information. Every stock certificate representing shares of stock which are
restricted as to transferability by the corporation shall contain a full
statement of the restriction or state that the corporation will furnish
information about the restriction to the stockholder on request and without
charge. A stock certificate may not be issued until the stock represented by it
is fully paid, except in the case of stock purchased under an option plan as
provided by Section 2-207 of the Corporations and Associations Article of
Annotated Code of Maryland.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been stolen, lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be stolen, lost or destroyed. When authorizing such
issue of a new certificate or certificates, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such stolen, lost or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and to give the corporation a bond, with sufficient surety, to the corporation
to indemnify it against any loss or claim which may arise by reason of the
issuance of a new certificate.
TRANSFERS OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
<PAGE>
CLOSING OF TRANSFER BOOKS
Section 5. The board of directors may fix, in advance, a date as the
record date for the purpose of determining stockholders entitled to notice of,
or to vote at, any meeting of stockholders, or stockholders entitled to receive
payment of any dividend or the allotment of any rights, or in order to make a
determination of stockholders for any other proper purpose. Such date, in any
case, shall be not more than sixty days, and in case of a meeting of
stockholders not less than ten days, prior to the date on which the particular
action requiring such determination of stockholders is to be taken. In lieu of
fixing a record date, the board of directors may provide that the stock transfer
books shall be closed for a stated period but not to exceed, in any case, twenty
days. If the stock transfer books are closed for the purpose of determining
stockholders entitled to notice of or to vote at a meeting of stockholders, such
books shall be closed for at least ten days immediately preceding such meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Maryland.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the articles of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in its own shares, subject to the
provisions of the statute and of the articles of incorporation.
<PAGE>
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interests of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The president or a vice-president or the treasurer shall
prepare or cause to be prepared annually a full and correct statement of the
affairs of the corporation, including a balance sheet and a financial statement
of operations for the preceding fiscal year, which shall be submitted at the
annual meeting and shall be filed within twenty days thereafter at the principal
office of the corporation in the State of Maryland.
CHECKS
Section 4. All checks, drafts, and orders for the payment of money,
notes and other evidences of indebtedness, issued in the name of the corporation
shall be signed by such officer or officers as the board of directors may from
time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be the last
Saturday in April.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Maryland." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
STOCK LEDGER
Section 7. The corporation shall maintain at its office in the City of
Washington, District of Columbia, an original stock ledger containing the names
and
<PAGE>
addresses of all stockholders and the number of shares of each class held by
each stockholder. Such stock ledger may be in written form or any other form
capable of being converted into written form within a reasonable time for visual
inspection.
ARTICLE VIII
AMENDMENTS
Section 1. The board of directors shall have the power, at any regular
meeting or at any special meeting if notice thereof be included in the notice of
such special meeting, to alter or repeal any bylaws of the corporation and to
make new bylaws, except that the board of directors shall not alter or repeal
any bylaws made by the stockholders.
Section 2. The stockholders shall have the power, at any annual meeting
or at any special meeting if notice thereof be included in the notice of such
special meeting, to alter or repeal any bylaws of the corporation and to make
new bylaws.
I, THE UNDERSIGNED, being the Assistant Secretary of DO HEREBY CERTIFY
the foregoing to be the by-laws of said corporation, as adopted at a meeting of
the directors held on September 25, 1998.
By:______________________________
Mark D. Director
Assistant Secretary
<PAGE>
Exhibit 3.81
ARTICLES OF AMENDMENT AND RESTATEMENT TO THE CHARTER
CORPORATE CONTROL NUMBER (IF KNOWN): 0104904
PURSUANT TO THE PROVISIONS OF SECTION 48-20-106 OF THE TENNESSEE BUSINESS
CORPORATION ACT, THE UNDERSIGNED CORPORATION ADOPTS THE FOLLOWING ARTICLES OF
AMENDMENT AND RESTATEMENT TO THE ITS CHARTER:
PLEASE MARK THE BLOCK THAT APPLIES:
/ / AMENDMENT IS TO BE EFFECTIVE WHEN FILED BY THE SECRETARY OF STATE.
/ X / AMENDMENT IS TO BE EFFECTIVE ON OCTOBER 1, 1998.
(NOT TO BE LATER THAN THE 90TH DAY AFTER THE DATE THIS DOCUMENT IS FILED.) IF
NEITHER BLOCK IS CHECKED, THE AMENDMENT WILL BE EFFECTIVE AT THE TIME OF FILING.
1. PLEASE INSERT THE NAME OF THE CORPORATION AS IT APPEARS ON
RECORD: RADAR BUSINESS SYSTEMS, INC.
IF CHANGING THE NAME, INSERT NEW NAME BELOW:
US OFFICE PRODUCTS, SOUTH CENTRAL DISTRICT, INC.
2. PLEASE INSERT ANY CHANGES THAT APPLY:
A. PRINCIPAL ADDRESS: N/A
B. REGISTERED AGENT: N/A
C. REGISTERED ADDRESS: N/A
D. OTHER CHANGES: SEE EXHIBIT A ATTACHED HERETO AND MADE
A PART HEREOF
3. THE CORPORATION IS FOR PROFIT.
4. THE MANNER (IF NOT SET IN THE AMENDMENT) FOR IMPLEMENTATION OF ANY
EXCHANGE, RECLASSIFICATION, OR CANCELLATION OF ISSUED SHARES IS AS
FOLLOWS:
UPON THE EFFECTIVENESS OF THIS AMENDMENT, THE 100 SHARES OF COMMON
STOCK, NO PAR VALUE (THE "OLD STOCK") OF THE CORPORATION THAT ARE
ISSUED AND OUTSTANDING SHALL BE
<PAGE>
CONVERTED INTO 1,000 ISSUED SHARES OF COMMON STOCK, NO PAR VALUE, OF THE
CORPORATION (THE "NEW STOCK") ON THE BASIS OF 10 SHARES OF NEW STOCK FOR
EACH SHARE OF OLD STOCK.
UPON THE EFFECTIVENESS OF THIS AMENDMENT, HOLDERS OF THE ISSUED SHARES
OF THE OLD STOCK, UPON SURRENDERING CERTIFICATES EVIDENCING THE ISSUED
SHARES OF OLD STOCK FOR CANCELLATION, SHALL BE ENTITLED TO RECEIVE
CERTIFICATES FOR SHARES OF THE NEW STOCK ON THE BASIS SET FORTH ABOVE.
5. THIS AMENDMENT WAS ADOPTED ON SEPTEMBER 25, 1998.
(NOTE: PLEASE MARK THE BLOCK THAT APPLIES)
/ / THE INCORPORATERS.
/ / THE BOARD OF DIRECTORS WITHOUT SHAREHOLDER APPROVAL, AS SUCH WAS NOT
REQUIRED.
/ X / THE SHAREHOLDERS.
Vice President /s/ Mark D. Director
- ----------------------------- --------------------------------
Signer's Capacity Signature
Mark D. Director
--------------------------------
Name of Signer (Typed or Printed)
<PAGE>
EXHIBIT A
The Articles of Incorporation are amended and restated in their
entirety as follows:
FIRST: The name of the corporation is US OFFICE PRODUCTS, SOUTH CENTRAL
DISTRICT, INC.
SECOND: The number of shares of stock the corporation is authorized to
issue is 1,000 shares of common stock, without par value.
THIRD: The complete address of the corporation's registered office in
Tennessee is 530 Gay Street, Knoxville, TN 37902, and the registered
agent is CT Corporation System.
FOURTH: The corporation is for profit.
FIFTH: The existence of the corporation shall be perpetual.
SIXTH: The purpose for which the corporation is organized is to engage
in any lawful act for which a corporation shall be organized under the
General Corporation Act of the State of Tennessee. This corporation
may, either as principal or agent, and either alone or in conjunction
with other corporations, firms, or individuals, do all and everything
necessary, suitable, convenient or proper, for and in connection with
or incident to the accomplishment of its purposes, or designed directly
or indirectly to promote the interests of this corporation or enhance
the value of its properties; and in general to do any and all things or
exercise any and all powers, rights and privileges which a corporation
may now or hereafter be organized to do or exercise, under the General
Corporation Act of Tennessee, or under any act amendatory thereof,
supplemental thereto, or substituted therefor.
<PAGE>
Exhibit 3.82
US OFFICE PRODUCTS, SOUTH CENTRAL DISTRICT, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section l. The registered office shall be located in Knoxville,
Tennessee.
Section 2. The corporation may also have offices at such other places
both within and without the State of Tennessee as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section l. All meetings of shareholders for the election of directors
shall be held in Nashville, State of Tennessee, at such place as may be fixed
from time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect, by a plurality vote, a board of directors, and transact such other
business as may properly be brought before the meeting.
<PAGE>
Section 3. Written or printed notice of the annual meeting stating the
date, time, and place of the meeting, shall be delivered not less than ten days
nor more than two months before the date of the meeting, either personally or by
mail, by or at the direction of the president, the secretary, or the officer or
persons calling the meeting, to each shareholder of record entitled to vote at
such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section l. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Tennessee as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the charter, may be
called by the president, the board of directors, or upon written demand of at
least ten percent of all of the votes entitled to be cast on any issue proposed
to be considered.
Section 3. Written or printed notice of a special meeting, stating the
date, time, and place of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than ten days nor more than two
months before the date of the meeting, either personally or by mail, by or at
the direction of the president, the secretary, or the officer or persons calling
the meeting, to each shareholder of record entitled to vote at such meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
<PAGE>
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section l. A majority of the votes entitled to be cast on a matter by a
voting group constitutes a quorum of the voting group for action on that matter,
except as otherwise provided by statute or by the charter. If, however, such
quorum shall not be present or represented at any meeting of the shareholders,
the shareholders present in person or represented by proxy shall have 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 such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 2. If a quorum is present, action on a matter by a voting group
is approved if the votes cast within the voting group favoring the action exceed
the votes cast opposing the action, unless the vote of a greater number of
affirmative votes is required by law or the charter.
Section 4. Any action required or permitted to be taken at a meeting of
the shareholders may be taken without a meeting, if one or more written consents
setting forth the action so taken shall be signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section l. The number of directors shall be 3. Unless the charter
otherwise provides, directors need not be residents of the State of Tennessee
nor shareholders of the corporation. The
<PAGE>
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first meeting of shareholders
Section 2. Unless the charter provides otherwise, any vacancy occurring
in the board of directors, including a vacancy resulting from an increase in the
number of directors, may be filled by the shareholders, the board of directors,
or if the directors remaining in office constitute fewer than a quorum of the
board, the vacancy may be filled by the affirmative vote of a majority of the
directors remaining in office.
Section 3. The business affairs of the corporation shall be managed by
its 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, by the charter or by
these by-laws directed or required to be exercised or done by the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Tennessee, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for services to the corporation as directors, officers or
otherwise.
<PAGE>
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section l. Meetings of the board of directors, regular or special, may
be held either within or without the State of Tennessee.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting or it may convene at such place and time as
shall be fixed by the consent in writing of all the directors. No notice of such
meeting shall be necessary to the newly elected directors in order to legally
constitute the meeting, provided a quorum shall be present.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called on
10 days' notice to each director, either personally, by mail or by telegram;
special meetings shall be called by the chairman of the board, the president, or
by any two directors.
Section 5. Attendance or participation of a director at any meeting
shall constitute a waiver of notice of such meeting, unless the director, at the
beginning of the meeting (or promptly upon his arrival), objects to holding the
meeting or transacting business at the meeting and does not thereafter vote for
or assent to action taken at the meeting. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the board of directors
need be specified in the notice or waiver of the notice of such meeting.
<PAGE>
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business, unless a greater number is required by law or by the
charter. The act of a majority of the directors present at any meeting at which
a quorum is present shall be the act of the board of directors, unless the act
of a greater number is required by statute or by the charter. If a quorum shall
not be present at any meeting of directors, the directors present thereat may
adjourn the meeting from time to time until a quorum shall be present. Notice of
such adjournment need not be given, other than by announcement at the time of
the adjournment, provided the meeting is not adjourned for more than one month
at any one time.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if one or more written consents,
setting forth the action so taken, shall be signed by all of the directors
entitled to vote with respect to the subject matter thereof.
ARTICLE VII
COMMITTEES
Section l. The board of directors may create one or more committees that
may consist of one or more members. All members of committees exercising the
powers of the board of directors must be members of the board of directors and
serve at the board of directors' pleasure. To the extent specified by the board
of directors or charter, each committee shall have and exercise all of the
authority of the board of directors in the management of the corporation, except
as otherwise provided by law.
<PAGE>
ARTICLE VIII
NOTICES
Section l. Whenever notice is required to be given to any director or
shareholder, under the provisions of the statutes, the charter or these by-laws,
it shall be construed to mean written notice, which may be by mail, addressed to
such director or shareholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time it is deposited in the United States mail. Notice to directors
may also be given by telegram.
Section 2. Whenever notice is required to be given under the provisions
of the statutes, the charter or these by-laws, a waiver thereof, in writing,
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of such
notice.
ARTICLE IX
OFFICERS
Section l. The officers of the corporation shall be chosen by the board
of directors, and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
Section 2. The board of directors, at its first meeting after each
annual meeting of shareholders, shall choose a president, one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member of
the board.
<PAGE>
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
<PAGE>
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders, and shall record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose, and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the shareholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation, and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring
it, and when so affixed, it may be attested by his signature or by the signature
of such assistant secretary. The board of directors may give general authority
to any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section l0. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary,
<PAGE>
perform the duties and exercise the powers of the secretary, and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities, and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation, and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the board of directors.
Section l2. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section l3. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control, belonging to the corporation.
Section l4. The assistant treasurer or, if there shall be more than one,
the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer, and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
<PAGE>
ARTICLE X
CERTIFICATES FOR SHARES
Section l. The shares of the corporation shall be represented by
certificates or shall be uncertificated. Each share certificate shall be signed
by the president or a vice-president and the secretary or treasurer or an
assistant secretary or treasurer of the corporation, or by the board of
directors, and may be sealed with the seal of the corporation or a facsimile
thereof.
When the corporation is authorized to issue different classes of shares
or different series within a class, there shall be set forth upon the face or
back of the certificate, or the certificate shall have a statement that the
corporation will furnish to any shareholder upon request and without charge, a
full statement of the designations, preferences, limitations, and relative
rights applicable to each class, and the variations in the relative rights,
preferences, and limitations determined for each series and the authority of the
board of directors to fix and determine the relative rights and preferences of
subsequent series.
Section 2. The signatures of the persons signing a share certificate may
be facsimiles. In case any person who has signed, or whose facsimile signature
has been placed upon such certificate, shall have ceased to hold such office
before such certificate is issued, the certificate is nevertheless valid.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation, which
is alleged to have been lost or destroyed.
<PAGE>
When authorizing such issue of a new certificate, the board of directors, in its
discretion and as a condition precedent to the issuance thereof, may prescribe
such terms and conditions as it deems expedient, and may require such
indemnities as it deems adequate, to protect the corporation from any claim that
may be made against it with respect to any such certificate alleged to have been
lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate shall be cancelled and the transaction recorded upon the
books of the corporation.
FIXING RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of, or to vote at, any meeting of shareholders or any adjournment
thereof, or entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors may fix a record date, in advance, that may not be more than seventy
days before the meeting or action requiring a determination of shareholders.
<PAGE>
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize a person,
registered on its books as the owner of shares, as having the exclusive right to
receive dividends and to vote with respect to shares shown to be owned, as being
exclusively liable for calls and assessments upon shares shown to be owned, and
the corporation shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Tennessee.
LIST OF SHAREHOLDERS
Section 7. A list of shareholders as of the record date, certified by
the corporate officer responsible for its preparation or the transfer agent,
shall be open for inspection at any meeting of shareholders. If the right to
vote at any meeting is challenged, the person presiding thereat may rely on such
list as evidence of the right of the persons challenged to vote at such meeting.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section l. Subject to the law and any applicable provisions of the
charter, dividends may be declared by the board of directors at any regular or
special meeting, and may be paid in cash, in property or in shares of the
corporation.
<PAGE>
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends, such sum or sums as the
directors from time to time, in their absolute discretion, think proper, as a
reserve fund to meet contingencies, for equalizing dividends, for repairing or
maintaining any property of the corporation, or for such other purpose as the
directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
CHECKS
Section 3. All checks or demands for money, and notes of the
corporation, shall be signed by such officer or officers, or such other person
or persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday of April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Tennessee". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
<PAGE>
ARTICLE XII
AMENDMENTS
Section l. These by-laws may be amended or repealed, or new by-laws may
be adopted, by the affirmative vote of a majority of the board of directors at
any regular or special meeting of the board unless the charter or law reserve
this power to the shareholders.
<PAGE>
Exhibit 3.83
State of Missouri
Rebecca McDowell Cook, Secretary of State
P.O. Box 778, Jefferson City, Mo. 65102
Corporation Division
Amendment of Articles of Incorporation
(To be submitted in duplicate)
Pursuant to the provisions of The General and Business Corporation Law of
Missouri, the undersigned Corporation certifies the following:
1. The present name of the Corporation is Rainen Business Interiors, Inc.
The name under which it was originally organized was
Rainen Business Interiors, Inc.
2. An amendment to the Corporation's Articles of Incorporation was adopted by
the shareholders on September 25, 1998
3. The Articles of Incorporation are amended as set forth below:
See attached "Amended in Their Entirety Articles of Incorporation"
<PAGE>
4. Of the 1,000 shares outstanding, 1,000 of such shares were entitled to vote
on such amendment. The number of outstanding shares of any class entitled to
vote thereon as a class were as follows:
Class Number of Outstanding Shares
Common Stock 1,000
5. The number of shares voted for and against the amendment was as follows:
Class No. Voted For No. Voted Against
Common Stock 1,000
6. If the amendment changed the number or par value of authorized shares
having a par value, the amount in dollars of authorized shares having a par
value as changed is:
$1
If the amendment changed the number of authorized shares without par
value, the authorized number of shares without par value as changed and
the consideration proposed to be received for such increased authorized
shares without par value as are to be presently issued are:
7. If the amendment provides for an exchange, reclassification, or
cancellation of issued shares, or a reduction of the number of authorized
shares of any class below the number of issued shares of that class, the
following is a statement of the manner in which such reduction shall be
effected:
Upon the effectiveness of this amendment, the 1,000 shares of Common Stock,
par value $1.00 per share of the corporation (the "Old Stock"), that are
issued and outstanding shall be converted into 1,000 issued shares of
Common Stock, no par value per share, of the corporation (the "New Stock"),
on the basis of one share of New Stock for each share of Old Stock. Upon
the effectiveness of this amendment, holders of issued shares of the Old
Stock, upon surrendering certificates evidencing the issued shares of old
Stock for cancellation, shall be entitled to receive certificates for
shares of the New Stock on the basis set forth above.
<PAGE>
IN WITNESS WHEREOF, the undersigned, Kathleen M. Delaney, Vice President has
executed this instrument and its Assistant Secretary, Mark D. Director has
affixed its corporate seal hereto and attested said seal on the 25th day of
September, 1998.
Place
CORPORATE SEAL
Here
(If no seal, state "None.)
Rainen Business Interiors, Inc.
Name of Corporation
ATTEST:
/s/ Mark D. Director /s/ Kathleen M. Delaney
------------------------- By ---------------------------------
Secretary or Assistant Secretary President or Vice President
State of Washington, DC )
) ss.
County of )
I, Scarlett Bates, a Notary Public, do hereby certify that on this 28th day
of September, 1998, personally appeared before me Kathleen M. Delaney and Mark
D. Director who, being by me first duly sworn, declared that (s)he is the Vice
President and Assistant Secretary of Rainen Business Interiors, Inc. that (s)he
signed the foregoing documents as Vice President and Assistant Secretary of the
corporation, and that the statements therein contained are true.
/s/ Scarlett Bates
------------------------------------
Notary Public
My commission expires April 30, 1999
<PAGE>
AMENDED IN THEIR ENTIRETY
ARTICLES OF INCORPORATION
OF
RAINEN BUSINESS INTERIORS, INC.
Rainen Business Interiors, Inc., a corporation organized and existing under the
General and Business Corporation Law of Missouri, hereby amends in its entirety
its Articles of Incorporation in the following manner:
ARTICLE 1: The name of the corporation is Rainen Business Interiors, Inc.
ARTICLE 2: The name of the registered agent in this state is The Corporation
Cormpany, and the address, including street and number, if any of the
corporation's registered office in this state is 120 South Central
Avenue, Clayton, MO 63105.
ARTICLE 3: The aggregate number, class and par value, of shares which the
corporation shall have the authority to issue shall be 1,000 shares
of Common Stock with no par value.
ARTICLE 4: The number of directors to constitute the board of directors shall be
three.
ARTICLE 5: The duration of the corporation is perpetual.
ARTICLE 6: The corporation is formed for the following purposes: to do any and
all things as are necessary, convenient, or proper for, or incidental
to, the attainment of the purposes, objects and purposes of the
corporation, insofar as such acts are permitted to be done by a
corporation organized under the General Corporation Laws of the State
of Missouri, and in general to carry on any other business in
connection therewith otherwise not being forbidden by the laws of the
State of Missouri and with all the powers conferred upon corporations
by the laws of the State of Missouri.
ARTICLE 7: The original incorporator's name and address is as follows:
Phillip A. Kusnetzky
1050 Home Savings Building
Kansas City, MO
<PAGE>
Exhibit 3.84
RAINEN BUSINESS INTERIORS, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in St. Louis,
Missouri.
Section 2. The corporation may also have offices at such other places
both within and without the State of Missouri as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in North Kansas City, State of Missouri, at such place as may be
fixed from time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect by a plurality vote
<PAGE>
a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be delivered not less than ten nor more
than seventy days before the date of the meeting, either personally or by mail,
by or at the direction of the president, or the secretary, or the officer or
persons calling the meeting, to each shareholder of record entitled to vote at
such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Missouri as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the board of directors or by such other person
or persons as may be provided in the articles of incorporation.
Section 3. Written or printed notice of a special meeting stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than ten nor more than seventy
days before the date of the meeting, either personally or by mail, by or at the
direction of the president, or the secretary, or the officer or persons
<PAGE>
calling the meeting, to each shareholder of record entitled to vote at such
meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
<PAGE>
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Unless otherwise provided by the articles of incorporation, each
shareholder in electing directors shall have the right to cast as many votes in
the aggregate as shall equal the number of votes held by him in the corporation
multiplied by the number of directors to be elected at the election, and each
shareholder may cast the whole number of votes, either in person or by proxy,
for one candidate, or distribute them among two or more candidates.
Section 4. Any action required to be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Directors need not be
residents of the State of Missouri nor shareholders of the corporation. The
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
<PAGE>
Section 2. Unless otherwise provided in the articles of incorporation or
these bylaws, any vacancy occurring in the board of directors and any newly
created directorship resulting from any increase in the number of directors to
constitute the board of directors may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole remaining director,
until the next election of directors by the shareholders.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these bylaws directed or required to be exercised or done by
the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Missouri, at such place or places as the directors may from time to time
determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for services to the corporation as directors, officers or
otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Missouri.
<PAGE>
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 10 days' notice to each director, either personally or by mail
or by facsimile telecommunication; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
Section 6. A majority of the full board of directors shall constitute a
quorum for the transaction of business unless a greater number is required by
statute or by the articles of incorporation. The act of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the board of directors, unless the act of a greater number is required by
statute or by the articles of incorporation. If a quorum shall not be
<PAGE>
present at any meeting of directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors, or of the executive committee or any other committee of the
directors, may be taken without a meeting, if a consent in writing, setting
forth the action so taken, shall be signed by all of the members of the board or
of the committee entitled to vote with respect to the subject matter thereof.
Section 8. Unless otherwise restricted by the articles of incorporation
or these bylaws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors or committee by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear each other, and participation in a meeting in this manner shall constitute
presence in person at the meeting.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the bylaws or otherwise, may designate two
or more directors to constitute an executive committee, which committee, to the
extent provided in such resolution, shall have and exercise all of the authority
of the board of directors in the
<PAGE>
management of the corporation, except as otherwise required by law. Vacancies in
the membership of the committee shall be filled by the board of directors at a
regular or special meeting of the board of directors. The executive committee
shall keep regular minutes of its proceedings and report the same to the board
when required.
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these bylaws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by facsimile telecommunication.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these bylaws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
<PAGE>
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
Section 2. The board of directors at its first meeting after each annual
meeting of shareholders shall choose a president, one or more vice-presidents, a
secretary and a treasurer, none of whom need be a member of the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
<PAGE>
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
<PAGE>
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
<PAGE>
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and
<PAGE>
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates signed by the president or a vice-president and the secretary or an
assistant secretary or the treasurer or an assistant treasurer of the
corporation, and sealed with the seal of the corporation or a facsimile thereof.
