SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 27, 1999
Level 3 Communications, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 47-0210602
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1025 Eldorado Boulevard, Broomfield, Colorado 80021
(Address of principal executive offices) (Zip code)
303-926-3000
(Registrant's telephone number including area code)
3555 Farnam Street, Omaha, Nebraska 68131
(Former name and former address, if changed since last report)
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Item 5. Other Events
At the Annual Meeting of Stockholders of Level 3 Communications, Inc. (the
"Company") held on May 27, 1999, the stockholders approved an amendment to the
Company's Restated Certificate of Incorporation to increase the number of
authorized shares of common stock, par value $.01 per share from 500 million to
1.5 billion. In addition, pursuant to authority granted in the Company's
By-laws, on May 27, 1999, the Company's board of directors approved an amendment
and restatement of the Company's By-laws, effective May 27, 1999.
Item 7. Financial Statements and Exhibits
(a) Financial Statements of businesses acquired.
None
(b) Pro forma financial information
None
(c) Exhibits
Exhibit 3.01 Certificate of Amendment of Restated Certificate of Incorporation
of Level 3 Communications, Inc. filed June 2, 1999
Exhibit 3.02 Restated By-laws effective May 27, 1999
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Level 3 Communications, Inc.
June 3, 1999 By: /s/ Neil J. Eckstein
Date Neil J. Eckstein, Vice President
Exhibit 3.01
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
LEVEL 3 COMMUNICATIONS, INC.
First: That the Board of Directors of Level 3 Communications, Inc., a Delaware
corporation (the "Corporation"), by the unanimous written consent of its
members, filed with the minutes of the Board, adopted resolutions setting forth
a proposed amendment of the Restated Certificate of Incorporation of the
Corporation, declaring said amendment to be advisable and calling for the
stockholders of the Corporation to consider said amendment at the next Annual
Meeting of the Stockholders, to be held on May 27, 1999. The resolution setting
forth the proposed amendment is as follows:
RESOLVED, that set forth below is the text of Article IV of the Restated
Certificate of Incorporation of Level 3 Communications, Inc. if the amendment of
Article IV is approved:
"ARTICLE IV
AUTHORIZED CAPITAL STOCK
The total number of shares of capital stock which the Corporation shall
have the authority to issue is 1,518,500,000, consisting of 1,500,000,000 shares
of Common Stock, par value $.01 per share (the "Common Stock"), 8,500,000 shares
shall be Class R Convertible Common Stock, par value $.01 per share (the "Class
R Stock") and 10,000,000 shares of Preferred Stock, par value $.01 per share
("Preferred Stock).
Ten shares of the Common Stock are hereby designated as Common Stock,
Non-Redeemable Series. The rights, powers, preferences, privileges and
limitations of Common Stock, Non-Redeemable Series shall be identical to those
of all other shares of Common Stock, except as described in Articles V and IX
hereof."
Second: That thereafter, upon notice in accordance with Section 222 of the
General Corporation Law of the State of Delaware, the Annual Meeting of the
Stockholders was held on May 27, 1999 and, at that meeting, the necessary number
of shares as required by statute were voted in favor of the amendment.
Third: That said amendment was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
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Fourth: That the capital of the Corporation shall not be reduced under or by
reason of said amendment.
BY: /s/ Neil J. Eckstein
NAME: Neil J. Eckstein
TITLE: Vice President, Assistant Secretary
and Assistant General Counsel
Exhibit 3.02
AMENDED AND RESTATED
BY-LAWS
OF
LEVEL 3 COMMUNICATIONS, INC.
ARTICLE I.
OFFICES
SECTION 1.1. REGISTERED OFFICE AND AGENT. The registered office of Level 3
Communications, Inc.(the "Corporation") is at 1209 Orange Street, Wilmington,
New Castle County, Delaware 19801. The registered agent at that address is The
Corporation Trust Company.
SECTION 1.2. OTHER OFFICES. The Corporation may have other offices from
time to time as the directors may designate or as the business may require.
ARTICLE II.
STOCKHOLDERS
SECTION 2.1. ANNUAL MEETINGS. The annual meeting of stockholders shall be
held at such place, date, and time as is designated by the Board of Directors.
At this meeting, directors shall be elected and any other proper business may be
transacted.
SECTION 2.2. SPECIAL MEETINGS. Special meetings of the stockholders of the
Corporation may be called for any purpose or purposes by the Chairman of the
Board, the President, the Chief Executive Officer or by a majority of the
directors. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice of the meeting.
SECTION 2.3. PLACE OF MEETINGS. Meetings of stockholders shall be held at
such place, either within or without the State of Delaware, as shall be
designated by those calling the meeting.
SECTION 2.4. NOTICES OF MEETINGS. A written notice shall be given to each
stockholder entitled to vote at the meeting not less than 10 nor more than 60
days before each annual or special meeting. The notice shall state the place,
date, and hour of the meeting. The notice of a special meeting shall state the
purposes for which the meeting has been called. Written notices may be given by
either personal delivery or mail. If mailed, notice is given when deposited in
the United States mail, postage prepaid directed to the stockholder at his
address as it appears on the records of the Corporation. No notice is required
to be given to a stockholder to whom notices of two consecutive annual meetings
(and any other written notice sent between those meetings) have been mailed
addressed to that person at his address as shown on the corporate records and
have been returned undeliverable.
SECTION 2.5. WAIVER OF NOTICE. A written waiver, signed by a stockholder,
whether before or after an annual or special meeting, shall be equivalent to the
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giving of such notice. Attendance by a stockholder, without objection to the
notice, whether in person or by proxy, at an annual or special meeting shall
constitute waiver of notice of such meeting.
SECTION 2.6. VOTING LIST. At least ten days before each stockholders'
meeting, the Secretary shall prepare a complete list of stockholders entitled to
vote at such meeting. Arranged in alphabetical order, the list shall show the
name, address, and number of shares of