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as
<PAGE>
it deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
CLOSING OF TRANSFER BOOKS
Section 5. The board of directors shall have power to close the transfer
books of the corporation for a period not exceeding seventy days preceding the
date of any meeting of shareholders or the date for payment of any dividend or
the date for the allotment of rights or the date when any change or conversion
or exchange of shares shall go into effect; provided, however, that in lieu of
closing the transfer books, the board of directors may fix in advance a date,
not exceeding seventy days preceding the date of any meeting of shareholders, or
the date for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of shares shall go
into effect,
<PAGE>
as a record date for the determination of the shareholders entitled to notice
of, and to vote at the meeting, and any adjournment thereof, or entitled to
receive payment of the dividend, or entitled to any such allotment of rights, or
entitled to exercise the rights in respect of the change, conversion or exchange
of shares, and in such case, only the shareholders who are shareholders of
record on the date of closing the transfer books or on the record date so fixed
shall be entitled to notice of, and to vote at, the meeting, and any adjournment
thereof, or to receive payment of the dividend, or to receive the allotment of
rights, or to exercise the rights, as the case may be, notwithstanding any
transfer of any shares on the books of the corporation after the date of closing
of the transfer books or the record date fixed as aforesaid. If the board of
directors does not close the transfer books or set a record date for the
determination of the shareholders entitled to notice of, and to vote at, a
meeting of shareholders, only the shareholders who are shareholders of record at
the close of business on the twentieth day preceding the date of the meeting
shall be entitled to notice of, and to vote at, the meeting, and any adjournment
of the meeting; except that, if prior to the meeting, written waivers of notice
of the meeting are signed and delivered to the corporation by all of the
shareholders of record at the time the meeting is convened, only the
shareholders who are shareholders of record at the time the meeting is convened
shall be entitled to vote at the meeting, and any adjournment of the meeting.
<PAGE>
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Missouri.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the transfer books for
shares shall make, at least ten days before each meeting of shareholders, a
complete list of the shareholders entitled to vote at such meeting, arranged in
alphabetical order, with the address of each and the number of shares held by
each, which list, for a period of ten days prior to such meeting, shall be kept
on file at the registered office of the corporation and shall be subject to
inspection by any shareholder at any time during usual business hours. Such list
shall also be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any shareholder during the whole time of
the meeting. The original share ledger or transfer book, or a duplicate thereof,
shall be prima facie evidence as to who are the shareholders entitled to examine
such list or share ledger or transfer book or to vote at any meeting of the
shareholders.
<PAGE>
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of the capital stock, subject to any provisions of the
articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Missouri". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. If provided by the articles of incorporation, these bylaws
may be altered, amended, or repealed or new bylaws may be adopted by the
affirmative vote of a majority of the board of directors at any regular or
special meeting of the board.
<PAGE>
Exhibit 3.85
Form C- I 00a 1-1-69
RESTATED CERTIFICATE OF INCORPORATION
OF
SAGOT OFFICE INTERIORS, INC.
----------------------------
To: The Secretary of State
State of New Jersey
Pursuant to the provisions of Section 14A:9-5, Corporations, General, of
the New Jersey Statutes, the undersigned corporation hereby executes the
following Restated Certificate of Incorporation:
FIRST: The name of the corporation is SAGOT OFFICE INTERIORS, INC.
SECOND: The purpose or purposes for which the corporation is organized are:
To engage in any activity within the purposes for which corporations may be
organized under N.J.S.A. 14 A:1-1 et seq.
(Use the following if the shares are to consist of one class only.)
THIRD: The aggregate number of shares which the corporation shall have
authority to issue is
1,000 shares of Common Stock without par value.
(Use the following if the shares are divided into classes, or into classes
and series.)
FOURTH- The aggregate number of shares which the corporation shall have
authority to issue is .......................itemized by classes, par value of
shares, shares without par value, and series, if any,
within a class, is:
<TABLE>
<CAPTION>
Class Series Number of Par value per share or statement
(if any) Shares that shares are without par value
<S> <C> <C> <C>
Common None 1,000 None
</TABLE>
<PAGE>
The relative rights, preferences and limitations of the shares of each
class and series (if any), follows:
(If, the shares are, or are to be divided into classes, or into classes and
series, insert a statement of any authority vested in the board of directors to
divide the shares into classes or series, or both, and to determine or change
for any class or series its designation, number or shares, relative rights,
preferences and limitations.)
FIFTH: The address* of the corporation's current registered office is:
820 Bear Tavern Road
(*Include zip code)
West. Trenton, NJ 08628 and the name of its current registered agent at such
address is:
The Corporation Trust Company
SIXTH: The number of directors constituting the current board of directors is 3
The names and addresses of the directors are as follows:
Names Addresses (including zip code)
Mark D. Director 1025 Thomas Jefferson St., NW, Ste. 600 East
Washington, DC 20007
Donald H. Platt 1025 Thomas Jefferson St., NW, Ste. 600 East
Washington, DC 20007
Robert S. Sagot 30 Twosome Drive, Ste. One, Moorestown, NJ
08628
SEVENTH: The duration of the corporation, if other than perpetual, is
perpetual
(Use the following only if an effective date, not later than 30 days
subsequent to the date of filing is desired.)
EIGHTH: The effective date of this Certificate shall be October 1, 1998
Dated this 25th day of September, 1998
SAGOT OFFICE INTERIORS, INC.
(Corporate Name)
By: /s/ Mark D. Director
---------------------
Mark D. Director Vice President
(Type or Print Name and Title)
(*May be executed by the chairman of the board, or the president, or a
vice-president.)
<PAGE>
CERTIFICATE REQUIRED TO BE FILED WITH THE
RESTATED CERTIFICATE OF INCORPORATION
SAGOT OFFICE INTERIORS, INC.
----------------------------
Pursuant to the provisions of Section 14A:9-5(5), Corporations, General, of
the New Jersey Statutes, the undersigned corporation hereby executes the
following certificate:
SAGOT OFFICE INTERIORS, INC.
FIRST: The name of the corporation is ----------------------------
SECOND: The Restated Certificate of Incorporation was adopted on the. 25th
day of September, 1998
(Use the following clause if the Restated Certificate was adopted by the
shareholders.)
THIRD: At the time of the adoption of the Restated Certificate of
Incorporation, the number of shares outstanding was 100. The total of such
shares entitled to vote thereon, and the vote of such shares was:
<TABLE>
<CAPTION>
Total Number of Shares Number of Shares Voted
Entitled to Vote For Against
<S> <C> <C>
100 100 0
</TABLE>
At the time of the adoption of the Restated Certificate of Incorporation,
the number of outstanding shares of each class or series entitled to vote
thereon as a class and the vote of such shares, was: (if inapplicable, insert
"none".)
<TABLE>
<CAPTION>
Class or Series Number of Shares Number of Shares Voted
Entitled to Vote For Against
<S> <C> <C> <C>
Common Stock 100 100 0
</TABLE>
(Use the following if. the Restated Certificate does not amend the
Certificate of Incorporation.)
FOURTH: X This Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the Certificate of
Incorporation of this corporation as heretofore amended or
<PAGE>
supplemented and there is no discrepancy between those provisions and the
provisions of this Restated Certificate of Incorporation.
(Use the following if the Restated Certificate further amends the
Certificate of Incorporation.)
FIFTH: This Restated Certificate of Incorporation restates and integrates
and further amends the Certificate of Incorporation of this corporation by:*
Upon the effectiveness of this amendment, the 100 shares of Common
Stock, no par value per share of the Corporation (the "Old Stock"),
that are issued and outstanding shall be converted into 1,000 issued
shares of Common Stock, no par value per share, of the corporation (the
"New Stock"), on the basis of ten shares of New Stock for each share of
Old Stock. Upon the effectiveness of this amendment, holders of issued
shares of the Old Stock, upon surrendering certificates evidencing the
issued shares of Old Stock for cancellation, shall be entitled to
receive certificates for shares of the New Stock on the basis set forth
above.
(*Insert amendment or amendments adopted. If such amendment is intended to
provide for an exchange, reclassification or cancellation of issued shares,
insert a statement of the manner in which the same shall be effected.)
(Use the following only if an effective date, not later than 30 days
subsequent to the date of filing is is desired.)
SIXTH: The effective date of this amendment shall be October 1, 1998
Dated this 25th day of September, 1998
- --------------------------------------
SAGOT OFFICE INTERIORS, INC.
(Corporate Name)
By: /s/ Mark D. Director
----------------------
Mark D. Director Vice President
(Type or Print Name and Title)
(*May be executed by the chairman of the board, or the president, or a
vice-president.)
<PAGE>
Exhibit 3.86
SAGOT OFFICE INTERIORS, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section l. The registered office shall be located in West Trenton, New
Jersey.
Section 2. The corporation may also have offices at such other places both
within and without the State of New Jersey as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETING OF SHAREHOLDERS
Section l. All meetings of shareholders for the election of directors shall
be held in the City of Moorestown, State of New Jersey, at such place as may be
fixed from time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year 1999,
shall be held in the last week of June at 10:00 a.m., or at such other date and
time as shall be fixed from time to time by the board of directors and stated in
the notice of meeting, at
<PAGE>
which the shareholders shall elect by a plurality vote a board of directors,
and transact such other business as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the time, place, and
purpose or purposes of the meeting shall be delivered not less than ten nor more
than sixty days before the date of the meeting, either personally or by mail, to
each shareholder of record entitled to vote at such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section l. Special meetings of shareholders for any purpose other than the
election of directors may be held at such time and place within or without the
State of New Jersey as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president, the board of directors, or the
holders of not less than 51 percent of all the shares entitled to vote at the
meeting. Special meetings of the shareholders may be called also by the chairman
of the board of directors.
Section 3. Written notice of a special meeting stating the time, place, and
purpose or purposes of the meeting for which the meeting is called, shall be
delivered not less than ten nor more than sixty days before the date of the
meeting, either personally or by mail, by or at the direction of the president,
the secretary, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting.
<PAGE>
Section 4. Business transacted at any special meeting shall be confined to
the purpose or purposes stated in the notice thereof.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section l. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2. If a quorum is present, the affirmative vote of a majority of the
shares of stock represented at the meeting shall be the act of the shareholders
unless the vote of a greater number of shares of stock is required by law or the
certificate of incorporation.
Section 3. Each outstanding share of stock, having voting power, shall be
entitled to one vote on each matter submitted to a vote at a meeting of
shareholders, unless otherwise provided in the certificate of incorporation. A
shareholder may vote either in person or by proxy executed in writing by the
shareholder or by his agent. In all elections for directors
<PAGE>
every shareholder entitled to vote shall have the right to vote, in person or by
proxy, the number of shares of stock owned by him, for as many persons as there
are directors to be elected and for whose election he has a right to vote, or,
if the certificate of incorporation so provides, to cumulate the vote of said
shares, and give one candidate as many votes as the number of directors
multiplied by the aggregate number of his votes shall equal, or to distribute
the votes on the same principle among as many candidates as he may see fit.
Section 4. Subject to statutory provisions, any action required to be taken
at a meeting of the shareholders may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof.
Except as provided in the certificate of incorporation and subject to the
statutory provisions and upon compliance therewith any action required to be
taken at a meeting of shareholders, other than the annual election of directors,
may be taken without a meeting upon the written consent of shareholders who
would have been entitled to cast the minimum number of votes which would be
necessary to authorize such action at a meeting at which all shareholders
entitled to vote thereon were present and voting.
ARTICLE V
DIRECTORS
Section l. The number of directors which shall constitute the whole board of
directors, other than the first board of directors, shall be 3. Directors need
not be residents of the State of New Jersey nor shareholders of the corporation.
The directors, other than the
<PAGE>
first board of directors, shall be elected at the annual meeting of the
shareholders, and each director elected shall serve until the next succeeding
annual meeting and until his successor shall have been elected and qualified.
The first board of directors shall hold office until the first annual meeting of
shareholders.
Section 2. Unless otherwise provided in the certificate of incorporation,
any vacancy occurring in the board of directors may be filled by the affirmative
vote of a majority of the remaining directors though less than a quorum of the
board of directors. A director elected to fill a vacancy shall be elected for
the unexpired portion of the term of his predecessor in office.
Any directorship to be filled by reason of an increase in the number of
directors shall be filled by election at an annual meeting or at a special
meeting of shareholders called for that purpose. A director elected to fill a
newly created directorship shall serve until the next succeeding annual meeting
of shareholders and until his successor shall have been elected and qualified.
Section 3. The business affairs of the corporation shall be managed by its
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 shareholders.
Section 4. The directors may keep the books and records of the corporation,
except such as are required by law to be kept within the state, outside of the
State of New Jersey, at such place or places as they may from time to time
determine.
Section 5. The board of directors, by the affirmative vote of a majority of
the directors then in office, and irrespective of any personal interest of any
of its members, shall
<PAGE>
have authority to establish reasonable compensation of all directors for
services to the corporation as directors, officers or otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section l. Meetings of the board of directors, regular or special, may be
held either within or without the State of New Jersey.
Section 2. The first meeting of each newly elected board of directors shall
be held at such time and place as shall be fixed by the vote of the shareholders
at the annual meeting and no notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting, provided a
quorum shall be present, or it may convene at such place and time as shall be
fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon such
notice, or without notice, and at such time and at such place as shall from time
to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by the
president on 2 days' notice to each director, either personally or by mail or by
telegram; special meetings shall be called by the president or secretary in like
manner and on like notice on the written request of two directors. Notice need
not be given to any director who signs a waiver of notice, whether before or
after the meeting.
Section 5. Attendance of a director at any meeting shall constitute a waiver
of notice of such meeting, except where a director attends for the express
purpose of objecting to the
<PAGE>
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 board of directors need be specified in the
notice or waiver of notice of such meeting.
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater or lesser number is required by statute
or by the certificate of incorporation. The act of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
board of directors, unless the act of a greater or lesser number is required by
statute or by the certificate of incorporation. If a quorum shall not be present
at any meeting of directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 7. Unless otherwise provided by the certificate of
incorporation, any action required to be taken at a meeting of the board, or any
committee thereof, shall be deemed the action of the board of directors or of a
committee thereof, if all directors or committee members, as the case may be,
execute either before or after the action is taken, a written consent thereto,
and the consent is filed with the records of the corporation.
ARTICLE VII
EXECUTIVE COMMITTEE
Section l. The board of directors, by resolution adopted by a majority of
the number of directors fixed by the by-laws or otherwise, may designate one or
more directors to constitute an executive committee, which committee, to the
extent provided in such
<PAGE>
resolution, shall have and exercise all of the authority of the board of
directors in the management of the corporation, except as otherwise required by
law. Vacancies in the membership of the committee shall be filled by the board
of directors at a regular or special meeting of the board of directors. The
executive committee shall keep regular minutes of its proceedings and report the
same to the board when required.
ARTICLE VIII
NOTICES
Section l. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or shareholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or shareholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice whatever is required to be given under the
provisions of the statutes or under the provisions of the certificate of
incorporation or these by-laws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
<PAGE>
ARTICLE IX
OFFICERS
Section l. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
Section 2. The board of directors at its first meeting after each annual
meeting of shareholders shall choose a president, one or more vice-presidents, a
secretary and a treasurer, none of whom need be a member of the board.
Section 3. 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 powers and perform such duties as shall be determined from time to
time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation shall
be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
<PAGE>
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring a
seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of directors
and all meetings of the shareholders and record all the proceedings of the
meetings of the
<PAGE>
corporation and of the board of directors in a book to be kept for that purpose
and shall perform like duties for the standing committees when required. He
shall give, or cause to be given, notice of all meetings of the shareholders and
special meetings of the board of directors, and shall perform such other duties
as may be prescribed by the board of directors or president, under whose
supervision he shall be. He shall have custody of the corporate seal of the
corporation and he, or an assistant secretary, shall have authority to affix the
same to any instrument requiring it and when so affixed, it may be attested by
his signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section l0. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section ll. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
<PAGE>
Section l2. He shall disburse the funds of the corporation as may be ordered
by the board of directors, taking proper vouchers for such disbursements, and
shall render to the president and the board of directors, at its regular
meetings, or when the board of directors so requires, an account of all his
transactions as treasurer and of the financial condition of the corporation.
Section l3. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section l4. The assistant treasurer, or, if there shall be more than one,
the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section l. The shares of the corporation shall be represented by
certificates signed by the chairman or vice-chairman of the board, or the
president or a vice-president and by the treasurer or an assistant treasurer, or
the secretary or an assistant secretary of the
<PAGE>
corporation, and may be sealed with the seal of the corporation or a facsimile
thereof. When the corporation is authorized to issue shares of more than one
class there shall be set forth upon the face or back of the certificate, or the
certificate shall have a statement that the corporation will furnish to any
shareholder upon request and without charge, a full statement of the
designations, preferences, limitations and relative rights of the shares of each
class authorized to be issued and, if the corporation is authorized to issue any
preferred or special class in series, the variations in the relative rights and
preferences between the shares of each such series so far as the same have been
fixed and determined and the authority of the board of directors to fix and
determine the relative rights and preferences of subsequent series.
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent, or registered by a registrar, other than the corporation itself or an
employee of the corporation. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be issued
in place of any certificate theretofore issued by the corporation alleged to
have been lost or destroyed. When authorizing such issue of a new certificate,
the board of directors, in its discretion and as a condition precedent to the
issuance thereof, may prescribe such terms and conditions as
<PAGE>
it deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate representing shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, a new
certificate shall be issued to the person entitled thereto, and the old
certificate cancelled and the transaction recorded upon the books of the
corporation.
CLOSING OF TRANSFER BOOKS
Section 5. For the purpose of determining shareholders entitled to notice of
or to vote at any meeting of shareholders or any adjournment thereof or entitled
to receive payment of any dividend or allotment of any right, or entitled to
give a written consent to any action without a meeting, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors may provide that the stock transfer books shall be closed for a stated
period but not to exceed, in any case, sixty days. If the stock transfer books
shall be closed for the purpose of determining shareholders entitled to notice
of or to vote at a meeting of shareholders, such books shall be closed for at
least ten days immediately preceding such meeting. If the stock transfer book
shall be closed for the purpose of
<PAGE>
determining shareholders entitled to give a written consent to any action
without a meeting, such books may not be closed for more than sixty days before
the date fixed for tabulation of consents or if no date has been fixed for
tabulation, the books may not be closed for more than sixty days before the last
day on which consents received may be counted. In lieu of closing the stock
transfer books, the board of directors may fix in advance a date as the record
date for any such determination of shareholders, such date in any case to be not
more than sixty days and, in case of a meeting of shareholders, not less than
ten days prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken and, in case of determining
shareholders entitled to give a written consent the record date may not be more
than sixty days before the date fixed for tabulation of the consents or if no
date has been fixed for the tabulation, more than sixty days before the last day
on which consents may be counted. If the stock transfer books are not closed and
no record date is fixed, the record date for a shareholders' meeting shall be
the close of business on the day next preceding the day on which notice is
given, or, if no notice is given, the day next preceding the day on which the
meeting is held; and the record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the resolution of
the board relating thereto is adopted. When a determination of shareholders of
record for a shareholders' meeting has been made as provided in this section,
such determination shall apply to any adjournment thereof unless the board fixes
a new record date for the adjourned meeting.
<PAGE>
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of New
Jersey.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the transfer books for
shares shall make and certify a complete list of the shareholders entitled to
vote at a shareholders' meeting, or adjournment thereof, arranged in
alphabetical order within each class, series, or group of shareholders
maintained by the corporation for convenience of reference, with the address of,
and the number of shares held by each shareholder, which list shall be produced
and kept open at the time and place of the meeting and shall be subject to the
inspection of any shareholder during the whole time of the meeting. Such list
shall be prima facie evidence as to who are the shareholders entitled to examine
such list or to vote at any meeting of the shareholders.
<PAGE>
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section l. Subject to the provisions of the certificate of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in its bonds, in its own shares or other property including the shares or bonds
of other corporations subject to any provisions of law and of the certificate of
incorporation.
Section 2. Before payment of any dividend, there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last Saturday
of April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal, New
Jersey". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section l. These by-laws may be altered, amended, or repealed or new by-laws
may be adopted by the affirmative vote of a majority of the board of directors
at any regular or special meeting of the board, subject to any provision in the
certificate of incorporation reserving to the shareholders the power to adopt,
amend, or repeal by-laws, but by-laws made by the board may be altered or
repealed and new by-laws made by the shareholders. The shareholders may
prescribe that any by-law made by them shall not be altered or repealed by the
board.
<PAGE>
Exhibit 3.87
DFI/CCS/Corp
Form 8
WISCONSIN
7196 RESTATED ARTICLES OF INCORPORATION
The following Restated Articles of Incorporation of
SLETTEN VENDING SERVICE, INC.
Corporate name prior to any change effected by this restatement)
duly adopted pursuant to the authority and provisions of Chapter 180 of the
Wisconsin Statutes, supersede and take the place of the existing articles of
incorporation and any amendments thereto:
Article 1. The name of the corporation is SLETTEN VENDING SERVICE, INC.
Article 2. The corporation shall have authority to issue See 1 in Addendum
shares.
Article 3. The street address of the registered office is:
44 East Mifflin Street
(Complete address, includng street and number, if assigned, City, State and
ZIP code, must be stated)
Madison WI 53703
City State zip
Article 4. The name of the registered agent at the above registered office is:
CT Corporation System
Article 5. Other provisions (OPTIONAL)
The purpose of the corporation shall be to engage in any lawful activity
within the purposes for which a corporation may be organized under the
Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin Statutes,
as amended from time to time.
The period of existence of the corporation shall be perpetual.
<PAGE>
CERTIFICATE
This is to certify that the foregoing Restated Articles of Incorporation
A.( Do not contain any amendment requiring shareholder approval, and were
adopted on by the board of directors or incorporators.
OR (date)
B.( X) Contain one or more amendments to the articles of incorporation -
COMPLETE THIS SECTION ONLY IF YOU HAVE MARKED "B" ABOVE
Amendment(s) to the articles or incorporation adopted on September 25, 1998
(date)
Indicate the method of adoption by checking the appropriate choice below:
In accordance with sec. 180.1002, Wis. Stats. (By the Board of
Directors)
OR
In accordance with sec. 180.1003 and 180.1004, Wis. Stats. (By the
Board of Directors and Shareholders)
OR
In accordance with sec. 180.1005, Wis. Stats. (By Incorporators or
Board of Directors, before issuance of shares)
Executed on behalf of the corporation on September 25, 1998
/s/ Mark D. Director
----------------------
(signature)
Mark D. Director
(printed name)
Vice President
(title - see instruction D)
This document was drafted by Colleen Johnson at U.S. Office Products Company
(See instruction E)
FILING FEE - $40.00 OR MORE
SEF REVERSE for Instructions, Suggestions, Filing Fees and Procedures
Printed on Recycled Paper
<PAGE>
RESTATED ARTICLES OF INCORPORATION
Ch. 180 (Stock, for profit)
Colleen D. Johnson *1 Please indicate where you
US Office Products Company would like the acknowledgement
1025 Thomas Jefferson Street, NW, Ste. 600E copy of the filed document sent.
Washington, DC 20007 Please include complete name
mailing address.
Your phone number during the day: ( 202-339-6700)
INSTRUCTIONS (Ref. sec. 180.1007, Wis. Stats. for document content)
Submit one original and one exact copy to Dept. of Financial Institutions,
P.O. Box 7846, Madison, Wisconsin, 53707-7846. (If sent by Express or Priority
U.S. mail, address to 30 W. Mifflin Street, 9th Floor, Madison WI 53703). The
original must include an original manual signature per sec. 180.0120(3)(c), Wis.
Stats. If you have any additional questions, please contact the Division of
Corporate and Consumer Services at (608) 266-3590.
A. Set forth the text of the restated articles.
B. Complete the Certificate to indicate the manner in which the restated
articles were adopted. Use section "A" or "B", and strike out the section
that does not apply.
C. If section "B" is used, provide detail on the manner in which the
amendment(s) were adopted, including the date of adoption for each
amendment, and mark one of the three choices to indicate the method of
adoption.
By Board of Directors - See sec. 180.1002, Wis. Stats. for specific
information on the character of amendments that may be adopted by the Board
of Directors without shareholder action.
By Board of Directors and Shareholders - Amendments proposed by the Board
of Directors and adopted by shareholder approval. Voting requirements
differ with circumstances and provisions in the articles of incorporation.
See sec. 180.1003 and 180.1004, Wis. Stats. for specific information.
By Incorporators or Board of Directors - Before issuance of shares - See
sec. 180.1005, Wis. Stats. for conditions attached to adoption of an
amendment approved by a vote or consent of less than 2/3rds of the shares
subscribed for.
If an amendment provides for an exchange, reclassification or cancellation
of issued shares, state the provisions for implementing the amendment if
not contained in the restatement itself. If an amendment changes the name
of the corporation, state the new name in Article 1 only.
D. Enter the date of execution and the name and title of the person signing
the document. The document must be signed by one on the following: An
officer, an incorporator (if directors have not been elected and no shares
have been issued), or the fiduciary if the corporation is in the hands of a
receiver, trustee, or other court appointed fiduciary. At least one copy
must bear an original manual signature.
E. If the document is executed in Wisconsin, sec. 182.01 (3), Wis. Stats.
provides that it shall not be filed unless the name of the drafter (either
an individual or a governmental agency) is printed in a legible manner. If
document is UQI drafted in Wisconsin, please so state.
FILING FEES Submit the document with a minimum filing fee of $40.00, payable to
DEPT. OF FINANCIAL INSTITUTIONS. If the restatement contains an amendment
causing an increase in the number of authorized shares, provide an additional
fee of 1 cent for each new authorized share. When the document has been filed,
an acknowledgement copy stamped "FILED" will be sent to the address indicated
above.
<PAGE>
Addendum
1. 1,000 shares of common stock, without par value
I OF 1
<PAGE>
Exhibit 3.88
SLETTEN VENDING SERVICE, INC.
* * * *
AMENDED AND RESTATED
B Y - L A W S
* * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in Madison,
Wisconsin.
Section 2. The corporation may also have offices at such other places
both within and without the State of Wisconsin as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in Madison, State of Wisconsin, at such place as may be fixed
from time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they
shall elect, pursuant to law, a board of directors, and transact such other
business as may properly be brought before the meeting.
<PAGE>
Section 3. Written or printed notice of the annual meeting, stating the
date, time, and place of the meeting, shall be delivered not less than ten
(10) days nor more than sixty (60) days before the date of the meeting,
either personally or by mail, by or at the direction of the president, the
secretary, or the officer or persons calling the meeting, to each shareholder
of record entitled to vote at such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or
without the State of Wisconsin as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the charter, may be
called by the president, the board of directors, such other officers or
persons provided in the articles of incorporation, or upon written demand of
at least ten percent (10%) of all of the votes entitled to be cast on any
issue proposed to be considered.
Section 3. Written or printed notice of a special meeting stating the
date, time, and place of the meeting and the purpose or purposes for which
the meeting is called, shall be delivered not less than ten (10) days nor
more than sixty (60) days before the date of the meeting, either personally
or by mail, by or at the direction of the president, the secretary, or the
officer or persons calling the meeting, to each shareholder of record
entitled to vote at such meeting.
<PAGE>
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. A majority of the votes entitled to be cast on a matter by a
voting group constitutes a quorum of the voting group for action on that
matter, except as otherwise provided by statute or by the charter. If,
however, such quorum shall not be present or represented at any meeting of
the shareholders, the shareholders present in person or represented by proxy
shall have 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 such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted
at the meeting as originally notified.
Section 2. If a quorum is present, action on a matter by a voting group
is approved if the votes cast within the voting group favoring the action
exceed the votes cast opposing the action, unless the vote of a greater
number of affirmative votes is required by law or the articles of
incorporation.
Section 3. Each outstanding share, regardless of class, shall be
entitled to one vote on each matter voted on at a meeting of shareholders
unless the articles of incorporation or law provides otherwise. A
shareholder may vote either in person or by proxy as provided for in a signed
appointment form executed by the shareholder or by his duly authorized
attorney-in-fact.
<PAGE>
Section 4. Any action required or permitted to be taken at a meeting of
the shareholders may be taken without a meeting (1) if one or more written
consents setting forth the action so taken shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof, or
(2) if so provided in the articles of incorporation, by persons who would be
entitled to vote at a meeting shares having voting power to cast not less
than the minimum number (or numbers, in the case of voting groups) of votes
that would be necessary to authorize or take the action at a meeting at which
all the shareholders entitled to vote were present and voted.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Unless the articles of
incorporation otherwise provide, directors need not be residents of the State
of Wisconsin nor shareholders of the corporation. The directors, other than
the first board of directors, shall be elected at the annual meeting of the
shareholders, and each director elected shall serve until the next succeeding
annual meeting and until his successor shall have been elected and qualified.
The first board of directors shall hold office until the first meeting of
shareholders.
Section 2. Unless the articles of incorporation provide otherwise, any
vacancy occurring on the board of directors, including a vacancy resulting
from an increase in the number of directors, may be filled by the
shareholders, the board of directors, or if the directors remaining in office
constitute fewer than a quorum of the board, the vacancy may be filled by the
affirmative vote of a majority of the directors remaining in office.
<PAGE>
Section 3. The business affairs of the corporation shall be managed by
its 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, by the articles
of incorporation or by these by-laws directed or required to be exercised or
done by the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State
of Wisconsin, at such place or places as they may from time to time
determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation
of all directors for services to the corporation as directors, officers or
otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Wisconsin.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting or it may convene at such place and time
as shall be fixed by the consent in writing of all the directors. No notice
of such meeting shall be necessary to the newly elected directors in order to
legally constitute the meeting, provided a quorum shall be present.
<PAGE>
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall
from time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called on
10 days' notice to each director, either personally, by mail or by telegram.
Section 5. Attendance or participation of a director at any meeting
shall constitute a waiver of notice of such meeting, unless the director, at
the beginning of the meeting (or promptly upon his arrival), objects to
holding the meeting or transacting business at the meeting, and does not
thereafter vote for or assent to action taken at the meeting. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver
of the notice of such meeting.
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business, unless a greater number is required by law or by the
articles of incorporation. The act of a majority of the directors present at
any meeting at which a quorum is present shall be the act of the board of
directors, unless the act of a greater number is required by statute or by
the articles of incorporation. If a quorum shall not be present at any
meeting of directors, the directors present thereat may adjourn the meeting
from time to time until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if one or more written consents,
setting forth the action so taken, shall be signed by all of the directors
entitled to vote with respect to the subject matter thereof.
<PAGE>
ARTICLE VII
COMMITTEES
Section 1. The board of directors may create two (2) or more committees
that may consist of two (2) or more members of the board. Committee members
shall serve at the board of directors' pleasure. To the extent specified by
the board of directors or articles of incorporation, each committee shall
have and exercise all of the authority of the board of directors in the
management of the corporation, except as otherwise provided by law.
ARTICLE VIII
NOTICES
Section 1. Whenever notice is required to be given to any director or
shareholder under the provisions of the statutes, the articles of
incorporation or these by-laws, it shall be construed to mean written notice,
which may be by mail, addressed to such director or shareholder, at his
address as it appears on the records of the corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time it is
deposited in the United States mail. Notice to directors may also be given
by telegram.
Section 2. Whenever notice is required to be given under the provisions
of the statutes, the articles of incorporation or these by-laws, a waiver
thereof, in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent
to the giving of such notice.
<PAGE>
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors, and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional
vice-presidents, and one or more assistant secretaries and assistant
treasurers
Section 2. The board of directors, at its first meeting after each
annual meeting of shareholders, shall choose a president, one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member
of the board.
Section 3. 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 powers and perform such duties as shall be
determined from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of
the corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board
of directors, shall have general and active
<PAGE>
management of the business of the corporation and shall see that all orders
and resolutions of the board of directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed, and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in
the absence or disability of the president, perform the duties and exercise
the powers of the president and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders, and shall record all the
proceedings of the meetings of the corporation and of the board of directors
in a book to be kept for that purpose, and shall perform like duties for the
standing committees when required. He shall give, or cause to be given,
notice of all meetings of the shareholders and special meetings of the board
of directors, and shall perform such other duties as may be prescribed by the
board of directors or president, under whose supervision he shall be. He
shall have custody of the corporate seal of the corporation, and he, or an
assistant secretary,
<PAGE>
shall have authority to affix the same to any instrument requiring it, and
when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The board of directors may give general authority
to any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors,
shall, in the absence or disability of the secretary, perform the duties and
exercise the powers of the secretary, and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities, and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation, and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the board of
directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors,
at its regular meetings, or when the board of directors so requires, an
account of all his transactions as treasurer and of the financial condition
of the corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of
his
<PAGE>
death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession
or under his control, belonging to the corporation.
Section 14. The assistant treasurer or, if there shall be more than one,
the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer, and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates or shall be uncertificated. Each share certificate shall be
signed by the president or a vice-president and the secretary or treasurer or
an assistant secretary or treasurer of the corporation, or by the board of
directors, and may be sealed with the seal of the corporation or a facsimile
thereof.
When the corporation is authorized to issue different classes of shares
or different series within a class, there shall be set forth upon the face or
back of the certificate, or the certificate shall have a statement that the
corporation will furnish to any shareholder upon request and without charge,
a full statement of the designations, preferences, limitations, and relative
rights applicable to each class, and the variations in the relative rights,
preferences, and limitations determined for each series and the authority of
the board of directors to fix and determine the relative rights and
preferences of subsequent series.
Section 2. The signatures of the persons signing a share certificate may
be facsimiles. In case any person who has signed, or whose facsimile
signature has been placed upon such certificate,
<PAGE>
shall have ceased to hold such office before such certificate is issued, the
certificate is nevertheless valid.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation,
which is alleged to have been lost or destroyed. When authorizing such issue
of a new certificate, the board of directors, in its discretion and as a
condition precedent to the issuance thereof, may prescribe such terms and
conditions as it deems expedient, and may require such indemnities as it
deems adequate, to protect the corporation from any claim that may be made
against it with respect to any such certificate alleged to have been lost or
destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender, to the corporation or the transfer agent of
the corporation, of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto,
and the old certificate shall be cancelled and the transaction recorded upon
the books of the corporation.
<PAGE>
FIXING RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of, or to vote at, any meeting of shareholders, or any adjournment
thereof, or entitled to receive payment of any dividend, or in order to make
a determination of shareholders for any other proper purpose, the board of
directors may fix a record date, in advance, that may not be more than
seventy (70) days before the meeting or action requiring a determination of
shareholders.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize a person,
registered on its books as the owner of shares, as having the exclusive
right to receive dividends and to vote with respect to shares shown to be
owned, and as being exclusively liable for calls and assessments upon shares
shown to be owned, and the corporation shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part
of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Wisconsin.
LIST OF SHAREHOLDERS
Section 7. A list of shareholders as of the record date, prepared in
alphabetical order, arranged by voting group, showing the address of and the
number of shares held by each shareholder, and certified by the corporate
officer responsible for its preparation or the transfer agent, shall be open
for inspection at any meeting of shareholders.
<PAGE>
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the law and any applicable provisions of the
articles of incorporation, dividends may be declared by the board of
directors at any regular or special meeting, and may be paid in cash, in
property or in shares of the corporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends, such sum or sums as the
directors from time to time, in their absolute discretion, think proper, as a
reserve fund to meet contingencies, for equalizing dividends, for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money, and notes of the
corporation, shall be signed by such officer or officers, or such other
person or persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday in April.
<PAGE>
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Wisconsin". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be amended or repealed, or new by-laws may
be adopted, by the affirmative vote of a majority of the board of directors
at any regular or special meeting of the board unless the articles of
incorporation or law reserve this power to the shareholders.
<PAGE>
Exhibit 3.89
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
STURGIS ACQUISITION CORP.
Sturgis Acquisition Corp., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Sturgis Acquisition Corp. and
the name under which the corporation was originally
incorporated is Sturgis Acquisition Corp. The date of filing
of its original Certificate of Incorporation with the
Secretary of State was October 5, 1995.
2. This Amended and Restated Certificate of Incorporation
restates and integrates and further amends the Certificate of
Incorporation of this corporation in its entirety.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended and restated hereby
to read as herein set forth in full:
l. The name of the corporation is STURGIS ACQUISITION CORP.
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation
Law of Delaware and in general, to possess and exercise all
the powers and privileges granted by the General Corporation
Law of Delaware or by any other law of Delaware or by this
Certificate of Incorporation together with any powers
incidental thereto, so far as such powers and privileges are
necessary
<PAGE>
or convenient to the conduct, promotion or attainment of the
business or purposes of the corporation.
4. The total number of shares of stock which the corporation
shall have authority to issue is: One Thousand (1,000) shares
of Common Stock; all of such shares shall be without par
value.
5. The corporation is to have perpetual existence.
6. The corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
7. 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 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 any improper
personal benefit.
4. This Amended and Restated Certificate of Incorporation was
duly adopted by unanimous written consent of the stockholders
in accordance with the applicable provisions of Section 228,
242 and 245 of the General Corporation Law of the State of
Delaware.
5. This Amended and Restated Certificate of Incorporation shall
be effective on October 1, 1998.
<PAGE>
IN WITNESS WHEREOF, said Sturgis Acquisition Corp.. has caused this Amended and
Restated Certificate of Incorporation to be signed by Mark D. Director, its Vice
President, this Twenty-Fifth day of September, 1998.
STURGIS ACQUISITION CORP.
By: /s/ Mark D. Director
---------------------------------
Vice President
<PAGE>
Exhibit 3.90
STURGIS ACQUISITION CORP.
* * * * *
AMENDED AND RESTATED
BY-LAWS
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of El Paso, State of Texas at such place as
may be fixed from time to time by the board of directors, or at such other place
either within or without the State of Delaware as shall be designated from time
to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year1999,
shall be held during the first week of June at 10:00 a.m. or at such other date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than 10 nor more than 60 days before the date of the meeting.
Section 4. 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
<PAGE>
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than 10 nor more than 60 days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have 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 such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. 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 9. When a quorum is present at any meeting, the vote of the holders
of a majority of the stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the
question is one upon which by express provision of the statutes or of the
certificate of incorporation, a different vote is required in which case such
express provision shall govern and control the decision of such question.
<PAGE>
Section 10. 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, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. 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 thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board
shall be 3. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such
<PAGE>
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.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 10 days' notice to each director, either personally or by mail or by
facsimile communication; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors unless the board consists of only one director; in which case special
meetings shall be called by the president or secretary in like manner and on
like notice on the written request of the sole director.
Section 8. At all meetings of the board, a majority of directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be present
at any meeting of the board of directors the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 9. 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 or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
<PAGE>
Section 10. Unless otherwise restricted by the certificate of incorporation
or these by-laws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board 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.
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 the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
General Corporation Law of Delaware to be submitted to stockholders for approval
or (ii) adopting, amending or repealing any by-law of the corporation. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of incorporation
or these by-laws, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
<PAGE>
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of incorporation
or by law, any director or the entire board of directors may be removed, with or
without cause, by the holders of a majority of shares entitled to vote at an
election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by facsimile telecommunication.
Section 2. Whenever any notice is required to be given under the provisions
of the statutes or of the certificate of incorporation or of these by-laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurers. Any number of offices may be held by the same
person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation shall
be fixed by the board of directors.
<PAGE>
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his inability
or refusal to act, the vice-president (or in the event there be more than one
vice-president, the vice-presidents in the order designated by the directors, or
in the absence of any designation, then in the order of their election) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
<PAGE>
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the treasurer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. 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 or vice-chairman of the board of
directors, or the president or a vice-president, and by the treasurer- or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
<PAGE>
Section 2. Any of or all the signatures on a certificate may be 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 were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. 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. A
<PAGE>
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.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting, and
at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be the last Saturday in
April.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new by-laws
may be adopted by the stockholders or by the board of directors, when such power
is conferred upon the board of directors by the certificate of incorporation at
any regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors if notice of
such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
by-laws is conferred upon the board of directors by the certificate of
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
<PAGE>
Exhibit 3.91
<TABLE>
<CAPTION>
<S> <C> <C>
SUE ANNE GILROY
RESTATEMENT OF ARTICLES OF INCORPORATION SECRETARY OF STATE
CORPORATIONS DIVISION
State Form 42152 (RS / 4-95) 302 W. Washington St, Rm. E018
Approved by State Board of Accounts 1995 Indianapolis, IN 46204
INSTRUCTIONS: Use 8 112" x 11" white paper for inserts. Telephone: (317~232-6576
Present original and two (2) copies to
address in upper right Indiana Code
23-1-38-7 comer of this form.
Please TYPE or PRINT FILING FEE IS: $30.00
Upon completion of fifing the Secretary
of State will issue a receipt
</TABLE>
RESTATEMENT OF
ARTICLES OF INCORPORATION
OF
Sweitzer's Offset Services, Inc.
(Name of Corporation)
The above corporation (hereinafter referred to as the "Corporation" existing
pursuant to the Indiana Business Corporation Law, desiring to give notice of
corporate action effectuating the restatement of its Articles of Incorporation.
sets forth the following:
ARTICLE I - RESTATEMENT
SECTION 1: The date of incorporation of the Corporation:
September 29, 1972
SECTION If: The name of the Corporation following this restatement:
Sweitzer's Offset Services, Inc.
SECTION III: The exact test of the Restatement of Articles of Incorporation is
attached as "Exhibit A".
ARTICLE 11 - MANNER OF ADOPTION AND VOTE (Strike inapplicable section)
SECTION 1: <#>The restatement does not contain an amendment requiring
shareholder approval and the board of directors adopted the
restatement.</#>
SECTION III:The restatement contains an amendment requiring shareholder
approval and the vote is set forth below:
/x/ VOTE OF SHAREHOLDERS
The designation (i.e. common, preferred and any classification where
different classes of stock exists), number of outstanding shares,
number of votes entitled to vote separately on the amendment and the
number of votes of each voting group represented at the meeting is
set forth as follows:
<TABLE>
<CAPTION>
TOTAL A B C
<S> <C> <C> <C> <C>
DESIGNATION OF EACH VOTING GROUP Common
Stock
NUMBER OF OUTSTANDING SHARES 100 100
NUMBER OF VOTES ENTITLED TO BE CAST 100 100
NUMBER OF VOTES REPRESENTED AT THE MEETING 100 100
SHARES VOTED IN FAVOR 100 100
SHARES VOTED AGAINST 0
</TABLE>
/ / The number cast for the amendment by each voting group was sufficient
for approval by that voting group.
In Witness Whereof, the undersigned being the Vice President
(Title)
of said Corporation executes this Restatement of Articles of
Incorporation and verifies, subject to penalties of perjury, that the
statements contained herein are true, this 25 th day of September
1998
SIGNATURE PRINTED NAME
/s/ Kathleen M. Delaney Kathleen M. Delaney, Vice President
----------------------------
<PAGE>
EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
SWEITZER'S OFFSET SERVICES, INC.
Sweitzer's Offset Services, Inc. (herein after referred to as the
"Corporation") pursuant to the provisions of the Indiana Business Corporation
Law ("IBCL"), as amended, executes the following Amended and Restated Articles
of Incorporation:
FIRST: The name of the corporation is: Sweitzer's Offset Services, Inc.
SECOND: The address of the registered office of the Corporation in the State of
Indiana is One North Capitol Avenue, 10th Floor, Indianapolis (County of
Marion), Indiana 46204. The name of its registered agent at such address is C T
Corporation System.
THIRD: The purposes of the Corporation are:
A. To purchase, acquire, hold, own, improve, develop, sell,
convey, assign, release, mortgage, encumber, use, lease, hire, manage,
deal in and otherwise dispose of real property and personal property of
every nature, or any interest therein, improved or otherwise; to do
every other act or acts and thing or things incidental to or connected
with the aforesaid; and
B. To engage in, promote, conduct and carry on any lawful
acts or activities for which corporations may be organized under the
IBCL.
FOURTH: The total number of shares of stock which the Corporation shall have
authority to issue is one thousand (1,000) shares of Common Stock with no par
value.
FIFTH: The number of directors of the Corporation shall be three (3). None of
the directors need be a stockholder or a resident of the State of Indiana.
SIXTH: No director shall be liable for any action taken as a director, or any
failure to take any action, unless: (i) the director has breached or failed to
perform the duties of the director's office in compliance with Section 23-1-35-1
of the IBCL; and (ii) the breach or failure to perform constitutes willful
misconduct ore recklessness.
If the IBCL is hereafter amended to authorize the further elimination or
limitation of the liability of a director, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest extent permitted
by the IBCL, as so amended.
Any repeal or modification of the foregoing provisions of this Article SIXTH by
the stockholders of the Corporation shall not adversely affect any right or
protection of the director of the Corporation existing at the time of such
repeal or modification.
<PAGE>
SEVENTH: The Corporation reserves the right to amend, alter, change or repeal
any provisions herein contained, in the manner now or hereafter prescribed by
statute, and all rights, powers, privileges and discretionary authority granted
or conferred herein upon stockholders or directors are granted subject to this
reservation.
IN WITNESS WHEREOF, said Sweitzer's Offset Services, Inc. has caused this
Certificate to be signed by Kathleen M. Delaney, its Vice President, this
Twenty-Fifth day of September, 1998.
SWEITZER'S OFFSET SERVICES, INC.
By: /s/ Kathleen M. Delaney
------------------------------
Vice President
<PAGE>
Exhibit 3.92
US OFFICE PRODUCTS, SWEITZER'S OFFSET SERVICES, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The principal office shall be located in Indianapolis,
Indiana.
Section 2. The corporation may also have offices at such other places
both within and without the State of Indiana as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section l. All meetings of shareholders for the election of directors
shall be held in Indianapolis, State of Indiana, at such place as may be fixed
from time to time by the board of directors, and if no place is stated then at
the principal office.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 a.m., at which they shall
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
<PAGE>
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be given to each shareholder entitled
to vote thereat not less than ten nor more than sixty days before the date of
the meeting, either personally or by mail, by or at the direction of the
president, the secretary, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Indiana as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof. If no place is stated, special meetings
shall be held at the corporation's principal office.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president, the board of directors, or the
holders of at least 25% of all the votes entitled to be cast on any issue
proposed to be considered at the proposed special meeting.
Section 3. Written or printed notice of a special meeting of
shareholders, stating the time, place and purpose or purposes thereof, shall be
given to each shareholder entitled to vote thereat, at least ten and not more
than sixty days before the date fixed for the meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes described in the meeting notice.
<PAGE>
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of A majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders entitled to vote thereat,
present in person or represented by proxy, shall have 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 such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than one hundred and twenty days after
the date fixed for the original meeting, the directors must fix a new record
date and notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting. Once a share is represented for any
purpose at a meeting, it is deemed present for quorum purposes for the remainder
of the meeting and for any adjournment of that meeting unless a new record date
is or must be set for that adjourned meeting.
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
<PAGE>
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Section 4. Any action required to be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. The directors, other than
the first board of directors, shall be elected at the annual meeting of
shareholders, and each director elected shall hold office until his successor is
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the number of directors may be filled by the shareholders, the board
of directors, or a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify. If the
vacant office is filled by the shareholders and was held by a director elected
by a voting group of shareholders, then only the holders of shares of that
voting group are entitled to vote to fill the vacancy.
<PAGE>
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Indiana, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for services to the corporation as directors, officers or
otherwise consistent with the articles of incorporation or by-laws.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Indiana.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
<PAGE>
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Unless the articles of incorporation or these bylaws provide
otherwise, special meetings of the board of directors may be called by the
president on at least 2 days' notice of the time, date and place of meeting to
each director, either personally or by mail or by telegram; special meetings
shall be called by the president or secretary in like manner and on like notice
on the written request of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director at the beginning of
the meeting (or promptly upon his arrival) objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater number is required by law or by the
articles of incorporation. (A quorum of the board of directors may consist of no
fewer than one-third of the fixed or prescribed number of directors. The act of
a majority of the directors present at any meeting at which a quorum is present
shall be the act of the board of directors, unless the act of a greater number
is required by statute or by the articles of incorporation. If a quorum shall
not be present at any meeting of directors, the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
<PAGE>
Section 7. Unless the articles of incorporation or by-laws provide
otherwise, action required or permitted by law to be taken at a board of
directors' meeting may be taken without a meeting if the action is taken by all
members of the board. The action must be evidenced by one or more written
consents describing the action taken, signed by each director, and included in
the minutes or filed with the corporate records reflecting the action taken.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the by-laws or otherwise, may create one or
more committees and appoint members of the board to serve on them. Each
committee may have one or more members, who serve at the pleasure of the board
of directors. Such committee shall have and exercise all of the authority of the
board of directors in the management of the corporation, except as otherwise
required by law. Vacancies in the membership of committee shall be filled by the
board of directors at a regular or special meeting of the board of directors.
The executive committee shall keep regular minutes of its proceedings and report
the same to the board when required.
<PAGE>
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these by-laws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these by-laws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation may be elected or appointed
by the board of directors or by a duly elected or appointed officer if
authorized by the board of directors. A corporation must have at least one
officer. The same individual may simultaneously hold more than one office in a
corporation.
<PAGE>
Section 2. The board of directors at its first meeting after each annual
meeting of shareholders shall choose a president, and one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member of
the board. A corporation must have at least one officer.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors or by an officer authorized by the
board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed with or without cause at any time by the affirmative
vote of a majority of the board of directors. Any vacancy occurring in any
office of the corporation shall be filled by the board of directors or by an
officer authorized by the board of directors. Each officer has the authority and
shall perform the duties as set forth herein or as prescribed by the board of
directors or by direction of an officer authorized by the board of directors to
prescribe the duties of other officers.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active
<PAGE>
management of the business of the corporation and shall see that all orders and
resolutions of the board of directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the share-
<PAGE>
holders and special meetings of the board of directors, and shall perform such
other duties as may be prescribed by the board of directors or president, under
whose supervision he shall be. He shall have custody of the corporate seal of
the corporation and he, or an assistant secretary, shall have authority to affix
the same to any instrument requiring it and when so affixed, it may be attested
by his signature or by the signature of such assistant secretary.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary, or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
<PAGE>
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer, or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation may but need not be represented
by certificates signed (manually or in facsimile) by the president or a
vice-president and the secretary or an assistant secretary of the corporation,
and may be sealed with the seal of the corporation or a facsimile thereof.
If the issuing corporation is authorized to issue different classes of
shares or different series within a class, the designations, relative rights,
preferences, and limitations applicable to each class and the variations in
rights, preferences, and limitations determined for each series (and the
authority of the board of directors to determine variations for future series)
must be summarized on
<PAGE>
the front or back of each certificate. Alternatively, each certificate may state
conspicuously on its front or back that the corporation will furnish the
shareholder this information on request in writing and without charge.
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen, or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
<PAGE>
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
FIXING RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders, or any adjournment thereof,
or entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than seventy
days prior to the meeting or the particular action requiring such determination
of shareholders. If no record date is fixed for the determination of
shareholders entitled to notice of or to vote at a meeting of shareholders, or
shareholders entitled to receive payment of a dividend, the date on which notice
of the meeting is mailed or the date on which the resolution of the board of
directors declaring such dividend is adopted, as the case may be, shall be the
record date for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
<PAGE>
Exhibit 3.93
Form BCA-10.30 AMENDED AND RESTATED
ARTICLES OF AMENDMENT
(Rev. Jan. 1995) File
George H. Ryan SUBMIT IN DUPLICATE
Secretary of State
Department of Business Services This space for use by
Springfield, IL 62756 Secretary of State
Telephone (217) 782-1832
Date
Remit payment in check or money Franchise Tax $
order, payable to "Secretary of State." Filing Fee* $
* The filing fee for articles of Penalty $
amendment - $25.00 Approved:
1. CORPORATENAME: The Systems House, Inc.
(Note 1)
2. MANNER OF ADOPTION OF AMENDMENT:
The following amendment of the Articles of Incorporation was adopted on
September 21, 1998 in the manner indicated below. ("X" one box only)
/ / By a majority of the incorporators, provided no directors were named in the
articles of incorporation and no directors have been elected;
(Note 2)
/ / By a majority of the board of directors, in accordance with Section 10.10,
the corporation having issued no shares as of the time of adoption of this
amendment;
(Note 2)
/ / By a majority of the board of directors, in accordance with Section 10.15,
shares having been issued but shareholder action not being required for the
adoption of the amendment;
(Note 3)
/ / By the Shareholders, in accordance with Section 10.20, a resolution of the
board of directors having been duly adopted and submitted to the
shareholders. At a meeting of shareholders, not less than the minimum
number of votes required by statute and by the articles of incorporation
were voted in favor of the amendment;
(Note 4)
/ / By the shareholders, in accordance with Sections 10.20 and 7.10, a
resolution of the board of directors having been duly adopted and submitted
to the shareholders. A consent in writing has been signed by shareholders
having not less than the minimum number of votes required by statute and by
the articles of incorporation. Shareholders who have not consented in
writing have been given notice in accordance with Section 7. 10;
(Note 4&5)
/X/ By the shareholders, in accordance with Sections 10.20 and 7.10, a
resolution of the board of directors having been duly adopted and submitted
to the shareholders. A consent in writing has been signed by all the
shareholders entitled to vote on this amendment.
(Note 5)
3. TEXT OF AMENDMENT:
a. When amendment effects a name change. insert the new corporate name
below. Use Page 2 for all other amendments.
Article 1: The name of the corporation is:
(NEW NAME)
All changes other than name, include on page 2
(over)
<PAGE>
Text of Amendment
b. (if amendment affects the corporate purpose, the amended purpose is
required to be set forth in its entirety. If there is not sufficient
space to do so, add one or more sheets of this size.)
The Articles of Incorporation are amended & restated in their entirety
as follows:
RESTATED FIRST:The name of the corporation is The Systems House, Inc.
The original date of incorporation was May 29, 1980, and the original
name the corporation was incorporated under was The Auton Corporation.
The name was changed on August 13, 1980 to The First Chicago Clinton
Corporation, and again on October 5, 1990 to the Systems House, Inc.
RESTATED SECOND: The registered agent is C T Corporation System and
the registered office is 208 LaSalle Street, Chicago, IL 60604,
located in Cook County.
AMNEDED AND RESTATED THIRD: The purpose for which the corporation is
organized is for the sale of computer and business machine
programming, software and equipment.
AMENDED AND RESTATED FOURTH: The number of shares authorized by the
corporation is 1,000 shares of Common Stock, with no par value. The
number of issued shares as of September 25, 1998 was 100, and the paid
in capital was $1,010.
AMENDED AND RESTATED FIFTH: The existence of the corporation shall be
perpetual.
Page 2
<PAGE>
4. The manner, if not set fort in Article 3b, in which any exchange,
reclassification or cancellation of issued shares, or a reduction of the
number of authorized shares of any class below the number of issued shares
of that class, provided for or affected by this amendment, is as follows:
(if not applicable, insert "No change")
None
5. (a) The manner, if not set forth in Article 3b, in which said amendment
effects a change in the amount of paid-in capital (Paid-in capital replaces
the terms Stated Capital and Paid-in Surplus and is equal to the total o
these accounts) is as follows: (If not applicable, insert "No change')
No change
(b) The amount of paid-in capital (Paid-in Capital replaces the terms
Stated Capital and Paid-in Surplus and is equal to the total of these
accounts) as changed by this amendment is as follows: (If not applicable,
insert "No change')
No change
<TABLE>
<CAPTION>
Before Amendment After Amendment
<S> <C> <C>
Paid-in Capital $ None $ None
</TABLE>
(Complete either Item 6 or 7 below. All signatures must be in BLACK INK.)
6. The undersigned corporation has caused this statement to be signed by its
duly authorized officers, each of whom affirms, under penalties of perjury,
that the facts stated herein are true.
Dated September 25 1998 The Systems House, Inc.
(Exact Name of Corporation at
date of execution)
attested /s/ Mark D. Director by /s/ Kathleen M. Delaney
-------------------- -----------------------
(Signature of Secretary (Signature of President or
or Assistant Secretary) Vice President)
Mark D. Director, Kathleen M. Delaney,
Assistant Secretary Vice President
(Type or Print Name and Title) (Type or Print Name and Title)
7. If amendment is authorized pursuant to Section 10.10 by the incorporators,
the incorporators must sign below, and type or print name and title.
OR
If amendment is authorized by the directors pursuant to Section 10.10 and
there are no officers, then a majority of the directors or such directors
as may be designated by the board, must sign below, and type or print name
and title.
The undersigned affirms, under the penalties of perjury, that the facts
stated herein are true.
Dated '19
Page 3
<PAGE>
NOTES and INSTRUCTIONS
NOTE 1: State the true exact corporate name as it appears on the records of the
office of the Secretary of State, BEFORE any amendments herein reported.
NOTE 2: Incorporators are permitted to adopt amendments ONLY before any shares
have been issued and before any directors have been named or elected.
(Section 10.10)
NOTE 3: Directors may adopt amendments without shareholder approval in only
seven instances, as follows:
(a) to remove the names and addresses of directors named in the articles of
incorporation;
(b) to remove the name and address of the initial registered agent and
registered office, provided a statement pursuant to Section 5.10 is also
filed;
(c) to increase, decrease, create or eliminate the par value of the shares of
any class, so long as no class or series of shares is adversely affected.
(d) to split the issued whole shares and unissued authorized shares by
multiplying them by a whole number, so long as no class or series is
adversely affected thereby;
(e) to change the corporate name by substituting the word "corporation",
"incorporated", "company", "limited", or the abbreviation "corp ...inc
..co.",or "ltd." for a similar word or abbreviation in the name, or by
adding a geographical attribution to the name;
(f) to reduce the authorized shares of any class pursuant to a cancellation
statement filed in accordance with Section 9.05,
(g) to restate the articles of incorporation as currently amended. (Section
10.15)
NOTE 4: All amendments not adopted under Section 10.10 or Section 10.15 require
(1) that the board of directors adopt a resolution setting forth the
proposed amendment and (2) that the shareholders approve the amendment.
Shareholder approval may be (1) by vote at a shareholders' meeting
(either annual or special) or (2) by consent, in writing, without a
meeting.
To be adopted, the amendment must receive the affirmative vote or
consent of the holders of at least 2/3 of the outstanding shares
entitled to vote on the amendment (but if class voting applies, then
also at least a 2~3 vote within each class is required).
The articles of incorporation may supercede the 2/3 vote requirement
by specifying any smaller or larger vote requirement not less than a
majority of the outstanding shares entitled to vote and not less than
a majority within each class when class voting applies.
(Section 10.20)
NOTE 5: When shareholder approval is by consent, all shareholders must be given
notice of the proposed amendment at least 5 days before the consent is
signed. If the amendment is adopted, shareholders who have not signed
the consent must be promptly notified of the passage of the amendment.
(Sections 7.10 & 10.20)
PAGE 4
<PAGE>
Exhibit 3.94
THE SYSTEMS HOUSE, INC.
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in Chicago, Illinois.
Section 2. The corporation may also have offices at such other places
both within and without the State of Illinois as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in Rosemont, State of Illinois, at such place as may be fixed from
time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00A.M., at which they shall
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
<PAGE>
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be delivered not less than ten nor more
than sixty days before the date of the meeting, either personally or by mail, by
or at the direction of the president, or the secretary, or the officer or
persons calling the meeting, to each shareholder of record entitled to vote at
such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Illinois as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by law or by the articles of
incorporation, may be called by the president, the board of directors, or the
holders of not less than one-fifth of all the shares entitled to vote at the
meeting.
Section 3. Written or printed notice of a special meeting stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than ten nor more than sixty days
before the date of the meeting, either personally or by mail, by or at the
direction of the president, or the secretary, or the officer or persons calling
the meeting, to each shareholder of record entitled to vote at such meeting.
<PAGE>
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by law or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2. If a quorum is present, the affirmative vote of a majority
of the shares of stock represented at the meeting and entitled to vote on the
matter shall be the act of the shareholders unless the vote of a greater number
of shares of stock is required by law or the articles of incorporation.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in
<PAGE>
person or by proxy executed in writing by the shareholder or by his duly
authorized attorney-in-fact.
Section 4. Unless otherwise provided in the articles of incorporation or
bylaw, any action required to be taken at any annual or special meeting of the
shareholders, or any other action which may be taken at a meeting of the
shareholders, may be taken without a meeting and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed (i) if five days
prior notice of the proposed action is given in writing to all of the
shareholders entitled to vote with respect to the subject matter thereof, by the
holders of outstanding shares 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 voting or (ii) by all of
the shareholders entitled to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be3. The directors, other than
the first board of directors, shall be elected at the annual meeting of the
shareholders, and each director elected shall serve until the next succeeding
annual meeting and until his successor shall have been elected and qualified.
The first board of directors shall hold office until the first annual meeting of
shareholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the number of directors may be filled by election at an annual
meeting or at a special meeting of shareholders
<PAGE>
called for that purpose. A majority of directors then in office, though less
than a quorum, may fill one or more vacancies in the board of directors arising
between meetings of shareholders by reason of an increase in the number of
directors or otherwise. A director appointed to fill a vacancy, or a newly
created directorship, shall hold office until the next succeeding annual meeting
of shareholders and until his successor shall have been elected and qualified.
Section 3. The business affairs of the corporation shall be managed by
its board of directors which may exercise all such powers of the corporation and
do all such lawful acts and things as are not by law or by the articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Illinois, at such place or places as the directors may from time to time
determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation of
all directors for services to the corporation as directors, officers or
otherwise.
<PAGE>
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Illinois.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 2 days' notice to each director, either personally or by mail
or by facsimile telecommunication; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
<PAGE>
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater number is required by the articles of
incorporation. The act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the board of directors, unless the
act of a greater number is required by the articles of incorporation. If a
quorum shall not be present at any meeting of directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 7. Unless specifically prohibited by the articles of
incorporation or these by-laws, any action required to be taken at a meeting of
the board of directors, or any other action which may be taken at a meeting of
the board of directors or a committee thereof, may be taken without a meeting if
a consent in writing, setting forth the action so taken, shall be signed by all
of the directors entitled to vote with respect to the subject matter thereof, or
by all the members of such committee, as the case may be.
ARTICLE VII
COMMITTEES OF DIRECTORS
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors may create one or more committees and appoint members
of the board to serve on the committee or committees. To the extent provided in
such resolution of the articles of incorporation, each committee shall have and
exercise all of the authority of the board of directors in the management of the
corporation, except as otherwise required by law. Each committee shall have
<PAGE>
two or more members, who serve at the pleasure of the board. The committees
shall keep regular minutes of its proceedings and report the same to the board
when required.
ARTICLE VIII
NOTICES
Section 1. Whenever, by law or under the provisions of the articles of
incorporation or of these by-laws, notice is required to be given to any
director or shareholder, it shall not be construed to mean personal notice, but
such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by facsimile telecommunication.
Section 2. Whenever any notice whatever is required to be given by law
or under the provisions of the articles of incorporation or these by-laws, a
waiver thereof in writing signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
<PAGE>
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
Section 2. The board of directors at its first meeting after each annual
meeting of shareholders shall choose a president, one or more vice-presidents, a
secretary and a treasurer, none of whom need be a member of the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
<PAGE>
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the
<PAGE>
board of directors in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. He shall give, or cause to be
given, notice of all meetings of the shareholders and special meetings of the
board of directors, and shall perform such other duties as may be prescribed by
the board of directors or president, under whose supervision he shall be. He
shall have custody of the corporate seal of the corporation and he, or an
assistant secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The board of directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the
<PAGE>
board of directors, at its regular meetings, or when the board of directors so
requires, an account of all his transactions as treasurer and of the financial
condition of the corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by the
president or a vice-president and the secretary or an assistant secretary of the
corporation, and may be sealed with the seal of the corporation or a facsimile
thereof.
When the corporation is authorized to issue shares of more than one
class there shall be set forth upon the face or back of the certificate, or the
certificate shall have a statement that the corporation will furnish to any
shareholder upon request and without charge, a full summary or
<PAGE>
statement of the designations, preferences, limitations, and relative rights of
the shares of each class authorized to be issued and, if the corporation is
authorized to issue any preferred or special class in series, the variations in
the relative rights and preferences between the shares of each such series so
far as the same have been fixed and determined and the authority of the board of
directors to fix and determine the relative rights and preferences of subsequent
series.
Within a reasonable time after the issuance or transfer of
uncertificated shares, the corporation shall send to the registered owner
thereof a written notice containing the information required by law to be set
forth or stated on certificates.
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent, registrar, other than the corporation itself or an employee of the
corporation. In case any officer who has signed or whose facsimile signature has
been placed upon such certificate shall have ceased to be such officer before
such certificate is issued, it may be issued by the corporation with the same
effect as if he were such officer at the date of its issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim
<PAGE>
that may be made against it with respect to any such certificate alleged to have
been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
CLOSING OF TRANSFER BOOKS
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders, or shareholders entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the board of directors of a
corporation may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than sixty
days and, for a meeting of shareholders, not less than ten days, or in the case
of a merger, consolidation, share exchange, dissolution or sale, lease or
exchange of assets, not less than twenty days, immediately preceding such
meeting. If no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the board of directors
declaring such
<PAGE>
dividend is adopted, as the case may be, shall be the record date for such
determination of shareholders. When a determination of shareholders entitled to
vote at any meeting of shareholders has been made as herein provided, such
determination shall apply to any adjournment thereof.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Illinois.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the transfer books for
shares shall make, within twenty days after the record date for a meeting of
shareholders or ten days before such meeting, whichever is earlier, a complete
list of the shareholders entitled to vote at such meeting, arranged in
alphabetical order, with the address of each and the number of shares held by
each, which list, for a period of ten days prior to such meeting, shall be kept
on file at the registered office of the corporation and shall be subject to
inspection by any shareholder at any time during usual business hours. Such list
shall also be produced and kept open at the time and place of the meeting
<PAGE>
and shall be subject to the inspection of any shareholder during the whole time
of the meeting. The original share ledger or transfer book, or a duplicate
thereof, shall be prima facie evidence as to who are the shareholders entitled
to examine such list or share ledger or transfer book or to vote at any meeting
of the shareholders.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of the capital stock, subject to any provisions of the
articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE>
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday of April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Illinois". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed by the
shareholders or the board of directors, but no by-law adopted by the
shareholders may be altered, amended or repealed by the board of directors if
the by-laws so provide.
<PAGE>
Exhibit 3.95
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
U.S. OFFICE FURNITURE, INC.
U.S. OFFICE FURNITURE, INC., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is U.S. OFFICE FURNITURE, INC. and
the name under which the corporation was originally
incorporated is CAPITOL COFFEE HOLDINGS CORP. The date of
filing of its original Certificate of Incorporation with the
Secretary of State was June 21, 1996.
2. This Amended and Restated Certificate of Incorporation
restates and integrates and further amends the Certificate of
Incorporation of this corporation in its entirety.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended and restated hereby
to read as herein set forth in full:
l. The name of the corporation is US OFFICE FURNITURE, INC.
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation
Law of Delaware and in general, to possess and exercise all
the powers and privileges granted by the General Corporation
Law of Delaware or by any other law of Delaware or by this
Certificate of Incorporation together with any powers
incidental thereto, so far as such powers and privileges are
necessary
<PAGE>
or convenient to the conduct, promotion or attainment of the
business or purposes of the corporation.
4. The total number of shares of stock which the corporation
shall have authority to issue is: One Thousand (1,000) shares
of Common Stock; all of such shares shall be without par
value.
5. The corporation is to have perpetual existence.
6. The corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
7. 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 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 any improper
personal benefit.
4. This Amended and Restated Certificate of Incorporation was duly
adopted by unanimous written consent of the stockholders in accordance
with the applicable provisions of Section 228, 242 and 245 of the
General Corporation Law of the State of Delaware.
5. This Amended and Restated Certificate of Incorporation shall be
effective on October 1, 1998.
<PAGE>
IN WITNESS WHEREOF, said U.S. Office Furniture, Inc. has caused this Amended and
Restated Certificate of Incorporation to be signed by Mark D. Director, its Vice
President, this Twenty-Fifth day of September, 1998.
U.S. OFFICE FURNITURE, INC.
By: /s/ Mark D. Director
------------------------
Vice President
<PAGE>
Exhibit 3.96
US OFFICE FURNITURE, INC.
* * * * *
AMENDED AND RESTATED
BY-LAWS
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Washington, District of Columbia at
such place as may be fixed from time to time by the board of directors, or at
such other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the
notice of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of Delaware, as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
Section 2. Annual meetings of stockholders, commencing with the
year1999, shall be held during the first week of June at 10:00 a.m. or at
such other date and time as shall be designated from time to time by the
board of directors and stated in the notice of the meeting, at which they
shall elect by a plurality vote a board of directors, and transact such other
business as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than 10 nor more than 60 days before the date of the
meeting.
Section 4. 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
<PAGE>
address of each stockholder and the number of shares registered in the name
of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board
of directors, or at the request in writing of stockholders owning a majority
in amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than 10 nor more than 60 days before the date
of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present
or represented at any meeting of the stockholders, the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have 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 such adjourned meeting at which a quorum shall be present or represented
any business may be transacted which might have been transacted at the
meeting as originally notified. 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 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or
of the certificate of incorporation, a different vote is required in which
case such express provision shall govern and control the decision of such
question.
<PAGE>
Section 10. 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, but no proxy shall be
voted on after three years from its date, unless the proxy provides for a
longer period.
Section 11. 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 thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented
in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be 3. The directors shall be elected at the annual meeting of
the stockholders, except as provided in Section 2 of this Article, and each
director elected shall hold office until his successor is elected and
qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the
next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then
an election of directors may be held in the manner provided by statute. If,
at the time of filling any vacancy or any newly created directorship, the
directors then in office shall constitute less than a majority of the whole
board (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least ten percent of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to
be held to fill any such vacancies or newly created directorships, or to
replace the directors chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such
<PAGE>
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.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of
the stockholders to fix the time or place of such first meeting of the newly
elected board of directors, or in the event such meeting is not held at the
time and place so fixed by the stockholders, the meeting may be held at such
time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 10 days' notice to each director, either personally or by mail or by
facsimile communication; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors unless the board consists of only one director; in which case
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of the sole director.
Section 8. At all meetings of the board, a majority of directors shall
constitute a quorum for the transaction of business and the act of a majority
of the directors present at any meeting at which there is a quorum shall be
the act of the board of directors, except as may be otherwise specifically
provided by statute or by the certificate of incorporation. If a quorum shall
not be present at any meeting of the board of directors the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. 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 or of any committee thereof may be
taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the board or committee.
<PAGE>
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting
of the board of directors, or any 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 such participation in a
meeting shall constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The board 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.
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 the
power or authority in reference to the following matters: (i) approving or
adopting, or recommending to the stockholders, any action or matter expressly
required by the General Corporation Law of Delaware to be submitted to
stockholders for approval or (ii) adopting, amending or repealing any by-law
of the corporation. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the
board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the
authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the board of
directors and may be paid a fixed sum for attendance at each meeting of the
board of directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee meetings.
<PAGE>
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares
entitled to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to
be given to any director or stockholder, it shall not be construed to
mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears
on the records of the corporation, with postage thereon prepaid, and such
notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be
given by facsimile telecommunication.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of
incorporation or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurers. Any number of offices may be
held by the same person, unless the certificate of incorporation or these
by-laws otherwise provide.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
<PAGE>
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of
a majority of the board of directors. Any vacancy occurring in any office of
the corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of
the corporation, shall preside at all meetings of the stockholders and
the board of directors, shall have general and active management of the
business of the corporation and shall see that all orders and resolutions
of the board of directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be
more than one vice-president, the vice-presidents in the order designated by
the directors, or in the absence of any designation, then in the order of
their election) shall perform the duties of the president, and when so
acting, shall have all the powers of and be subject to all the restrictions
upon the president. The vice-presidents shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings
of the meetings of the corporation and of the board of directors in a book to
be kept for that purpose and shall perform like duties for the standing
committees when required. He shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the board of directors,
and shall perform such other duties as may be prescribed by the board of
directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring
it and when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The board of directors may give
general authority to any other officer to affix the seal of the corporation
and to attest the affixing by his signature.
<PAGE>
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election)
shall, in the absence of the secretary or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the secretary
and shall perform such other duties and have such other powers as the board
of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the board of
directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors,
at its regular meetings, or when the board of directors so requires, an
account of all his transactions as treasurer and of the financial condition
of the corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and
with such surety or sureties as shall be satisfactory to the board of
directors for the faithful performance of the duties of his office and for
the restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control
belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of
directors (or if there be no such determination, then in the order of their
election) shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of
the treasurer and shall perform such other duties and have such other powers
as the board of directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. 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 or vice-chairman of the board
of directors, or the president or a vice-president, and by the treasurer- or
an assistant treasurer, or the secretary or an assistant secretary of the
corporation.
<PAGE>
Section 2. Any of or all the signatures on a certificate may be
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 were such officer, transfer agent or registrar at
the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any
certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates
or uncertificated shares, the board of directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall
be the duty of the corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon
its books. Upon receipt of proper transfer instructions from the registered
owner of uncertificated shares such uncertificated shares shall be cancelled
and issuance of new equivalent uncertificated shares or certificated shares
shall be made to the person entitled thereto and the transaction shall be
recorded upon the books of the corporation.
FIXING RECORD DATE
Section 5. 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.
A
<PAGE>
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.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and
shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in shares of
the capital stock, subject to the provisions of the certificate of
incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as
the directors from time to time, in their absolute discretion, think proper
as a reserve or reserves to meet contingencies, or for equalizing dividends,
or for repairing or maintaining any property of the corporation, or for such
other purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons
as the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be the last
Saturday in April.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by
the certificate of incorporation it shall not divest or limit the power of
the stockholders to adopt, amend or repeal by-laws.
<PAGE>
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
U.S. OFFICE FURNITURE RENTALS, INC.
U.S. OFFICE FURNITURE RENTALS, INC., a corporation organized and
existing under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is U.S. OFFICE FURNITURE RENTALS,
INC. and the name under which the corporation was originally
incorporated is BETTER BREW ACQUISITION CORP. The date of
filing of its original Certificate of Incorporation with the
Secretary of State was July 3, 1996.
2. This Amended and Restated Certificate of Incorporation
restates and integrates and further amends the Certificate of
Incorporation of this corporation in its entirety.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended and restated hereby
to read as herein set forth in full:
l. The name of the corporation is US OFFICE FURNITURE RENTALS,
INC.
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation
Law of Delaware and in general, to possess and exercise all
the powers and privileges granted by the General Corporation
Law of Delaware or by any other law of Delaware or by this
Certificate of Incorporation together with any powers
incidental thereto, so far as such powers and privileges are
necessary
<PAGE>
or convenient to the conduct, promotion or attainment of the
business or purposes of the corporation.
4. The total number of shares of stock which the corporation
shall have authority to issue is: One Thousand (1,000) shares
of Common Stock; all of such shares shall be without par
value.
5. The corporation is to have perpetual existence.
6. The corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
7. 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 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 any improper
personal benefit.
4. This Amended and Restated Certificate of Incorporation was
duly adopted by unanimous written consent of the stockholders
in accordance with the applicable provisions of Section 228,
242 and 245 of the General Corporation Law of the State of
Delaware.
5. This Amended and Restated Certificate of Incorporation shall
be effective on October 1, 1998.
<PAGE>
IN WITNESS WHEREOF, said U.S. Office Furniture Rentals, Inc. has caused this
Amended and Restated Certificate of Incorporation to be signed by Mark D.
Director, its Vice President, this Twenty-Fifth day of September, 1998.
U.S. OFFICE FURNITURE RENTALS, INC.
By: /s/ Mark D. Director
--------------------------------
Vice President
<PAGE>
Exhibit 3.98
US OFFICE FURNITURE RENTALS, INC.
* * * * *
AMENDED AND RESTATED
BY-LAWS
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of directors
shall be held in the City of Washington, District of Columbia at such place as
may be fixed from time to time by the board of directors, or at such other place
either within or without the State of Delaware as shall be designated from time
to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1999, shall be held during the first week of June at 10:00 a.m. or at such
other date and time as shall be designated from time to time by the board of
directors and stated in the notice of the meeting, at which they shall elect
by a plurality vote a board of directors, and transact such other business as
may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than 10 nor more than 60 days before the date of the meeting.
Section 4. 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
<PAGE>
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than 10 nor more than 60 days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have 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 such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. 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 9. When a quorum is present at any meeting, the vote of the holders
of a majority of the stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the
question is one upon which by express provision of the statutes or of the
certificate of incorporation, a different vote is required in which case such
express provision shall govern and control the decision of such question.
<PAGE>
Section 10. 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, but no proxy shall be voted on after three years
from its date, unless the proxy provides for a longer period.
Section 11. 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 thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board
shall be 3. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under the
direction of its board of directors which may exercise all such powers of the
corporation and do all such
<PAGE>
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.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors shall
be held at such time and place as shall be fixed by the vote of the stockholders
at the annual meeting and no notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting, provided a
quorum shall be present. In the event of the failure of the stockholders to fix
the time or place of such first meeting of the newly elected board of directors,
or in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
board of directors, or as shall be specified in a written waiver signed by all
of the directors.
Section 6. Regular meetings of the board of directors may be held without
notice at such time and at such place as shall from time to time be determined
by the board.
Section 7. Special meetings of the board may be called by the president on
10 days' notice to each director, either personally or by mail or by facsimile
communication; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of the sole director.
Section 8. At all meetings of the board, a majority of directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be present
at any meeting of the board of directors the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 9. 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 or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
<PAGE>
Section 10. Unless otherwise restricted by the certificate of incorporation
or these by-laws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board 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.
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 the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
General Corporation Law of Delaware to be submitted to stockholders for approval
or (ii) adopting, amending or repealing any by-law of the corporation. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of incorporation
or these by-laws, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
<PAGE>
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of incorporation
or by law, any director or the entire board of directors may be removed, with or
without cause, by the holders of a majority of shares entitled to vote at an
election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by facsimile telecommunication.
Section 2. Whenever any notice is required to be given under the provisions
of the statutes or of the certificate of incorporation or of these by-laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurers. Any number of offices may be held by the same
person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation shall
be fixed by the board of directors.
<PAGE>
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his inability
or refusal to act, the vice-president (or in the event there be more than one
vice-president, the vice-presidents in the order designated by the directors, or
in the absence of any designation, then in the order of their election) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
<PAGE>
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the treasurer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. 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 or vice-chairman of the board
of directors, or the president or a vice-president, and by the treasurer- or
an assistant treasurer, or the secretary or an assistant secretary of the
corporation.
<PAGE>
Section 2. Any of or all the signatures on a certificate may be 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 were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. 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. A
<PAGE>
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.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting, and
at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be the last Saturday in
April.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new by-laws
may be adopted by the stockholders or by the board of directors, when such power
is conferred upon the board of directors by the certificate of incorporation at
any regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors if notice of
such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
by-laws is conferred upon the board of directors by the certificate of
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
<PAGE>
Exhibit 3.99
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
U.S. OFFICE PRODUCTS-GREAT LAKES, INC.
U.S. OFFICE PRODUCTS-GREAT LAKES, INC., a corporation organized and
existing under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is U.S. OFFICE PRODUCTS-GREAT
LAKES, INC. and the name under which the corporation was
originally incorporated is C.W. Mills Acquisition Corp. The
date of filing of its original Certificate of Incorporation
with the Secretary of State was June 7, 1995.
2. This Amended and Restated Certificate of Incorporation
restates and integrates and further amends the Certificate of
Incorporation of this corporation in its entirety.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended and restated hereby
to read as herein set forth in full:
l. The name of the corporation is US OFFICE PRODUCTS, GREAT
LAKES DISTRICT, INC.
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation
Law of Delaware and in general, to possess and exercise all
the powers and privileges granted by the General Corporation
Law of Delaware or by any other law of Delaware or by this
Certificate of Incorporation together with
<PAGE>
any powers incidental thereto, so far as such powers and
privileges are necessary or convenient to the conduct,
promotion or attainment of the business or purposes of the
corporation.
4. The total number of shares of stock which the corporation
shall have authority to issue is: One Thousand (1,000) shares
of Common Stock; all of such shares shall be without par
value.
5. The corporation is to have perpetual existence.
6. The corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
7. 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 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 any improper
personal benefit.
4. This Amended and Restated Certificate of Incorporation was
duly adopted by unanimous written consent of the stockholders
in accordance with the applicable provisions of Section 228,
242 and 245 of the General Corporation Law of the State of
Delaware.
5. This Amended and Restated Certificate of Incorporation shall
be effective on October 1, 1998.
<PAGE>
IN WITNESS WHEREOF, said U.S. OFFICE PRODUCTS-GREAT LAKES, INC. has caused this
Amended and Restated Certificate of Incorporation to be signed by Mark D.
Director, its Vice President, this Twenty-Fifth day of September, 1998.
U.S. OFFICE PRODUCTS-GREAT LAKES, INC.
By: /s/ Mark D. Director
---------------------------
Vice President
<PAGE>
Exhibit 3.100
US OFFICE PRODUCTS, GREAT LAKES DISTRICT, INC.
* * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in Bingham Farms, Michigan.
Section 2. The corporation may also have offices at such other places
both within and without the State of Michigan as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in Midland, State of Michigan, at such place as may be fixed from
time to time by the board of directors.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held in the last week of June at 10:00 A.M., at which they shall
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
<PAGE>
Section 3. Written notice of the time, place and purposes of a meeting
of shareholders shall be given not less than ten nor more than sixty days before
the date of the meeting, either personally or by mail, to each shareholder of
record entitled to vote at the meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Michigan as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of shareholders may be called at any time,
for any purpose or purposes, by the board of directors or by such other persons
as may be authorized by law.
Section 3. Written notice of the time, place and purposes of a special
meeting of shareholders shall be given not less than ten nor more than sixty
days before the date of the meeting, either personally or by mail, to each
shareholder of record entitled to vote at the meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the
<PAGE>
shareholders for the transaction of business except as otherwise provided by
statute or by the articles of incorporation. The shareholders present in person
or by proxy at such meeting may continue to do business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum. Whether or not a quorum is present, the meeting may be adjourned by a
vote of the shares present. When the holders of a class or series of shares, are
entitled to vote separately on an item of business, this section applies in
determining the presence of a quorum of such class or series for transaction of
the item of business.
Section 2. If a quorum is present, the affirmative vote of a majority
of the shares of stock represented at the meeting shall be the act of the
shareholders unless the vote of a greater number of shares of stock is required
by law or the articles of incorporation.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Section 4. Any action required or permitted to be taken at an annual or
special meeting of shareholders may be taken without a meeting, without prior
notice and without a vote, if all the shareholders entitled to vote thereon
consent thereto in writing.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Directors need not be
residents of the State of Michigan nor shareholders of the corporation. The
first board of directors shall hold office until the
<PAGE>
first annual meeting of shareholders. The directors, other than the first board
of directors, shall be elected at the annual meeting of the shareholders, and
shall hold office for the term for which he is elected and until his successor
is elected and qualified.
Section 2. Any vacancy occurring in the board of directors may be
filled by the affirmative vote of a majority of the remaining directors though
less than a quorum of the board of directors. A directorship to be filled
because of an increase in the number of directors or to fill a vacancy may be
filled by the board for a term of office continuing only until the next election
of directors by the shareholders.
Section 3. The business affairs of the corporation shall be managed by
its board except as otherwise provided by statute or in the articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the corporation, outside
of the State of Michigan, at such place or places as they may from time to time
determine.
Section 5. The board of directors, by the affirmative vote of a
majority of the directors in office, and irrespective of any personal interest
of any of them, may establish reasonable compensation of directors for services
to the corporation as directors or officers.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
<PAGE>
Section 1. Regular or special meetings of the board of directors may be
held either within or without the State of Michigan.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 2 days' notice to each director, either personally or by mail
or by telegram; special meetings shall be called by the president or secretary
in like manner and on like notice on the written request of two directors.
Section 5. Attendance of a director at a meeting constitutes a waiver
of notice of the meeting, except where a director attends a meeting for the
express purpose of objecting 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, a regular or special meeting need be
specified in the notice or waiver of notice of the meeting.
Section 6. A majority of the members of the board then in office
constitutes a quorum for transaction of business, unless the articles of
incorporation provide for a larger or smaller number. The vote of the majority
of members present at a meeting at which a quorum is present constitutes
<PAGE>
the action of the board unless the vote of a larger number is required by
statute, the articles or these by-laws. If a quorum shall not be present at any
meeting of directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 7. Unless otherwise provided by the articles of incorporation
action required or permitted to be taken pursuant to authorization voted at a
meeting of the board, may be taken without a meeting if, before or after the
action, all members of the board consent thereto in writing. The written
consents shall be filed with the minutes of the proceedings of the board. The
consent has the same effect as a vote of the board for all purposes.
ARTICLE VII
COMMITTEES
Section 1. Unless otherwise provided in the articles of incorporation,
the board may designate one or more committees, each committee to consist of one
or more of the directors of the corporation. The board may designate one or more
directors as alternate members of a committee, who may replace an absent or
disqualified member at a meeting of the committee. In the absence or
disqualification of a member of a committee, the members thereof present at a
meeting and not disqualified from voting, whether or not they constitute a
quorum, may unanimously appoint another member of the board to act at the
meeting in place of such an absent or disqualified member. A committee, and each
member thereof, shall serve at the pleasure of the board. A committee, to the
extent provided in the resolution of the board or in the by-laws, may exercise
all
<PAGE>
powers and authority of the board in management of the business and affairs of
the corporation subject to any limitations by statute or in the articles of
incorporation.
<PAGE>
ARTICLE VIII
NOTICES
Section 1. When a notice or communication is required or permitted by
this act to be given by mail, it shall be mailed, except as otherwise provided
in this act, to the person to whom it is directed at the address designated by
him for that purpose or, if none is designated, at his last known address. The
notice or communication is given when deposited, with postage thereon prepaid,
in a post office or official depository under the exclusive care and custody of
the United States postal service. The mailing shall be registered, certified or
other first class mail except where otherwise provided by statute.
Section 2. When, under statutory requirements or the articles of
incorporation or these by-laws or by the terms of an agreement or instrument, a
corporation or the board or any committee thereof may take action after notice
to any person or after lapse of a prescribed period of time, the action may be
taken without notice and without lapse of the period of time, if at any time
before or after the action is completed the person entitled to notice or to
participate in the action to be taken or, in case of a shareholder, by his
attorney-in-fact, submits a signed waiver of such requirements.
ARTICLE IX
OFFICERS
<PAGE>
Section 1. The officers of the corporation shall be appointed by the
board of directors and shall be a chairman of the board, a president, one or
more vice-presidents, secretary, treasurer and such other officers as may be
determined by the board.
Section 2. The board of directors at its first meeting after each
annual meeting of shareholders shall choose a president, one or more
vice-presidents, secretary, and treasurer, none of whom need be a member of the
board.
Section 3. The board of directors may appoint such other officers,
assistant officers, employees and agents as it deems necessary and prescribe
their powers and duties.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. An officer elected or appointed shall hold office for the
term for which he is elected or appointed and until his successor is elected or
appointed and qualified, or until his resignation or removal. An officer elected
or appointed by the board may be removed by the board with or without cause.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
<PAGE>
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by
<PAGE>
his signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
<PAGE>
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates signed by the chairman of the board, vice-chairman of the board,
president or a vice-president and by the treasurer, assistant treasurer,
secretary or assistant secretary of the corporation, and may be sealed with the
seal of the corporation or a facsimile thereof. A certificate representing
shares shall state upon its face that the corporation is formed under the laws
of this state, the name of the person to whom issued, the number and class of
shares, and the designation of the series, if any, which the certificate
represents, the par value of each share represented by the certificate, or a
statement that the shares are without par value and shall set forth on its face
or back or state that the corporation will furnish to a shareholder upon request
and without charge a full statement of the designation, relative rights,
preferences and limitations of the shares of each class authorized to be issued,
and if the corporation is authorized to issue any class of shares in series, the
designation, relative rights, preferences and limitations of each series so far
as the same have been prescribed and the authority
<PAGE>
of the board to designate and prescribe the relative rights, preferences and
limitations of other series.
Section 2. The signatures of the officers may be facsimiles if the
certificate is countersigned by a transfer agent or registered by a registrar
other than the corporation itself or its employee. In case any officer who has
signed or whose facsimile signature has been placed upon a certificate ceases to
be such officer before the certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed, and the board may require the owner of the lost
or destroyed certificate, or his legal representative, to give the corporation a
bond sufficient to indemnify the corporation against any claim that may be made
against it on account of the alleged lost or destroyed certificate or the
issuance of such a new certificate.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession,
<PAGE>
assignment or authority to transfer, a new certificate shall be issued to the
person entitled thereto, and the old certificate cancelled and the transaction
recorded upon the books of the corporation.
FIXING OF RECORD DATE
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at a meeting of shareholders or an adjournment thereof, or
to express consent or to dissent from a proposal without a meeting, or for the
purpose of determining shareholders entitled to receive payment of a dividend or
allotment of a right, or for the purpose of any other action, the board of
directors may fix, in advance, a date as the record date for any such
determination of shareholders. The date shall not be more than sixty nor less
than ten days before the date of the meeting, not more than sixty days before
any other action. If a record date is not fixed, the record date for
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders shall be the close of business on the day next preceding the day on
which notice is given, or, if no notice is given, the day next preceding the day
on which the meeting is held, and the record date for determining shareholders
for any purpose shall be the close of business on the day on which the
resolution of the board relating thereto is adopted. When a determination of
shareholders of record entitled to notice of or to vote at a meeting of
shareholders has been made, the determination applies to any adjournment of the
meeting, unless the board fixes a new record date for the adjourned meeting.
REGISTERED SHAREHOLDERS
Section 6. For the purpose of determining shareholders entitled to vote
or receive payment of a dividend or allotment of a right, the corporation shall
be authorized to accept the list of
<PAGE>
shareholders made and certified by the officer or agent having charge of the
stock transfer books as prima facie evidence as to who are such shareholders on
the designated record date.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the stock transfer
books for shares of a corporation shall make and certify a complete list of the
shareholders entitled to vote at a shareholders' meeting or any adjournment
thereof. The list shall be arranged alphabetically within each class and series,
with the address of, and the number of shares held by each shareholder, produced
at the time and place of the meeting, subject to inspection by any shareholder
during the whole time of the meeting and be prima facie evidence as to who are
the shareholders entitled to examine the list or to vote at the meeting. A
person who is a shareholder of record of a corporation, upon at least ten days'
written demand may examine for any proper purpose in person or by agent or
attorney, during usual business hours, its minutes of shareholders' meetings and
record of shareholders and make extracts therefrom, at the places where they are
kept.
ARTICLE XI
DIVIDENDS
Section 1. The board of directors may declare and pay dividends or make
other distributions in cash, bonds or property of the corporation, including the
shares or bonds of other corporations, on its outstanding shares, except when
currently the corporation is insolvent or would thereby be
<PAGE>
made insolvent, or when the declaration, payment or distribution would be
contrary to any statutory restriction or restriction contained in the articles
of incorporation.
Section 2. Before payment of any dividend, the board of directors may
create reserves from its earned surplus or capital surplus for any proper
purpose and may increase, decrease or abolish such reserve.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday of April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Michigan". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
<PAGE>
ARTICLE XII
AMENDMENTS
These by-laws may be amended or repealed or new by-laws may be adopted
by the shareholders or board of directors except as may be provided in the
articles of incorporation. The shareholders may prescribe in these by-laws that
any by-law made by them shall not be altered or repealed by the board of
directors. Amendment of the by-laws by the board requires a vote of not less
than a majority of the members of the board then in office.
<PAGE>
ARTICLE XIII
DIRECTORS' ANNUAL STATEMENT
Section 1. At least once in each year the board of directors shall
cause a financial report of the corporation for the preceding fiscal year to be
made and distributed to each shareholder thereof within four months after the
end of the fiscal year. The report shall include the corporation's statement of
income, its year-end balance sheet and, if prepared by the corporation, its
statement of source and application of funds and such other information as may
be required by statute.
FINANCIAL STATEMENT TO SHAREHOLDERS
Section 2. Upon written request of a shareholder, the corporation shall
mail to the shareholder its balance sheet as at the end of the preceding fiscal
year; its statement of income for such fiscal year; and, if prepared by the
corporation, its statement of source and application of funds for such fiscal
year.
<PAGE>
Exhibit 3.101
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
USOP MERCHANDISING COMPANY
USOP MERCHANDISING COMPANY, a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is USOP MERCHANDISING COMPANY and
the name under which the corporation was originally
incorporated is AM\PM ACQUISITION CORP. The date of filing of
its original Certificate of Incorporation with the Secretary
of State was July 3, 1996.
2. This Amended and Restated Certificate of Incorporation
restates and integrates and further amends the Certificate of
Incorporation of this corporation in its entirety.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended and restated hereby
to read as herein set forth in full:
l. The name of the corporation is USOP MERCHANDISING COMPANY.
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation
Law of Delaware and in general, to possess and exercise all
the powers and privileges granted by the General Corporation
Law of Delaware or by any other law of Delaware or by this
Certificate of Incorporation together with any powers
incidental thereto, so far as such powers and privileges are
necessary
<PAGE>
or convenient to the conduct, promotion or attainment of the
business or purposes of the corporation.
4. The total number of shares of stock which the corporation
shall have authority to issue is: One Thousand (1,000) shares
of Common Stock; all of such shares shall be without par
value.
5. The corporation is to have perpetual existence.
6. The corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
7. 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 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 any improper
personal benefit.
4. This Amended and Restated Certificate of Incorporation was duly
adopted by unanimous written consent of the stockholders in accordance
with the applicable provisions of Section 228, 242 and 245 of the
General Corporation Law of the State of Delaware.
5. This Amended and Restated Certificate of Incorporation shall be
effective on October 1, 1998.
<PAGE>
IN WITNESS WHEREOF, said USOP MERCHANDISING COMPANY. has caused this Amended and
Restated Certificate of Incorporation to be signed by Mark D. Director, its Vice
President, this Twenty-Fifth day of September, 1998.
USOP MERCHANDISING COMPANY
By: /s/ Mark D. Director
------------------------
Vice President
<PAGE>
Exhibit 3.102
USOP MERCHANDISING COMPANY
* * * * *
AMENDED AND RESTATED
BY-LAWS
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Washington, District of Columbia at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year1999,
shall be held during the first week of June at 10:00 a.m. or at such other date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than 10 nor more than 60 days before the date of the meeting.
Section 4. 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
<PAGE>
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than 10 nor more than 60 days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have 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 such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. 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 9. When a quorum is present at any meeting, the vote of the holders
of a majority of the stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the
question is one upon which by express provision of the statutes or of the
certificate of incorporation, a different vote is required in which case such
express provision shall govern and control the decision of such question.
<PAGE>
Section 10. 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, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. 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 thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board
shall be 3. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such
<PAGE>
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.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 10 days' notice to each director, either personally or by mail or by
facsimile communication; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors unless the board consists of only one director; in which case special
meetings shall be called by the president or secretary in like manner and on
like notice on the written request of the sole director.
Section 8. At all meetings of the board, a majority of directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be present
at any meeting of the board of directors the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 9. 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 or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
<PAGE>
Section 10. Unless otherwise restricted by the certificate of incorporation
or these by-laws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board 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.
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 the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
General Corporation Law of Delaware to be submitted to stockholders for approval
or (ii) adopting, amending or repealing any by-law of the corporation. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of incorporation
or these by-laws, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
<PAGE>
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of incorporation
or by law, any director or the entire board of directors may be removed, with or
without cause, by the holders of a majority of shares entitled to vote at an
election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by facsimile telecommunication.
Section 2. Whenever any notice is required to be given under the provisions
of the statutes or of the certificate of incorporation or of these by-laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurers. Any number of offices may be held by the same
person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation shall
be fixed by the board of directors.
<PAGE>
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his inability
or refusal to act, the vice-president (or in the event there be more than one
vice-president, the vice-presidents in the order designated by the directors, or
in the absence of any designation, then in the order of their election) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
<PAGE>
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the treasurer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. 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 or vice-chairman of the board
of directors, or the president or a vice-president, and by the treasurer- or
an assistant treasurer, or the secretary or an assistant secretary of the
corporation.
<PAGE>
Section 2. Any of or all the signatures on a certificate may be 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 were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. 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. A
<PAGE>
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.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting, and
at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be the last Saturday in
April.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new by-laws
may be adopted by the stockholders or by the board of directors, when such power
is conferred upon the board of directors by the certificate of incorporation at
any regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors if notice of
such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
by-laws is conferred upon the board of directors by the certificate of
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
<PAGE>
Exhibit 3.103
CERTIFICATE OF AMENDMENT AND RESTATEMENT
TO THE CERTIFICATE OF FORMATION
OF
U.S. OFFICE PRODUCTS-MIDWEST, LLC
1. The name of the limited liability company is U.S. OFFICE PRODUCTS-MIDWEST,
LLC, which was formed on March 24, 1998 under the original name of U.S. OFFICE
PRODUCTS- MIDWEST, LLC. 2. The Certificate of Formation of the limited liability
company is hereby amended as follows:
FIRST: The name of the limited liability company formed hereby US OFFICE
PRODUCTS, CHICAGO DISTRICT, LLC.
SECOND: The address of the company's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle. The name of the company's registered agent as such
address is The Corporation Trust Company.
THIRD: The purpose of the company is to engage in any lawful act or
activity for which a limited liability company may be organized
under the Delaware Limited Liability Company Act.
FOURTH: No member of the company shall be obligated personally for any
debt, obligation or liability of the company solely by reason of
being a member of the company. The failure to observe any
formalities relating to the business or affairs of the company
shall not be grounds for imposing personal liability on any member
for the debts, obligations or liabilities of the company.
FIFTH: The company reserves the right to amend or repeal any provision
contained herein in the manner now or hereafter prescribed by law.
3. This Certificate of Amendment and Restatement shall be effective on October
1, 1998.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment
and Restatement of U.S. OFFICE PRODUCTS-MIDWEST, LLC this Twenty-Fifth day of
September, 1998.
U.S. OFFICE PRODUCTS COMPANY
Its Sole Member
By: /s/ Mark D. Director
-------------------------------------------
Mark D. Director
Executive Vice President - Administration
<PAGE>
Exhibit 3.104
OPERATING AGREEMENT OF
U.S. OFFICE PRODUCT - MIDWEST, L.L.C.
A DELAWARE LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT (this "Agreement") of U.S. Office Products -
Midwest, LLC , a Delaware limited liability company (the "Company"), is entered
into as of March 24, 1998 and shall constitute the "limited liability company
agreement" of the Company within the meaning of Section 18-101(7) of the
Delaware Limited Liability Company Act, Title 6, Delaware Corporations Code,
Section 18-101 et seq., as amended (the "Act").
1.1 Except as otherwise provided in this Agreement, the default
provisions of the Act shall apply to the Company.
1.2 U.S. Office Products Company, a Delaware corporation, shall be the
sole "member" of the Company within the meaning of Section 18-101(11) of the Act
(the "Member").
1.3 The Member hereby enters into and forms the Company as a limited
liability company in accordance with the Act. The name of the Company shall be
"U.S. Office Products - Midwest, LLC."
1.4 The Company shall maintain a Delaware registered office and agent
for the service of process as required by the Act. In the event the registered
agent ceases to act as such for any reason or the registered office shall
change, the Member shall promptly designate a replacement registered agent or
file a notice of change of address, as the case may be.
1.5 The purpose and scope of the Company shall be to engage in any
lawful act or activities as shall be determined by the Member in its sole and
absolute discretion.
1.6 The term (the "Term") of the Company shall begin as of the date of
filing of the Certificate of Formation for the Company in accordance with
Section 18-201 of the Act and shall continue until dissolved by the Member in
its sole and absolute discretion. Except as specifically provided in this
Section 1.6, the Company shall not be dissolved prior to the end of its Term.
1.7 Title to all Company property shall be held in the name of the
Company; provided, however, that the Company shall make such distributions of
cash and/or property to the Member from time to time as the Member shall
determine in its sole and absolute discretion.
1.8 Except as otherwise required by applicable law, the Member shall
have no personal liability for the debts and obligations of the Company.
1
<PAGE>
1.9 The Member shall have no obligation to make any contributions to
the capital of the Company and shall make only such contributions as the Member
shall determine in its sole and absolute discretion.
1.10 The Member shall have no obligation to provide any services to the
Company and shall provide only such services as the Member shall determine in
its sole and absolute discretion.
1.11 The Company shall indemnify the Member to the fullest extent
permitted by law.
1.12 Pursuant to Sections 18-402 and 18-407 of the Act, the Member
shall delegate the management and operation of the Company to Wendy Pike, John
F. Pike, Kathleen M. Delaney, and Mark D. Director, who shall act as managers of
the Company. Wendy Pike shall hold the offices of President and Treasurer of the
Company, John F. Pike shall hold the office of Secretary of the Company,
Kathleen M. Delaney shall hold the office of Vice-President of the Company, and
Mark D. Director shall hold the offices of Vice-President and Assistant
Secretary of the Company, each to serve until his successor is duly elected and
qualified. Notwithstanding any provision of this Agreement to the contrary, any
contract, agreement, deed, lease, note or other document or instrument executed
on behalf of the Company by the Member or managers shall be deemed to have been
duly executed and third parties shall be entitled to rely upon the Member's
and/or managers' power to bind the Company without otherwise ascertaining that
the requirements of this Agreement have been satisfied.
1.13 The "U.S. Office Products - Midwest" name and mark are the
property of the Member. The Company's authority to use such names and marks may
be withdrawn by the Member at any time without compensation to the Company.
Following the dissolution and liquidation of the Company, all right, title and
interest in and to such names and marks shall be held solely by the Member.
1.14 The interpretation and enforceability of this Agreement and the
rights and liabilities of the Member as such shall be governed by the laws of
the State of Delaware as such laws are applied in connection with limited
liability company operating agreements entered into and wholly performed upon in
Delaware by residents of Delaware. To the extent permitted by the Act and other
applicable law, the provisions of this Agreement shall supersede any contrary
provisions of the Act or other applicable law.
1.15 In the event any provision of this Agreement is determined to be
invalid or unenforceable, such provision shall be deemed severed from the
remainder of this Agreement and replaced with a valid and enforceable provision
as similar in intent as reasonably possible to the provision so severed, and
shall not cause the invalidity or unenforceability of the remainder of this
Agreement.
1.16 This Agreement may be amended, in whole or in part, only through a
written amendment executed by the Member.
2
<PAGE>
1.17 This Agreement contains the entire understanding and intent of the
Member regarding the Company and supersedes any prior written or oral agreement
respecting the Company. There are no representations, agreements, arrangements,
or understandings, oral or written, of the Member relating to the Company which
are not fully expressed in this Agreement.
IN WITNESS WHEREOF, the Member has executed this Agreement as of the
date first above written.
U.S. OFFICE PRODUCTS COMPANY,
Sole Member
- -------------------------------
Mark D. Director
Executive Vice President - Administration
and General Counsel
3
<PAGE>
Exhibit 3.105
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
U.S. OFFICE PRODUCTS OF NORTHERN WISCONSIN, INC.
U.S. OFFICE PRODUCTS OF NORTHERN WISCONSIN, INC., a corporation
organized and existing under the laws of the State of Delaware, hereby
certifies as follows:
1. The name of the corporation is U.S. OFFICE PRODUCTS OF NORTHERN
WISCONSIN, INC. and the name under which the corporation was
originally incorporated is EN ACQUISITION CORP. The date of filing
of its original Certificate of Incorporation with the Secretary of
State was June 28, 1996.
2. This Amended and Restated Certificate of Incorporation restates
and integrates and further amends the Certificate of Incorporation
of this corporation in its entirety.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended and restated hereby
to read as herein set forth in full:
1. The name of the corporation is US OFFICE PRODUCTS, WISCONSIN
DISTRICT, INC.
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street,
in the City of Wilmington, County of New Castle. The name of
its registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation
Law of Delaware and in general, to possess and exercise all the
powers and privileges granted by the General Corporation Law
of Delaware or by any other law of Delaware or by this
Certificate of Incorporation together with
<PAGE>
any powers incidental thereto, so far as such powers and
privileges are necessary or convenient to the conduct,
promotion or attainment of the business or purposes of the
corporation.
4. The total number of shares of stock which the corporation
shall have authority to issue is: One Thousand (1,000) shares
of Common Stock; all of such shares shall be without par value.
5. The corporation is to have perpetual existence.
6. The corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
7. 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 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 any improper personal benefit.
4. This Amended and Restated Certificate of Incorporation was duly
adopted by unanimous written consent of the stockholders in
accordance with the applicable provisions of Section 228, 242
and 245 of the General Corporation Law of the State of Delaware.
5. This Amended and Restated Certificate of Incorporation shall be
effective on October 1, 1998.
<PAGE>
IN WITNESS WHEREOF, said U.S. OFFICE PRODUCTS OF NORTHERN WISCONSIN, INC. has
caused this Amended and Restated Certificate of Incorporation to be signed by
Mark D. Director, its Vice President, this Twenty-Fifth day of September,
1998.
U.S. OFFICE PRODUCTS OF NORTHERN
WISCONSIN, INC.
By: /s/ Mark D. Director
--------------------------------------
Vice President
<PAGE>
Exhibit 3.106
US OFFICE PRODUCTS, WISCONSIN DISTRICT, INC.
* * * * *
AMENDED AND RESTATED
BY-LAWS
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Stevens Point, State of Wisconsin at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year1999,
shall be held during the first week of June at 10:00 a.m. or at such other date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than 10 nor more than 60 days before the date of the meeting.
Section 4. 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
<PAGE>
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than 10 nor more than 60 days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have 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 such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. 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 9. When a quorum is present at any meeting, the vote of the holders
of a majority of the stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the
question is one upon which by express provision of the statutes or of the
certificate of incorporation, a different vote is required in which case such
express provision shall govern and control the decision of such question.
<PAGE>
Section 10. 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, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. 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 thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board
shall be 3. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such
<PAGE>
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.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 10 days' notice to each director, either personally or by mail or by
facsimile communication; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors unless the board consists of only one director; in which case special
meetings shall be called by the president or secretary in like manner and on
like notice on the written request of the sole director.
Section 8. At all meetings of the board, a majority of directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be present
at any meeting of the board of directors the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 9. 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 or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
<PAGE>
Section 10. Unless otherwise restricted by the certificate of incorporation
or these by-laws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board 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.
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 the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
General Corporation Law of Delaware to be submitted to stockholders for approval
or (ii) adopting, amending or repealing any by-law of the corporation. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of incorporation
or these by-laws, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
<PAGE>
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of incorporation
or by law, any director or the entire board of directors may be removed, with or
without cause, by the holders of a majority of shares entitled to vote at an
election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by facsimile telecommunication.
Section 2. Whenever any notice is required to be given under the provisions
of the statutes or of the certificate of incorporation or of these by-laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurers. Any number of offices may be held by the same
person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation shall
be fixed by the board of directors.
<PAGE>
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his inability
or refusal to act, the vice-president (or in the event there be more than one
vice-president, the vice-presidents in the order designated by the directors, or
in the absence of any designation, then in the order of their election) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
<PAGE>
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the treasurer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. 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 or vice-chairman of the board
of directors, or the president or a vice-president, and by the treasurer- or
an assistant treasurer, or the secretary or an assistant secretary of the
corporation.
<PAGE>
Section 2. Any of or all the signatures on a certificate may be 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 were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. 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. A
<PAGE>
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.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting, and
at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be the last Saturday in
April.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new by-laws
may be adopted by the stockholders or by the board of directors, when such power
is conferred upon the board of directors by the certificate of incorporation at
any regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors if notice of
such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
by-laws is conferred upon the board of directors by the certificate of
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
<PAGE>
Exhibit 3.107
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
U.S. OFFICE PRODUCTS SOUTHERN CALIFORNIA
************************
We, Kathleen M. Delaney, the Vice President, and Mark D. Director, the
Assistant Secretary, of U.S. Office Products Southern California, a corporation
duly organized and existing under the laws of the State of California, do hereby
certify:
That they are the Vice President and the Assistant Secretary, respectively
of U.S. Office Products Southern California, a California corporation.
That the articles of incorporation of this corporation were filed by the
Secretary of State on the Thirtieth day of March, 1978.
That an amended and restatement of the articles of incorporation of this
corporation has been approved by the board of directors.
That a restatement of the articles of incorporation shall be as said
articles are amended through the date of the filing of this certificate.
The foregoing amendment and restatement of Articles of Incorporation has
been duly approved by the required vote of shareholders in accordance with
Section 902, California Corporations Code. The total number of outstanding
shares of the corporation is 100. The number of shares voting in favor of the
amendment equaled or exceeded the vote required. The percentage vote required
was more than 50%.
That the following sets forth the text of the articles of incorporation of
this corporation as amended to the date of this certificate in full:
<PAGE>
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
U.S. OFFICE PRODUCTS SOUTHERN CALIFORNIA
FIRST: That the name of the corporation is US OFFICE PRODUCTS, SOUTHERN
CALIFORNIA DISTRICT, INC.
SECOND: The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporation Code.
THIRD: The total number of shares which the corporation is authorized to issue
is 1,000 shares of Common Stock; all of such shares shall be with no par value.
FOURTH: The duration of this corporation is to be perpetual.
<PAGE>
Each of the undersigned declares under penalty of perjury that the
statements contained in the foregoing certificate are true of their own
knowledge. Executed at 1025 Thomas Jefferson Street, NW, Suite 600 East,
Washington, DC, on September 25, 1998.
/s/ Kathleen M. Delaney
------------------------------------
Kathleen M. Delaney, Vice President
/s/ Mark D. Director
------------------------------------
Mark D. Director, Assistant Secretary
<PAGE>
Exhibit 3.108
US OFFICE PRODUCTS, SOUTHERN CALIFORNIA DISTRICT, INC.
* * * * *
AMENDED AND RESTATED
BYLAWS
* * * * *
ARTICLE I
OFFICES
Section 1. The principal executive office shall be located in San Jose,
California.
Section 2. The corporation may also have offices at such other places
both within and without the State of California as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for the election of directors
shall be held in the City of Industry, State of California, at such place as may
be fixed from time to time by the board of directors, or at such other place
either within or without the State of California as shall be designated from
time to time by the board of directors and stated in the notice of the meeting.
Meetings of shareholders for any other purpose may be held at such time and
place, within or without the State of California, as shall be stated in the
notice of the meeting or in a duly executed waiver of notice
<PAGE>
thereof. If no other place is stated or fixed, shareholders' meetings shall be
held at the principal executive office of the corporation.
Section 2. Annual meetings of shareholders, commencing with the year
1999, shall be held during the last week of June at 10:00 A.M., or at such other
date and time as shall be designated from time to time by the board of directors
and stated in the notice of the meeting, at which they shall elect by a
plurality vote a board of directors and transact such other business as may
properly be brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be given to each shareholder entitled
to vote thereat not less than 10 (or, if sent by third-class mail, 30) nor more
than 60 days before the date of the meeting. Notice may be sent by third-class
mail only if the outstanding shares of the corporation are held of record by 500
or more persons (determined as provided in section 605 of the California General
Corporation Law) on the record date for the shareholders' meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of California as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president, the board of directors, or the
holders of not less than 10 percent of all the shares entitled to vote at
<PAGE>
the meeting and if the corporation has a chairman of the board of directors,
special meetings of the shareholders may be called by the chairman.
Section 3. Written or printed notice of a special meeting of
shareholders, stating the time, place and purpose or purposes thereof, shall be
given to each shareholder entitled to vote thereat not less than 10 (or, if sent
by third-class mail, 30) nor more than 60 days before the date fixed for the
meeting. Notice may be sent by third-class mail only if the outstanding shares
of the corporation are held of record by 500 or more persons (determined as
provided in section 605 of the California General Corporation Law) on the record
date for the shareholders' meeting.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the original meeting.
<PAGE>
Section 2. If a quorum is present, the affirmative vote of a majority
of the shares of stock represented and voting at the meeting (which shares
voting affirmatively also constitute at least a majority of the required
quorum), shall be the act of the shareholders unless the vote of a greater
number or voting by classes is required by law or the articles of incorporation.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact. In all
elections for directors, every shareholder entitled to vote shall have the right
to vote, in person or by proxy, the number of shares of stock owned by him for
as many persons as there are directors to be elected, or, upon satisfaction of
the requirements set forth in Section 708(b) of the California General
Corporation Law, to cumulate the vote of said shares, and give one candidate a
number of votes equal to the number of directors to be elected multiplied by the
number of votes to which the shareholder's shares are normally entitled, or to
distribute the votes on the same principle among as many candidates as he may
see fit. Section 708(b) of the California General Corporation Law provides that
no shareholder shall be entitled to cumulate votes for any candidate for the
office of director unless such candidates' names have been placed in nomination
prior to the voting and at least one shareholder has given notice at the meeting
prior to the voting of his intention to cumulate his votes.
Section 4. Unless otherwise provided in the articles, any action,
except election of directors, which may be taken at any annual or special
meeting of shareholders may be taken without a meeting and without prior notice,
if a consent in writing, setting forth the action so taken, shall be signed by
the holders of outstanding shares having not less than the minimum number of
votes that
<PAGE>
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Except to fill a vacancy
in the board of directors not filled by the directors, directors may not be
elected by written consent except by unanimous written consent of all shares
entitled to vote for the election of directors. Any election of a director to
fill a vacancy (other than a vacancy created by removal) not filled by the
directors requires the written consent of a majority of the shares entitled to
vote.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Directors need not be
residents of the State of California nor shareholders of the corporation. The
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
Section 2. Unless otherwise provided in the articles of incorporation,
vacancies, except for a vacancy created by the removal of a director, and newly
created directorships resulting from any increase in the number of directors may
be filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify. Unless
otherwise provided in the articles of incorporation any vacancy created by the
removal of a director shall be filled by the shareholders by the vote of a
majority of the shares entitled to vote at a meeting at which a quorum is
present. Any vacancies, which may be filled by directors and are not filled by
the directors, may
<PAGE>
be filled by the shareholders by a majority of the shares entitled to vote at a
meeting at which a quorum is present.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
incorporation or by these bylaws directed or required to be exercised or done by
the shareholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
California, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of California.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
<PAGE>
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 2 days' notice to each director, either personally or by mail
or by telephone or by facsimile telecommunication; special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of two directors unless the board consists of only one director;
in which case, special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of the sole director.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
Section 6. A majority of the directors shall constitute a quorum for
the transaction of business unless a greater number is required by law or by the
articles of incorporation. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
unless the act of a greater number is required by statute or by the articles of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors present
<PAGE>
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors entitled to
vote with respect to the subject matter thereof.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the bylaws or otherwise, may designate two
or more directors to constitute an executive committee, which committee, to the
extent provided in such resolution, shall have and exercise all of the authority
of the board of directors in the management of the corporation, except as
otherwise required by law. Vacancies in the membership of the committee shall be
filled by the board of directors at a regular or special meeting of the board of
directors. The executive committee shall keep regular minutes of its proceedings
and report the same to the board when required. The board of directors may
designate one or more directors as alternate members of the executive committee.
The executive committee shall not have authority: (l) To approve any action
which will also require the shareholders' approval; (2) To fill vacancies on the
board or in any committee; (3) To fix the compensation of directors for serving
on the board or on any committee; (4) To amend or repeal the bylaws or adopt new
bylaws; (5) To amend or repeal any resolution of the board which by its express
terms is not so amendable or repealable; (6) To make a distribution
<PAGE>
to the shareholders except at a rate or in a periodic amount or within a price
range determined by the board; or (7) To appoint other committees of the board
or the members thereof.
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these bylaws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by facsimile telecommunication. Notice to any
shareholder shall be given at the address furnished by such shareholder for the
purpose of receiving notice. If such address is not given and if no address
appears on the records of the corporation for such shareholder, notice may be
given to such shareholder at the place where the principal executive office of
the corporation is located or by publication at least once in a newspaper of
general circulation in the county in which said principal executive office is
located. If a notice of a shareholders' meeting is sent by mail it shall be sent
by first-class mail, or, in case the corporation has outstanding shares held of
record by 500 or more persons (determined as provided in Section 605 of the
California General Corporation Law) on the record date for the shareholders'
meeting, notice may be by third-class mail.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these bylaws, a waiver thereof in
<PAGE>
writing signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice.
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation, except those elected in
accordance with Section 210 of the California General Corporation Law, shall be
chosen by the board of directors and shall be a president, a vice-president, a
secretary and a chief financial officer. The board of directors may also choose
additional vice-presidents, and one or more assistant secretaries and assistant
treasurers.
Section 2. The board of directors, at its first meeting after each
annual meeting of shareholders, shall choose a president, one or more
vice-presidents, a secretary and a chief financial officer, none of whom need be
a member of the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
<PAGE>
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may
<PAGE>
be prescribed by the board of directors or president, under whose supervision he
shall be. He shall have custody of the corporate seal of the corporation and he,
or an assistant secretary, shall have authority to affix the same to any
instrument requiring it, and when so affixed, it may be attested by his
signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE CHIEF FINANCIAL OFFICER
Section 11. The chief financial officer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as chief financial officer and of the financial condition
of the corporation.
<PAGE>
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The chief financial officer is, for the purpose of
executing any documents requiring the signature of the "Treasurer," deemed to be
the treasurer of the corporation.
THE ASSISTANT TREASURERS
Section 15. The assistant treasurers, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the chief financial officer, perform the
duties and exercise the powers of the chief financial officer and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. Every holder of shares in the corporation shall be entitled
to have a certificate, signed by, or in the name of the corporation by, the
chairman or vice-chairman of the board of directors, or the president or a
vice-president and the chief financial officer or an assistant treasurer, or the
secretary or an assistant secretary of the corporation, certifying the number of
shares and the class or series of shares owned by him in the corporation. If the
shares of the corporation are classi-
<PAGE>
fied or if any class of shares has two or more series, there shall appear on the
certificate either (l) a statement of the rights, preferences, privileges and
restrictions granted to or imposed upon each class or series of shares to be
issued and upon the holders thereof; or (2) a summary of such rights,
preferences, privileges and restrictions with reference to the provisions of the
articles and any certificates of determination establishing the same; or (3) a
statement setting forth the office or agency of the corporation from which
shareholders may obtain, upon request and without charge, a copy of the
statement referred to in item (l) heretofore. Every certificate shall have noted
thereon any information required to be set forth by the California General
Corporation Law and such information shall be set forth in the manner provided
by such law.
Section 2. Any or all of the signatures on the certificate may be
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 such
person were an officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim
<PAGE>
that may be made against it with respect to any such certificate alleged to have
been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
CLOSING OF TRANSFER BOOKS
Section 5. In order that the corporation may determine the shareholders
entitled to notice of any meeting or to vote 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 other lawful action, the board may fix, in
advance, a record date, which shall not be more than 60 nor less than 10 days
prior to the date of such meeting nor more than 60 days prior to any other
action.
A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the meeting
unless the board fixes a new record date for the adjourned meeting, but the
board shall fix a new record date if the meeting is adjourned for more than 45
days from the date set for the original meeting.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and
<PAGE>
to hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of California.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of the capital stock, subject to any provisions of the
articles of incorporation and the California General Corporation Law.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE>
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be the last
Saturday in April.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the date of its incorporation and the words "Corporate Seal,
California". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted (a) at any regular or special meeting of shareholders at
which a quorum is present or represented, by the affirmative vote of a majority
of the stock entitled to vote, provided notice of the proposed alteration,
amendment or repeal be contained in the notice of such meeting, or (b) by the
affirmative vote of a majority of the board of directors at any regular or
special meeting of the board. The board of directors shall not make or alter any
bylaw specifying a fixed number of directors or the maximum or minimum number of
directors and the directors shall not change a fixed board to a variable board
or vice versa in the bylaws. The board of directors shall not change
<PAGE>
a bylaw, if any, which requires a larger proportion of the vote of directors for
approval than is required by the California General Corporation Law.
ARTICLE XIII
DIRECTORS' ANNUAL REPORT
Section 1. The directors shall cause to be sent to the shareholders not
later than 120 days after the close of the fiscal year, an annual report which
shall include a balance sheet as of the closing date of the last fiscal year,
and an income statement of changes in financial position for said fiscal year.
Said annual report shall be accompanied by any report thereon of independent
accountants or, if there is no such report, the certificate of an authorized
officer of the corporation that such statements were prepared without audit from
the books and records of the corporation. This annual report is hereby waived
whenever the corporation shall have less than 100 shareholders as defined in
Section 605 of the California General Corporation Law. Except when said waiver
applies, the annual report shall be sent to the shareholder at least 15 (or if
sent by third-class mail, 35) days prior to the date of the annual meeting. The
annual report may be sent by third-class mail only if the corporation has
outstanding shares held by 500 or more persons (as determined by the provisions
of Section 605 of the California General Corporation Law) on the record date for
the shareholders' meeting. In addition to the financial statements included in
the annual report, the annual report of the corporation, if it has more than 100
shareholders as defined in Section 605 of the California General Corporation Law
and if it is not subject to the reporting requirements of Section 13 of the
Securities and Exchange Act of 1934, or exempt from such registration by Section
12(g)(2) of said act, shall also describe briefly: (1) Any transaction
(excluding compensation of
<PAGE>
officers and directors) during the previous fiscal year involving an amount in
excess of forty thousand dollars ($40,000) (other than contracts let at
competitive bids or services rendered at prices regulated by law) to which the
corporation or its parent or subsidiary was a party and in which any director or
officer of the corporation or of a subsidiary or (if known to the corporation or
its parent or subsidiary) any holder of more than 10 percent of the outstanding
voting shares of the corporation had a direct or indirect material interest,
naming such person and stating such person's relationship to the corporation,
the nature of such person's interest in the transaction and, where practicable,
the amount of such interest; provided, that in the case of a transaction with a
partnership of which such person is a partner, only the interest of the
partnership need be stated; and provided further that no such report need be
made in the case of transactions approved by the shareholders under subdivision
(a) of Section 310 of the California General Corporation Law. (2) The amount and
circumstances of any indemnification or advances aggregating more than ten
thousand dollars ($10,000) paid during the fiscal year to any officer or
director of the corporation pursuant to Section 317 of the California General
Corporation Law, provided, that no such report need be made in the case of
indemnification approved by the shareholders under paragraph (2) of subdivision
(e) of Section 317 of the California General Corporation Law.
<PAGE>
Exhibit 3.109
(CHANGES) BUREAU USE ONLY.
DOCKETING STATEMENT DSCB:15-134B (Rev 95) REVENUE - LABOR & INDUSTRY
OTHER
FILING FEE. NONE FILE CODE
FILED DATE
This form (file in triplicate) and all accompanying
documents shall be mailed to:
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
CORPORATION BUREAU
P.O. BOX 8722
HARRISBURG, PA 17105-8722
Part I. COMPLETE FOR EACH FILING:
Current name of entity or registrant affected by the submittal to which
this statement relates: (survivor or new entity if merger or
consolidation)
Vend-Rite Service Corporation
Entity number, if known: -NOTE: ENTITY NUMBER is the computer index number
assigned to an entfty upon initial filing in the Department of State.
Incorporation / qualification date in Pa.: 11/12/76 State of Incorporation:
Pennsylvania
Federal identification Number 23-2014419
Specified effective date, if any.,
Part II. COMPLETE FOR EACH FILING This statement is being submitted with (check
proper box): X_ Amendment. complete Section A only
- Merger, Consolidation or Division: complete Section B, C or D
- Consolidation: complete Section C
- Division: complete Section D
- Conversion: complete Section A and E only
- Statement of Correction: complete Section A only
- Statement of Termination: complete Section H
- Statement of Revival., complete Section G
- Dissolution by Shareholders or Incorporators before Commencement of Business:
complete Section F only
Part Ill. COMPLETE IF APPROPRIATE: The delayed effective date of the
accompanying submittals:
October 1,1998
<PAGE>
X Section A. CHANGES TO BE MADE TO THE ENTITY NAMED IN PART I.- (Check box/boxes
which pertain)
Name:
Registered Office:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Number & Street -RD number & box number city State zip County
see Purpose.-
see Stock: aggregate number of shares authorized (attach additional provisions, if any)
</TABLE>
- Term of Existence:
X Other Amended and Restated Articles
Section B. MERGER (Complete Section A if any changes to surviving entity):
MERGING ENTITIES ARE: (List only the merging entities-SURVIVOR IS LISTED IN
PART 1)
<TABLE>
<CAPTION>
<S> <C> <C>
1. Name:
Entity Number, if known: Inc. date in Pa.: State of Incorporation:
2. Name:
Entity Number, if known: Inc / Qual. date in Pa.: State of incorporation:
</TABLE>
Attach sheet containing above corporate information if there are additional
merging entities.
-Section C. CONSOLIDATION (NEW entity information should be completed
in Part L Also, complete and attach DOCKETING STATEMENT
DSCB:15-134A for the NEW entity formed.)
CONSOLIDATING ENTITIES ARE:
<TABLE>
<CAPTION>
<S> <C> <C>
1. Name:
Entity Number, if known: Inc. / Qual. date in Pa.: State of Incorporation:-
2. Name:
Entity Number, if known: Inc / Qual. date in Pa.: State of Incorporation:
</TABLE>
Attach sheet containing above corporate information if there are additional
consolidating entities.
<PAGE>
Section D. DIVISION (Forming NEW entity(s) named below. Also, complete and
attach DOCKETING STATEMENT DSCB:15-134A for EACH new entity
formed by division.)
1.
Entity Number Name
2.
Entity Number Name
Attach sheet if there are additional entities to be named.
CHECK ONE:
- Entity named in Part I survives. (Any changes, complete Section A)
- Entity named in Part / does not survive.
Section E. CONVERSION (Complete Section A)
CHECK ONE:
- Converted from nonprofit to profit
- Converted from profit to nonprofit
Section F. DISSOLVED BY SHAREHOLDERS OR INCORPORATORS BEFORE COMMENCEMENT OF
BUSINESS
Section G. STATEMENT OF REVIVAL Entity named in Part/ hereby revives
its charter or articles which were
forfeited by Proclamation or expired.
(Complete Section A if any changes
have been made to the revived entity.)
Section H. STATEMENT OF TERMINATION
(type of filing made) filed in the Department of State on month, date, year,
hour, if any is / are hereby terminated.
If merger, consolidation or division, list all entities involved, other than
that listed in Part /.
- 1.
Entity Number Name
2.
Entity Number Name
Attach sheet containing above information if there are additional entities
involved.
<PAGE>
Addendum
1. Changed from "To engage in and do any lawful act concerning any and all
business for which corporations may be incorporated under the Business
Corporation Law, May 5, 1933, P.L. 364, as amended" to "To engage in and
do any lawful act concerning any and all lawful businesses for which
corporations may be incorporated under the Business Corporation Law of
1988".
2. Authorized capital is reduced from 15,000 common stock, $1.00 par value,
to 1,000 shares of common stock, without par value.
I OF I
<PAGE>
EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION-FOR PROFIT
DSCB:15-1306/2102/2103/2702/2903/7102a (Rev 90)
Indicate type of domestic corporation (check one):
<TABLE>
<CAPTION>
<S> <C>
X Business-stock (15 Pa. C.S.Section.1306) ______Management (15 Pa. C.S.Section.2702)
_____Business-nonstock (15 Pa. C.S.Section.2102) ______Professional (15 Pa. C.S.Section.2903)
_____Business-statutory close (15 Pa. C.S.Section.2303) ______Cooperative (15 Pa. C.S.Section.2903)
</TABLE>
In compliance with the requirements of the applicable provisions of 15
Pa.C.S. (relating to corporations and unincorporated assosciations) the
undersigned, desiring to incorporate a corporation for profit hereby state(s)
that:
1. The name of the corporations is: VEND-RITE SERVICE CORPORATION____________
2. The (a) address of the corporations's initial registered office in this
Commonwealth or (b) name of
Its commercial registered office provider and the county of venue is:
(a) 1635 Market Street Philadelphia PA 19103 Philadelphia
-----------------------------------------------------------------
Number and Street City State Zip County
(b) c/o: CT CORPORATION SYSTEM
-----------------------------------------------------------------
Name of Commercial Registered Office Provider
For a corporation represented by a commercial registered office
provider, the county in (b) shall be deemed the county in which the
corporation is located for venue and official publication purposes.
3. The corporation is incorporated under the provision of the Business
Corporation Law of 1988.
4. The aggregate number of shares authorized is: 1,000 of common stock without
par value.
5. The existence of the corporation shall be perpetual.
6. The purpose for which the corporation is organized is to engage in and do any
lawful act concerning any and all lawful businesses for which corporations
may be incorporated under the Business Corporation Law of 1988.
<PAGE>
Exhibit 3.110
VEND-RITE SERVICE CORPORATION
* * * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located in the City of
Philadelphia, Commonwealth of Pennsylvania.
Section 2. The corporation may also have offices at such other places
both within and without the Commonwealth of Pennsylvania as the board of
directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. All meetings of the shareholders shall be held at such place
within or without the Commonwealth, as may be from time to time fixed or
determined by the board of directors. One or more shareholders may participate
in a meeting of the shareholders by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting may hear each other.
<PAGE>
Section 2. An annual meeting of the shareholders, commencing with the
year 1999, shall be held in the last week of June at 10:00 A.M.., when they
shall elect by a majority vote a board of directors, and transact such other
business as may properly be brought before the meeting.
Section 3. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called at any time by the president, or a majority of the
board of directors, or the holders of not less than twenty percent of all the
shares issued and outstanding and entitled to vote at the particular meeting,
upon written request delivered to the secretary of the corporation. Such request
shall state the purpose or purposes of the proposed meeting. Upon receipt of any
such request, it shall be the duty of the secretary to call a special meeting of
the shareholders to be held at such time, not more than sixty days thereafter,
as the secretary may fix. If the secretary shall neglect to issue such call, the
person or persons making the request may issue the call.
Section 4. Written notice of every meeting of the shareholders,
specifying the place, date and hour and the general nature of the business of
the meeting, shall be served upon or mailed, postage prepaid, at least five days
prior to the meeting, unless a greater period of notice is required by statute,
to each shareholder entitled to vote thereat.
Section 5. Except as otherwise provided by law the officer having charge
of the transfer books for shares of the corporation shall prepare and make a
complete list of the shareholders entitled to vote at the meeting, arranged in
alphabetical order, with the address and the number of shares held by each. Such
list shall be produced and kept open at the
<PAGE>
time and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting.
Section 6. Business transacted at all special meetings of shareholders
shall be limited to the purposes stated in the notice.
Section 7. The holders of a majority of the issued and outstanding
shares entitled to vote, present in person or represented by proxy, shall be
requisite and shall constitute a quorum at all meetings of the shareholders for
the transaction of business, except as otherwise provided by statute or by the
articles of incorporation or by these by-laws. If, however, any meeting of
shareholders cannot be organized because a quorum has not attended, the
shareholders entitled to vote thereat, present in person or by proxy, shall have
power, except as otherwise provided by statute, to adjourn the meeting to such
time and place as they may determine, but in the case of any meeting called for
the election of directors such meeting may be adjourned only from day to day or
for such longer periods not exceeding fifteen days each as the holders of a
majority of the shares present in person or by proxy shall direct. Those
shareholders entitled to vote who attend a meeting called for the election of
directors that has been previously adjourned for lack of a quorum, although less
than a quorum, shall nevertheless constitute a quorum for the purpose of
electing directors.
Those shareholders entitled to vote who attend a meeting of
shareholders that has been previously adjourned for one or more periods
aggregating at least fifteen days because of an absence of a quorum, although
less than a quorum, shall nevertheless constitute a quorum for the purpose of
acting upon any matter set forth in the notice of the meeting if the notice
states that those shareholders who attend the adjourned meeting shall
<PAGE>
nevertheless constitute a quorum for the purpose of acting upon the matter. At
any adjourned meeting at which a quorum shall be present or represented any
business may be transacted which might have been transacted at the meeting as
originally notified.
Section 8. When a quorum is present or represented at any meeting, the
vote of the holders of a majority of the shares having voting powers, present in
person or represented by proxy, shall decide any question brought before such
meeting, unless the question is one upon which, by express provision of the
statutes or of the articles of incorporation or of these by-laws, a different
vote is required in which case such express provision shall govern and control
the decision of such question.
Section 9. Each shareholder shall at every meeting of the shareholders
be entitled to one vote in person or by proxy for each share having voting power
held by such shareholder. A proxy, unless coupled with an interest, shall be
revocable at will, notwithstanding any other agreement or any provision in the
proxy to the contrary, but the revocation of a proxy shall not be effective
until written notice thereof has been given to the secretary of the corporation.
An unrevoked proxy shall not be valid after three years from the date of its
execution unless a longer time is expressly provided therein. A proxy shall not
be revoked by the death or incapacity of the maker unless, before the vote is
counted or the authority is exercised, written notice of the death or incapacity
is given to the secretary of the corporation.
Section 10. In advance of any meeting of shareholders, the board of
directors may appoint judges of election, who need not be shareholders, to act
at such meeting or any adjournment thereof. If judges of election be not so
appointed, the chairman of any such meeting may and, on the request of any
shareholder or his proxy, shall make such
<PAGE>
appointment at the meeting. The number of judges shall be one or three. If
appointed at a meeting on the request of one or more shareholders or proxies,
the majority of shares present and entitled to vote shall determine whether one
or three judges are to be appointed. No person who is a candidate for office
shall act as a judge. The judges of election shall do all such acts as may be
proper to conduct the election or vote with fairness to all shareholders, and
shall make a written report of any matter determined by them and execute a
certificate of any fact found by them, if requested by the chairman of the
meeting or any shareholder or his proxy. If there be three judges of election
the decision, act or certificate of a majority, shall be effected in all
respects as the decision, act or certificate of all.
Section 11. Any action which may be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders who would
be entitled to vote at a meeting for such purpose and shall be filed with the
secretary of the corporation.
Any action which may be taken at a meeting of the shareholders or of a
class of shareholders may be taken without a meeting, if a consent or consents
in writing to such action, setting forth the action so taken, shall be signed by
shareholders entitled to cast such a percentage of the number of votes which all
such shareholders are entitled to cast thereon as may be authorized in the
articles of incorporation and filed with the secretary of the corporation. Such
action shall not become effective until after at least ten days' written notice
of such action shall have been given to each shareholder of record entitled to
vote thereon who has not consented thereto.
Section 12. In each election for directors, every shareholder entitled
to vote shall have the right to multiply the number of votes to which he may be
entitled by the total
<PAGE>
number of directors to be elected in the same election, and he may cast the
whole number of such votes for one candidate or he may distribute them among any
two or more candidates. The candidates receiving the highest number of votes up
to the number of directors to be elected shall be elected.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be 3. The directors shall be elected at the annual meeting of the
shareholders, except as provided in Section 2 of this article, and each director
shall hold office until his successor is elected and qualified. Directors need
not be shareholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors shall be filled by a majority of
the remaining number of the board, though less than a quorum and each person so
elected shall be a director for the balance of the unexpired term.
Section 3. The business of the corporation shall be managed by its 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 articles of
incorporation or by these by-laws directed or required to be exercised and done
by the shareholders.
<PAGE>
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the Commonwealth of
Pennsylvania.
One or more directors may participate in a meeting of the board or of a
committee of the board by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the shareholders at
the meeting at which such directors were elected and no notice of such meeting
shall be necessary to the newly elected directors in order legally to constitute
the meeting, provided a majority of the whole board shall be present. In the
event of the failure of the shareholders to fix the time or place of such first
meeting of the newly elected board of directors, or in the event such meeting is
not held at the time and place so fixed by the shareholders, the meeting may be
held at such time and place as shall be specified in a notice given as
hereinafter provided for such meetings of the board of directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by resolution of at least a majority of the board at a duly convened
meeting, or by unanimous written consent.
Section 7. Special meetings of the board may be called by the president
on 10 days' notice to each director, either personally or by mail or by
telegram; special meetings shall
<PAGE>
be called by the president or secretary in like manner and on like notice on the
written request of two directors.
Section 8. At all meetings of the board a majority of the directors in
office shall be necessary to constitute a quorum for the transaction of
business, and the acts of a majority of the directors present at a meeting at
which a quorum is present shall be the acts of the board of directors, except as
may be otherwise specifically provided by statute or by the articles of
incorporation. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. If all the directors shall severally or collectively consent
in writing to any action to be taken by the corporation, such action shall be as
valid a corporate action as though it had been authorized at a meeting of the
board of directors.
COMMITTEES
Section 10. The board of directors may, by resolution adopted by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board 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. Any
such committee to the extent provided in such resolution or in these by-laws,
shall have and exercise the authority of the board of directors in the
management of the business and affairs of the corporation except that a
committee shall not have any power or authority as to the following: The
submission to shareholders of
<PAGE>
any action requiring approval of shareholders under this subpart; the creation
or filling of vacancies in the board of directors; the adoption, amendment or
repeal of the bylaws; the amendment or repeal of any resolution of the board
that by its terms is amendable or repealable only by the board; action on
matters committed by the bylaws or resolution of the board of directors to
another committee of the board. In the absence or disqualification of any member
of such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another director to act at the meeting in the
place of any such absent or disqualified member. The committees shall keep
regular minutes of the proceedings and report the same to the board when
required.
COMPENSATION OF DIRECTORS
Section 11. The board of directors shall have the authority to fix the
compensation of directors for their services as directors and a director may be
a salaried officer of the corporation.
ARTICLE IV
NOTICES
Section 1. Notices to directors and shareholders shall be given to the
person either personally or by sending a copy thereof by first class or express
mail, postage prepaid, or by telegram (with messenger service specified), telex
or TWX (with answerback received) or
<PAGE>
courier service, charges prepaid, or by telecopier, to his address (or to his
telex, TWX, telecopier or telephone number) appearing on the books of the
corporation or, in the case of directors, supplied by him to the corporation for
the purpose of notice. If the notice is sent by mail, telegraph or courier
service, it shall be deemed to have been given to the person entitled thereto
when deposited in the United States mail or with a telegraph office or courier
service for delivery to that person or, in the case of telex or TWX, when
dispatched. A notice of meeting shall specify the place, day and hour of the
meeting and any other information required by law. When a meeting of
shareholders is adjourned, it shall not be necessary to give any notice of the
adjourned meeting or of the business to be transacted at an adjourned meeting,
other than by announcement at the meeting at which the adjournment is taken,
unless the board fixes a new record date for the adjourned meeting.
Section 2. Whenever any written notice is required to be given under
the provisions of law or the articles or bylaws, a waiver thereof in writing,
signed by the person or persons entitled to the notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of the notice.
Except as otherwise required by this section, neither the business to be
transacted at, nor the purpose of, a meeting need be specified in the waiver of
notice of the meeting. In the case of a special meeting of shareholders, the
waiver of notice shall specify the general nature of the business to be
transacted. Attendance of a person at any meeting shall constitute a waiver of
notice of the meeting except where a person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting was not lawfully called or convened.
<PAGE>
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a secretary and a treasurer. The
president and secretary shall be natural persons of full age; the treasurer may
be a corporation but, if a natural person, shall be of full age. The board of
directors may also choose vice-presidents and one or more assistant secretaries
and assistant treasurers. Any number of the aforesaid offices may be held by the
same person.
Section 2. The board of directors, immediately after each annual meeting
of shareholders, shall elect a president, who may, but need not be a director,
and the board shall also annually choose a secretary and a treasurer who need
not be members of the board.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
<PAGE>
Section 6. If required by the board of directors, an officer shall give
the corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
THE PRESIDENT
Section 7. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 8. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 9. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president, and shall perform
<PAGE>
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 10. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the executive committee
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall keep in safe custody
the seal of the corporation and, when authorized by the board of directors,
affix the same to any instrument requiring it and, when so affixed, it shall be
attested by his signature or by the signature of an assistant secretary.
Section 11. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
<PAGE>
THE TREASURER AND ASSISTANT TREASURERS
Section 12. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 13. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE VI
CERTIFICATES OF SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated if so provided for in the by-laws. The
certificates of shares of the
<PAGE>
corporation shall be numbered and registered in a share register as they are
issued. They shall exhibit the name of the registered holder and the number and
class of shares and the series, if any, represented thereby and the par value of
each share or a statement that such shares are without par value as the case may
be. If more than one class of shares is authorized, the certificate shall state
that the corporation will furnish to any shareholder, upon request and without
charge a full or summary statement of the designations, preferences,
limitations, and relative rights of the shares of each class authorized to be
issued, and the variations thereof between the shares of each series, and the
authority of the board of directors to fix and determine the relative rights and
preferences of subsequent series. Within a reasonable time after the issuance or
transfer of uncertificated stock, the corporation shall send to the registered
owner thereof a written notice containing the information required to be set
forth or stated on certificates pursuant to Section 1528 or a statement that the
corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 2. Every share certificate shall be signed by the president or
vice-president and the secretary or an assistant secretary or the treasurer or
an assistant treasurer and shall be sealed with the corporate seal which may be
facsimile, engraved or printed.
Section 3. Where a certificate is signed by a transfer agent or an
assistant transfer agent or a registrar, the signature of any such president,
vice-president, treasurer, assistant treasurer, secretary or assistant secretary
may be facsimile. In case any officer or officers who have signed, or whose
facsimile signature or signatures have been used on, any such
<PAGE>
certificate or certificates shall cease to be such officer or officers of the
corporation, whether because of death, resignation or otherwise, before such
certificate or certificates have been delivered by the corporation, such
certificate or certificates may nevertheless be adopted by the corporation and
be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have been
used thereon had not ceased to be such officer or officers of the corporation.
LOST CERTIFICATES
Section 4. The board of directors shall direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, destroyed or
wrongfully taken, upon the making of an affidavit of that fact by the person
claiming the share certificate to be lost, destroyed or wrongfully taken. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, destroyed or wrongfully taken,
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and give the corporation a bond in such sum
as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate or certificates alleged to have been
lost, destroyed or wrongfully taken.
<PAGE>
TRANSFERS OF SHARES
Section 5. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
CLOSING OF TRANSFER BOOKS
Section 6. The board of directors may fix a time, not more than ninety
days, prior to the date of any meeting of shareholders or the date fixed for the
payment of any dividend or distribution or the date for the allotment of rights
or the date when any change or conversion or exchange of shares will be made or
go into effect, as a record date for the determination of the shareholders
entitled to notice of and to vote at any such meeting or entitled to receive
payment of any such dividend or distribution or to receive any such allotment of
rights or to exercise the rights in respect to any such change, conversion or
exchange of shares. In such case only such shareholders as shall be shareholders
of record on the date so fixed shall be entitled to notice of and to vote at
such meeting or to receive payment of such dividend or to receive such allotment
of rights or to exercise such rights, as the case may be, notwithstanding any
transfer of any shares on the books of the corporation after any record date so
fixed. The board of directors may close the books of the corporation against
transfers of shares during the whole or any part of such period and in such case
written or
<PAGE>
printed notice thereof shall be mailed at least ten days before the closing
thereof to each shareholder of record at the address appearing on the records of
the corporation or supplied by him to the corporation for the purpose of notice.
REGISTERED SHAREHOLDERS
Section 7. The corporation shall be entitled to treat the holder of
record of any share or shares as the holder in fact thereof and shall not be
bound to recognize any equitable or other claim to or interest in such share on
the part of any other person, and shall not be liable for any registration or
transfer of shares which are registered or to be registered in the name of a
fiduciary or the nominee of a fiduciary unless made with actual knowledge that a
fiduciary or nominee of a fiduciary is committing a breach of trust in
requesting such registration or transfer, or with knowledge of such facts that
its participation therein amounts to bad faith.
ARTICLE VII
GENERAL PROVISIONS
DISTRIBUTIONS
Section 1. Distributions upon the shares of the corporation, subject to
the provisions of the articles of incorporation, if any, may be declared by the
board of directors at any regular or special meeting, pursuant to law.
Distributions may be paid in cash, in property, or in its shares, subject to the
provisions of the articles of incorporation.
<PAGE>
Section 2. Before payment of any distributions, there may be set aside
out of any funds of the corporation available for distributions such sum or sums
as the directors from time to time, in their absolute discretion, think proper
as a reserve or reserves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
FINANCIAL REPORT TO SHAREHOLDERS
Section 3. The directors shall cause to be sent to the shareholders,
within 120 days after the close of the fiscal year, a financial statement as of
the closing date of the preceding fiscal year. Such financial statement shall
include a balance sheet as of the close of such year, together with statements
of income and expenses for such year, prepared so as to present fairly the
corporation's financial condition and the results of its operations.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 5. The fiscal year of the corporation shall end on the last
Saturday of April.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Pennsylvania". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed by a
majority vote of the shareholders entitled to vote thereon at any regular or
special meeting duly convened after notice to the shareholders of that purpose
or by a majority vote of the members of the board of directors at any regular or
special meeting duly convened after notice to the directors of that purpose,
subject always to the power of the shareholders to change such action by the
directors.
<PAGE>
FEDERAL IDENTIFICATION NO.
Examiner The Commonwealth of Massachusetts
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
RESTATED ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B, Section 74)
Name
Approved We, Kathleen M. Delaney, President / Vice President, and Mark
D. Director, Clerk / Assistant Clerk of Woburn Vending, Inc.
located at 11 Wheeling Avenue, Woburn, MA 01801
(Street address of corporation Massachusetts)
do hereby certify that the following Restatement of the Articles of Organization
was duly adopted at a meeting held on September 25 1998
by a vote of the directors/or:
100 shares of Common Stock of 100 shares outstanding,
(type, class & series, if any)
shares of of shares outstanding, and
(type, class & series, if any)
shares of of shares outstanding,
(type, class & series, if any)
"being at least a majority of each type, class or series outstanding and
entitled to vote thereon:
C / / ARTICLE I
P / / The name of the corporation is:
M / / Woburn Vending, Inc.
R.A. / /
ARTICLE II
The purpose of the corporation is to engage in the following business
activities:
a) To buy, sell and manufacture cigars, cigarettes and tobacco products,
candies, confections and soda fountains supplies of every kind, and to buy,
own, sell or lease real estate necessary to carry out the objects of the
business.
b) To manufacture, purchase, acquire and hold vending machines and any
machinery and applications incidental to carrying out a vending machine
business.
c) To acquire goodwill, property and assets of any other person or corporation
engaged in a similar line of business.
d) To carry on any business or other activity which may be lawfully carried on
by a corporation organized under the laws of the Business Corporation Law
of the Commonwealth of Massachusetts, whether or not related to those
referred to in the preceding paragraph.
*Delete the inapplicable words. "Delete the inapplicable clause.
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on separate 8 112 x 11
sheets of paper with a left margin of at least I inch. Additions to
more than one article may be made on a P.C. single sheet so long as
each article requiring each addition is clearly indicated
<PAGE>
ARTICLE III
State the total number of shares and par value, if any, of each class of stock
which the corporation is authorized to issue:
WITHOUT PAR VALUE WITH PAR VALUE
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PARVALUE
Common: 1, 000 Common:
Preferred: 0 Preferred:
ARTICLE IV
If more than one class of stock is authorized, state a distinguishing
designation for each class. Prior to the issuance of any shares of a class, if
shares of another class are outstanding, the corporation must provide a
description of the preferences, voting powers, qualifications, and special or
relative rights or privileges of that class and of each other class of which
shares are outstanding and of each series then established within any class.
None
ARTICLE V
The restrictions, if any, imposed by the Articles of Organization upon the
transfer of shares of stock of any class are:
None
ARTICLE VI
"Other lawful provisions, if any, for the conduct and regulation of the business
and affairs of the corporation, for its voluntary dissolution, or for limiting,
defining, or regulating the powers of the corporation, or of its directors or
stockholders, or of any class of stockholders:
The existence of the Corporation shall be perpetual.
**If there are no provisions state "None".
Note., The preceding six (6) articles are considered to be permanent and may
ONLY be changed by filing appropriate Articles of AmendmenL
<PAGE>
ARTICLE VII
The effective date of the restated Articles of Organization of the corporation
shall be the date approved and filed by the Secretary of the Commonwealth. If a
later effective date is desired, specify such date which shall not be more than
thirty days after the date of filing. October 1, 1998
ARTICLE VIII
The information contained in ARTICLE VIH is not a permanent part of the Articles
of Organization.
a. The street address (post office boxes are not acceptable) of the principal
office of the corporation in Massachusetts is: 11 Wheeling Avenue, Woburn,
MA 01801
b. The name, residential address and post office address of each director and
officer of the corporation is as follows:
<TABLE>
<CAPTION>
NAME RESIDENTIAL ADDRESS POST OFFICE ADDRESS
<S> <C> <C> <C>
President: David MacIsaac 11 Cabot Street 11 Wheeling Avenue
Milton, MA 02186 Woburn, MA 01801
Treasurer: Toby Levine 463 Commonwealth Ave. 11 Wheeling Avenue
Boston, MA 02215 Woburn, MA 01801
Clerk: Veronica Travers 3 Hawthorne Village Rd. 11 Wheeling Avenue
Nashua, NH 03062 Woburn, MA 01801
VP: Kathleen M. Delaney 3117 Winnett Road 1025 Thomas Jefferson St, NW
Chevy Chase, MD 20815 Ste. 600 East
Washington, DC 20007
VP &
Asst. Clerk: Mark D. Director 10101 Greyhorse Ct. 1025 Thomas Jefferson St, NW
Potomac, MD 20854 Ste. 600 East
Washington, DC 20007
Directors: See 1 in Addendum
</TABLE>
c. The fiscal year (i.e., tax year) of the corporation shall end on the last
day of the month of. April
d. The name and business address of the resident agent, if any, of the
corporation is: C T Corporation System, 2 Oliver Street, Boston, MA 02109
**We further certify that the foregoing Restated Articles of Organization
affect no amendments to the Articles of Organization of the corporation as
heretofore amended, except amendments to the following articles. Briefly
describe amendments below:
SIGNED UNDER THE PENALTIES OF PERJURY, this 25th day of September 1998
/s/ Kathleen M. Delaney President / Vice President
-------------------------- --------------
Kathleen M. Delaney
/s/ Mark D. Director Clerk / Assistant Clerk
-------------------------- ---------------
Mark D. Director
*Delete the inapplicable words. "If there are no amendments, state "None".
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
RESTATED ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B, Section 74)
I hereby approve the within Restated Articles of Organization and, the filing
fee in the amount of S having been paid, said articles are deemed to have been
filed with me this - day of
, 19 -
Effective date:
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
C T CORPORATION SYSTEM
2 Oliver Street
Boston, Massachusetts 02109
Telephone: (617) 482-4420
<PAGE>
Addendum
Name: Mark D. Director
Residential address: 10101 Greyhorse Court, Potomac, MD 20854
Post Office address: 1025 Thomas Jefferson St., NW Ste. 600 East,
Washington, DC 20007
Name: Donald H. Platt
Residential address: 15606 Blackberry Driv, North Potomac, MD 20878
Post Office address: 1025 Thomas Jefferson St., NW, Ste. 600 East,
Washington, DC 20007
Name: Lawrence Levine
Residential address: 40 South Point Lane, #168, Ipswich, MA 01938-1048
Post Office address: 11 Wheeling Avenue, Woburn, NIA 0 1801
<PAGE>
Exhibit 3.112
WOBURN VENDING, INC.
* * * *
AMENDED AND RESTATED
B Y - L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The principal office shall be located in Woburn,
Massachusetts.
Section 2. The corporation may also have offices at such other places
both within and without the Commonwealth of Massachusetts as the board of
directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
ANNUAL MEETINGS OF STOCKHOLDERS
Section 1. All meetings of stockholders for the election of directors
shall be held in Woburn, State of Massachusetts, at such place as may be fixed
from time to time by the board of directors.
<PAGE>
Section 2. Annual meetings of stockholders, commencing with the year
1999, shall be held in the last week of June at 10:00A.M., at which they shall
elect by a plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be given to each stockholder entitled
to vote thereat not less than seven days before the date of the meeting.
The notice shall also set forth the purpose or purposes for which the
meeting is called.
ARTICLE III
SPECIAL MEETINGS OF STOCKHOLDERS
Section 1. Special meetings of stockholders for any purpose other than
the election of directors may be held at such time and place within or without
the Commonwealth of Massachusetts as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Special meetings of stockholders may be called at any time,
for any purpose or purposes, by the board of directors or by such other persons
as may be authorized by law.
Section 3. Written or printed notice of a special meeting of
stockholders, stating the time, place and purpose or purposes thereof, shall be
given to each stockholder entitled to vote thereat, at least seven days before
the date fixed for the meeting.
ARTICLE IV
<PAGE>
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the articles of
organization. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders present in person or
represented by proxy shall have 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 such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the
stockholders unless the vote of a greater number of shares of stock is required
by law or the articles of organization.
Section 3. Each outstanding share of stock, having voting power, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
stockholders. A stockholder may vote either in person or by proxy executed in
writing by the stockholder or by his duly authorized attorney-in-fact.
Section 4. Any action required to be taken at a meeting of the
stockholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the stockholders entitled
to vote with respect to the subject matter thereof.
<PAGE>
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be 3. Directors need not be
residents of the Commonwealth of Massachusetts nor stockholders of the
corporation. The directors, other than the first board of directors, shall be
elected at the annual meeting of the stockholders, and each director elected
shall serve until the next succeeding annual meeting and until his successor
shall have been elected and qualified. The first board of directors shall hold
office until the first annual meeting of stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the number of directors may be filled by a majority of the directors
then in office, though less than a quorum, and the directors so chosen shall
hold office until the next annual election and until their successors are duly
elected and shall qualify.
Section 3. The business affairs of the corporation shall be managed by
its 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 articles of
organization or by these by-laws directed or required to be exercised or done by
the stockholders.
Section 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the
Commonwealth of Massachusetts, at such place or places as they may from time to
time determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to
<PAGE>
establish reasonable compensation of all directors for services to the
corporation as directors, officers or otherwise.
<PAGE>
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the Commonwealth of Massachusetts.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on 2 days' notice to each director, either personally or by mail
or by telegram; special meetings shall be called by the president or secretary
in like manner and on like notice on the written request of two directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 board
of directors need be specified in the notice or waiver of notice of such
meeting.
<PAGE>
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater number is required by law or by the
articles of organization. The act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
unless the act of a greater number is required by statute or by the articles of
organization. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors entitled to
vote with respect to the subject matter thereof.
Section 8. Unless the articles of organization or the by-laws otherwise
provide, the members of the board of any corporation or any committee designated
thereby may participate in a meeting of such board or committee by means of a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a meeting.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board of directors, by resolution adopted by a majority
of the number of directors fixed by the by-laws or otherwise, may designate two
or more directors to constitute an executive committee, which committee, to the
extent provided in such resolution, shall have and exercise all of the authority
of the board of directors in the management of the corporation, except
<PAGE>
as otherwise required by law. Vacancies in the membership of the committee shall
be filled by the board of directors at a regular or special meeting of the board
of directors. The executive committee shall keep regular minutes of its
proceedings and report the same to the board when required.
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of organization or of these by-laws, notice is required to be given to
any director or stockholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
Section 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
organization or these by-laws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
ARTICLE IX
OFFICERS
<PAGE>
Section 1. The initial officers shall be elected by the incorporators
and are set forth in the articles of organization. The officers of the
corporation shall be a president, a treasurer and a clerk. The president shall
be chosen by the board of directors. The treasurer and the clerk shall be
elected by the shareholders. The board of directors may choose one or more
vice-presidents and one or more assistant treasurers and assistant clerks. None
of the officers need be members of the board nor stockholders of the
corporation.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose the officers for the ensuing year.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active
<PAGE>
management of the business of the corporation and shall see that all orders and
resolutions of the board of directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE CLERK AND ASSISTANT CLERKS
Section 9. The clerk shall be a resident of the Commonwealth of
Massachusetts, provided however, he need not be such resident, if, and as long
as, the corporation shall appoint and maintain a resident agent for service of
process within the Commonwealth. The clerk shall attend all meetings of the
board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to
<PAGE>
be given, notice of all meetings of the stockholders and special meetings of the
board of directors, and shall perform such other duties as may be prescribed by
the board of directors or president, under whose supervision he shall be. He
shall have custody of the record books and of the corporate seal of the
corporation and he, or an assistant clerk, shall have authority to affix the
seal to any instrument requiring it and when so affixed, it may be attested by
his signature or by the signature of such assistant clerk. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature. The office of the
clerk shall be deemed to be the office of the secretary of the corporation
whenever such office is required for any purpose; and, whenever the signature of
the secretary of the corporation is required on any instrument, or document, by
the laws of the United States, or of any other state, or in any other manner
whatsoever, the clerk shall have authority to affix his signature in such
capacity.
Section 10. The assistant clerk, or if there be more than one, the
assistant clerks in the order determined by the board of directors, shall, in
the absence or disability of the clerk, perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
<PAGE>
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates or shall be uncertificated shares. Each certificate shall be signed
by the chairman of the board of directors, the
president or a vice-president and the treasurer or an assistant treasurer of the
corporation, and may be sealed with the seal of the corporation or a facsimile
thereof. When the corporation is authorized to issue shares of more than one
class there shall be set forth upon the face or back of the certificate,
<PAGE>
or the certificate shall have a statement that the corporation will furnish to
any stockholder upon request and without charge, a full statement of the
designations, preferences, limitations, and relative rights of the shares of
each class authorized to be issued and, if the corporation is authorized to
issue any preferred or special class in series, the variations in the relative
rights and preferences between the shares of each such series so far as the same
have been fixed and determined and the authority of the board of directors to
fix and determine the relative rights and preferences of subsequent series.
Any shares subject to any restriction on transfer shall have the
restriction noted conspicuously on the certificate and shall also set forth on
the face or back of the certificate either the full text of the restriction, or
a statement of the existence of such restriction and a statement that the
corporation will furnish a copy thereof to the holder of such certificate upon
written request and without charge.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 19, 25-28 or 41A or a statement that the
corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 2. The signatures of the officers upon a certificate may be
facsimiles if the certificate is countersigned by a transfer agent, or
registered by a registrar, other than the corporation itself or an employee of
the corporation. In case any officer who has signed or whose facsimile signature
has been placed upon such certificate shall have ceased to be such officer
before such certificate is
<PAGE>
issued, it may be issued by the corporation with the same effect as if he were
such officer at the date of its issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
FIXING OF RECORD DATE
<PAGE>
Section 5. The board of directors may fix in advance a time which shall
be not more than sixty days before the date of any meeting of stockholders or
the date for the payment of any dividend or the making of any distribution to
stockholders or the last day on which the consent or dissent of stockholders may
be effectively expressed for any purpose, as the record date for determining the
stockholders having the right to notice of and to vote at such meeting and any
adjournment thereof or the right to receive such dividend or distribution or the
right to give such consent or dissent, and in such case only stockholders of
record on such record date shall have such right, notwithstanding any transfer
of stock on the books of the corporation after the record date; or without
fixing such record date the board of directors may for any of such purposes
close the transfer books for all or any part of such period.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Massachusetts.
ARTICLE XI
GENERAL PROVISIONS
<PAGE>
DIVIDENDS
Section 1. Subject to the provisions of the articles of organization
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of the capital stock, subject to any provisions of the
articles of organization.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall end on the last
Saturday of April.
<PAGE>
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Massachusetts". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
<PAGE>
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted (a) at any regular or special meeting of stockholders at
which a quorum is present or represented, by the affirmative vote of a majority
of the stock entitled to vote, provided notice of the proposed alteration,
amendment or repeal be contained in the notice of such meeting, or (b) by the
affirmative vote of a majority of the board of directors at any regular or
special meeting of the board, except with respect to any provision which by law,
the articles of organization or the by-laws requires action by the stockholders,
and provided further that any by-law adopted by the directors may be amended or
repealed by the stockholders.
<PAGE>
Exhibit 3.113
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
USOPN, INC.
USOPN, INC., a corporation organized and existing under the laws of the
State of Delaware, hereby certifies as follows:
1. The name of the corporation is USOPN, INC. and the name under
which the corporation was originally incorporated is FCI
ACQUISITION CORPORATION. The date of filing of its original
Certificate of Incorporation with the Secretary of State was
October 24, 1996.
2. This Amended and Restated Certificate of Incorporation
restates and integrates and further amends the Certificate of
Incorporation of this corporation in its entirety.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended and restated hereby
to read as herein set forth in full:
l. The name of the corporation is USOPN, INC.
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation
Law of Delaware and in general, to possess and exercise all
the powers and privileges granted by the General Corporation
Law of Delaware or by any other law of Delaware or by this
Certificate of Incorporation together with any powers
incidental thereto, so far as such powers and privileges are
necessary
<PAGE>
or convenient to the conduct, promotion or attainment of the
business or purposes of the corporation.
4. The total number of shares of stock which the corporation
shall have authority to issue is: One Thousand (1,000); all of
such shares shall be without par value.
5. The corporation is to have perpetual existence.
6. The corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
7. 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 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 any improper
personal benefit.
4. This Amended and Restated Certificate of Incorporation was duly
adopted by unanimous written consent of the stockholders in accordance
with the applicable provisions of Section 228, 242 and 245 of the
General Corporation Law of the State of Delaware.
5. This Amended and Restated Certificate of Incorporation shall be
effective on October 1, 1998.
<PAGE>
IN WITNESS WHEREOF, said USOPN, Inc. has caused this Amended and Restated
Certificate of Incorporation to be signed by Mark D. Director, its Vice
President, this Twenty-Fifth day of September, 1998.
USOPN, Inc.
By: /s/ Mark D. Director
---------------------
Vice President
<PAGE>
Exhibit 3.114
USOPN, INC.
* * * * *
AMENDED AND RESTATED
BY-LAWS
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Washington, District of Columbia at
such place as may be fixed from time to time by the board of directors, or at
such other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the
notice of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of Delaware, as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year1999,
shall be held during the first week of June at 10:00 a.m. or at such other date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than 10 nor more than 60 days before the date of the meeting.
Section 4. 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
<PAGE>
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than 10 nor more than 60 days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present
or represented at any meeting of the stockholders, the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have 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 such adjourned meeting at which a quorum shall be present or represented
any business may be transacted which might have been transacted at the
meeting as originally notified. 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 9. When a quorum is present at any meeting, the vote of the holders
of a majority of the stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the
question is one upon which by express provision of the statutes or of the
certificate of incorporation, a different vote is required in which case such
express provision shall govern and control the decision of such question.
<PAGE>
Section 10. 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, but no proxy shall be
voted on after three years from its date, unless the proxy provides for a
longer period.
Section 11. 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 thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be 3. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each
director elected shall hold office until his successor is elected and
qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the
next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then
an election of directors may be held in the manner provided by statute. If,
at the time of filling any vacancy or any newly created directorship, the
directors then in office shall constitute less than a majority of the whole
board (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least ten percent of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to
be held to fill any such vacancies or newly created directorships, or to
replace the directors chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such
<PAGE>
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.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of
the stockholders to fix the time or place of such first meeting of the newly
elected board of directors, or in the event such meeting is not held at the
time and place so fixed by the stockholders, the meeting may be held at such
time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 10 days' notice to each director, either personally or by mail or by
facsimile communication; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors unless the board consists of only one director; in which case
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of the sole director.
Section 8. At all meetings of the board, a majority of directors shall
constitute a quorum for the transaction of business and the act of a majority
of the directors present at any meeting at which there is a quorum shall be
the act of the board of directors, except as may be otherwise specifically
provided by statute or by the certificate of incorporation. If a quorum shall
not be present at any meeting of the board of directors the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 9. 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 or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
<PAGE>
Section 10. Unless otherwise restricted by the certificate of incorporation
or these by-laws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board 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.
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 the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
General Corporation Law of Delaware to be submitted to stockholders for approval
or (ii) adopting, amending or repealing any by-law of the corporation. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of incorporation
or these by-laws, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
<PAGE>
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of incorporation
or by law, any director or the entire board of directors may be removed, with or
without cause, by the holders of a majority of shares entitled to vote at an
election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by facsimile telecommunication.
Section 2. Whenever any notice is required to be given under the provisions
of the statutes or of the certificate of incorporation or of these by-laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurers. Any number of offices may be held by the same
person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 3. 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 powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation shall
be fixed by the board of directors.
<PAGE>
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of
the corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his inability
or refusal to act, the vice-president (or in the event there be more than one
vice-president, the vice-presidents in the order designated by the directors, or
in the absence of any designation, then in the order of their election) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings
of the meetings of the corporation and of the board of directors in a book to
be kept for that purpose and shall perform like duties for the standing
committees when required. He shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the board of directors,
and shall perform such other duties as may be prescribed by the board of
directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring
it and when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The board of directors may give
general authority to any other officer to affix the seal of the corporation
and to attest the affixing by his signature.
<PAGE>
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and
with such surety or sureties as shall be satisfactory to the board of
directors for the faithful performance of the duties of his office and for
the restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control
belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the treasurer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. 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 or vice-chairman of the board
of directors, or the president or a vice-president, and by the treasurer- or
an assistant treasurer, or the secretary or an assistant secretary of the
corporation.
<PAGE>
Section 2. Any of or all the signatures on a certificate may be 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 were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any
certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates
or uncertificated shares, the board of directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. 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. A
<PAGE>
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.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and
shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting, and
at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
<PAGE>
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be the last Saturday in
April.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new by-laws
may be adopted by the stockholders or by the board of directors, when such power
is conferred upon the board of directors by the certificate of incorporation at
any regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors if notice of
such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal
by-laws is conferred upon the board of directors by the certificate of
incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
<PAGE>
EXHIBIT 5.1
Washington
WILMER, CUTLER & PICKERING Baltimore
2445 M STREET, N.W. New York
WASHINGTON, D.C. 20037-1420 London
_________ Brussels
Berlin
TELEPHONE (202) 663-6000
FACSIMILE (202) 663-6363
November 5, 1998
U.S. Office Products Company
1025 Thomas Jefferson Place, N.W.
Suite 600E
Washington, D.C. 20007
Re: U.S. Office Products Company Exchange Offer Registration
Statement on Form S-4
Ladies and Gentlemen:
We have acted as special counsel to U.S. Office Products Company, a
Delaware corporation (the "Company"), in connection with the preparation and
filing of a Registration Statement on Form S-4, as amended (the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Securities
Act"), with the Securities and Exchange Commission (the "Commission"). The
Registration Statement relates to an exchange offer (the "Exchange Offer")
pursuant to which the Company will exchange up to $400,000,000 principal amount
of its outstanding 9-3/4% Senior Subordinated Notes due 2008 (the "Old Notes")
for a like principal amount of the Company's 9-3/4% Senior Subordinated Notes
due 2008 that have been registered under the Securities Act (the "New Notes").
The New Notes will be issued pursuant to an indenture, dated as of June 10, 1998
(the "Indenture"), between the Company and State Street Bank and Trust Company
(the "Trustee"), and will be guaranteed pursuant to the Indenture (the
"Guarantees") by certain subsidiaries of the Company (the "Guarantors").
<PAGE>
U.S. Office Products Company
November 5, 1998
Page 2
In connection with this opinion, we have examined originals or copies
of the (1) the Registration Statement; (2) the Prospectus that is a part of the
Registration Statement (the "Prospectus"); (3) the Indenture; and (4) the
Registration Rights Agreement dated as of June 5, 1998 by and among the Company
and the Placement Agents (as defined therein) (the "Registration Rights
Agreement"; collectively with the foregoing documents, the "Operative
Documents").
We have also examined original, reproduced or certified copies of
resolutions adopted by the Company's and the Guarantors' boards of directors,
the organizational documents of the Company and the Guarantors, and such other
documents, corporate records, certificates of public officials and other
instruments as we have deemed necessary or appropriate to render the opinions
set forth below, and have considered such questions of law as we have deemed
necessary to enable us to render the opinions expressed below.
In our examination of documents and records, we have assumed, without
investigation, the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity with originals of all documents submitted to us as telecopied,
certified, photostatic or reproduced copies and the authenticity of all such
documents. We have also assumed, but not independently verified, that all
documents executed by a party other than the Company or the Guarantors were duly
and validly authorized, executed and delivered by such party, that such party
has the requisite power and authority to execute, deliver and perform such
agreements and other documents, and that such agreements and other documents are
legal, valid and binding obligations of such party and enforceable against such
party in accordance with their respective terms.
With respect to questions of fact material to our opinion, we have
relied with your consent, without independent inquiry or verification by us,
solely upon (a) the representations and warranties and factual matters set forth
in each of the Operative Documents, including any exhibits or schedules attached
thereto, respectively, (b) written and oral representations of officers of the
Company and the Guarantors and (c) certificates of public officials. We do not
opine in any respect as to the accuracy of any such facts contained in items
(a)-(c).
This opinion is limited to the laws of the United States of America,
New York law, the General Corporation Law of Delaware and the laws of the states
of organization of the Guarantors. We express no opinion whatsoever as to any
other laws or regulations or as to laws relating to choice of law or conflicts
of law principles. We are members of the Bar of the District of Columbia and
Maryland and do not hold ourselves out as being experts in the laws of any
<PAGE>
U.S. Office Products Company
November 5, 1998
Page 3
other jurisdiction. However, we have made an investigation of such laws to the
extent necessary to render our opinion.
Based upon the foregoing, subject to the assumptions, limitations and
exceptions contained herein, and subject to the issuance by the Commission of an
order declaring the Registration Statement effective, we are of the opinion
that:
1. When the New Notes, in the form filed as an exhibit to the
Indenture, have been duly executed and authenticated in accordance with the
Indenture and have been duly issued and delivered by the Company in exchange for
an equal principal amount of Old Notes pursuant to the terms of the Indenture
and the Exchange Offer, the New Notes will (x) be the legal and binding
obligations of the Company enforceable against the Company in accordance with
their terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally,
and (b) rights of acceleration, if applicable, and the availability of equitable
remedies may be limited by equitable principles of general applicability, as
well as concepts of materiality, reasonableness, good faith and fair dealing,
and (y) be entitled to the benefits of the Indenture; and
2. When the New Notes, in the form filed as an exhibit to the
Indenture, have been duly executed and authenticated in accordance with the
Indenture and have been duly issued and delivered by the Company in exchange for
an equal principal amount of Old Notes pursuant to the terms of the Indenture
and the Exchange Offer, the Guarantees will constitute the legal and binding
obligations of the Guarantors, enforceable in accordance with their terms,
except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally, and (b) rights
of acceleration, if applicable, and the availability of equitable remedies may
be limited by equitable principles of general applicability, as well as concepts
of materiality, reasonableness, good faith and fair dealing.
The information set forth herein is as of the date hereof. We assume no
obligation to advise you of changes which may thereafter be brought to our
attention. Our opinions are based on statutory and judicial decisions in effect
at the date hereof, and we do not opine with respect to any law, regulation,
rule or governmental policy or decision which may be enacted determined or
adopted after the date hereof, nor assume any responsibility to advise you of
future changes in our opinions.
This opinion is furnished by us, as special counsel to the Company, to
you and is solely for your benefit in connection with the Exchange Offer. We
hereby consent to the use of this
<PAGE>
U.S. Office Products Company
Novbember 5, 1998
Page 4
opinion as an exhibit to the Registration Statement. We also consent to any and
all references to our firm under the caption "Legal Matters" in the Prospectus.
Very truly yours,
WILMER, CUTLER & PICKERING
By: /s/ THOMAS W. WHITE
--------------------------
Thomas W. White
A Partner
<PAGE>
EXHIBIT 8.1
[Wilmer, Cutler & Pickering Letterhead]
November 5, 1998
U.S. Office Products
1025 Thomas Jefferson Street, N.W.
Suite 600 East
Washington, DC 20007
Dear Ladies and Gentlemen:
We have acted as special counsel to U.S. Office Products in connection
with the preparation and filing with the Securities and Exchange Commission (the
"Commission") of a Prospectus, dated November 5, 1998 (the "Prospectus"), to the
Registration Statement on Form S-4 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), for the registration
of the 9-3/4% Senior Subordinated Notes due 2008 (the "New Notes") which are to
be offered in exchange for all the outstanding 9-3/4% Senior Subordinated Notes
due 2008 (the "Old Notes"). All capitalized terms not otherwise defined herein
shall have the same meaning ascribed to such terms in the Prospectus.
We have examined copies of the following documents: (1) the Prospectus
(2) the Registration Statement; and (3) such other documents as we have deemed
relevant for purposes of the opinion set forth herein.
In our examination of such documents, we have assumed, without
independent inquiry, the genuineness of all signatures, the proper execution of
all documents, the authenticity of all documents submitted to us as originals,
the conformity to originals of all documents submitted
<PAGE>
U.S. Office Products
November 5, 1998
Page 2
to us as copies, the authenticity of the originals of any such copies, and the
legal capacity of all natural persons.
Based on and subject to the foregoing, it is our opinion that the
discussion set forth in the Prospectus under the heading "Certain United States
Federal Tax Considerations" constitutes, in all material respects, a fair and
accurate summary under current law of the United States federal income tax
consequences of the purchase, ownership, and disposition of the New Notes and
the exchange of Old Notes for New Notes.
The foregoing opinion is based on relevant provisions of the Internal
Revenue Code of 1986, as amended, the Treasury Regulations issued thereunder,
court decisions, and administrative determinations as currently in effect, all
of which are subject to change, prospectively or retroactively, at any time. We
undertake no obligation to update or supplement this opinion to reflect any
changes in laws that may occur after the date hereof.
This opinion has been prepared solely for your use in connection with
the filing of the Prospectus and should not be quoted in whole or in part or
otherwise be referred to, nor otherwise be filed with or furnished to any
governmental agency or other person or entity, without our express prior written
consent.
We hereby consent to the filing of this opinion as an exhibit to the
Prospectus as filed with the SEC and to the use of our name therein.
Very Truly Yours,
WILMER, CUTLER & PICKERING
By: /s/ WILLIAM J. WILKINS
---------------------------
William J. Wilkins
A Partner
<PAGE>
EXHIBIT 23.2
Consent of Independent Accountants
-----------------------------------
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of U.S. Office
Products Company of our reports as of the dates and the related financial
statements which appear in U.S. Office Products Company's Annual Report
on Form 10-K for the year ended April 25, 1998 or U.S. Office Products
Company's Current Report on Form 8-K filed May 26, 1998. We also consent to
the references to us under the heading "Experts" in such Prospectus.
<TABLE>
<CAPTION>
Company Date
------- ----
<S> <C>
U.S. Office Products Company June 24, 1998
Sax Arts and Crafts, Inc. February 3, 1998
Evans Travel Group, Inc. and Evans Consulting February 3, 1998
Services, Inc.
Travel Consultants, Inc. and Envisions Vacations, Inc. January 23, 1998
Compel Corporation January 30, 1998
Astrid Offset Corporation February 6, 1998
</TABLE>
/s/ PricewaterhouseCoopers LLP
- -------------------------------
PRICEWATERHOUSECOOPERS LLP
Minneapolis, Minnesota
November 2, 1998
<PAGE>
EXHIBIT 23.3
Consent of Independent Accountants
----------------------------------
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of U.S. Office
Products Company of our report dated February 8, 1996 relating to the
financial statements of The Re-Print Corporation which report appears in U.S.
Office Products Company's Annual Report on Form 10-K for the year ended
April 25, 1998. We also consent to the references to us under the headings
"Experts" in the Prospectus.
/s/ BDO Seidman LLP
- --------------------
BDO SEIDMAN LLP
Atlanta, Georgia
November 2, 1998
<PAGE>
EXHIBIT 23.4
Independent Auditor's Consent
-----------------------------
We consent to incorporation by reference in the registration statement
(No. 333 - 61021) on Form S-4 of U.S. Office Products Company of our report
dated August 28, 1996 with respect to the balance sheet of Hano Document
Printers, Inc. as of December 31, 1995, and the related statements of income,
stockholder's equity, and cash flows for the year then ended which report
appears in the April 25, 1998 annual report on Form 10-K of U.S. Office
Products Company and to the reference to our firm under the heading "Experts"
in the Prospectus.
/s/ KPMG Peat Marwick LLP
- --------------------------
KPMG PEAT MARWICK LLP
Norfolk, Virginia
November 2, 1998
<PAGE>
EXHIBIT 23.5
Consent of Independent Accountants
----------------------------------
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of U.S. Office
Products Company of our report dated June 7, 1996, except for Note 9, as to
which the date is October 24, 1996, relating to the financial statements of
Fortran Corp., appearing in U.S. Office Product's Annual Report on Form 10-K for
the year ended April 25, 1998. We also consent to the references to us under
the headings "Experts" in such Prospectus.
/s/ Rubin, Koehmstedt & Nadler, PLC
- ------------------------------------
RUBIN, KOEHMSTEDT & NADLER, PLC
Springfield, Virginia
November 2, 1998
<PAGE>
EXHIBIT 23.6
Independent Auditor's Consent
-----------------------------
We consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of U.S. Office
Products Company of our report dated September 23, 1996 relating to the
financial statements of MTA, Inc. as of December 31, 1995 and for the period
from January 25, 1995 (date of incorporation) to December 31, 1995, appearing
in U.S. Office Products Company's Annual Report on Form 10-K for the year
ended April 25, 1998. We also consent to the references to us under the
headings "Experts" in such Prospectus.
/s/ Deloitte & Touche LLP
- --------------------------
DELOITTE & TOUCHE LLP
Seattle, Washington
November 2, 1998
<PAGE>
EXHIBIT 23.7
Consent of Independent Auditors
-------------------------------
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of U.S. Office
Products Company of our reports, dated March 4, 1996, relating to the
financial statements of Huxley Envelope Corporation, and March 6, 1996,
relating to the financial statements of United Envelope Co., Inc. and its
affiliate, Rex Envelope Co., Inc., appearing in U.S. Office Products
Company's Annual Report on Form 10-K for the year ended April 25, 1998. We
also consent to the references to us under the heading "Experts" in such
Prospectus.
/s/ Hertz, Herson & Company LLP
- -------------------------------
HERTZ, HERSON & COMPANY LLP
New York, New York
November 2, 1998
<PAGE>
EXHIBIT 23.8
Consent of Independent Auditors
-------------------------------
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of U.S. Office
Products Company of our report dated February 2, 1996 with respect to the
financial statements of School Specialty, Inc. for the years ended December 31,
1995 and 1994 appearing in U.S. Office Products Company's Annual Report on
Form 10-K for the year ended April 25, 1998. We also consent to the references
to us under the headings "Experts" in such Prospectus.
/s/ Ernst & Young LLP
- ----------------------
ERNST & YOUNG LLP
Milwaukee, Wisconsin
November 2, 1998
<PAGE>
Exhibit 23.9
Consent of Ernst & Young LLP, Independent Auditors
We consent to incorporation by reference in the Prospectus constituting part
of this Registration Statement on Form S-4 of U.S. Office Products Company of
our report dated June 6, 1997, with respect to the consolidated financial
statements of Mail Boxes, Etc included in the Current Report on Form 8-K
filed on April 22, 1998 of U.S. Office Products Company. We also consent to
the reference to our firm under the caption "Experts".
/s/Ernst & Young LLP
- ---------------------
ERNST & YOUNG LLP
San Diego, California
November 2, 1998
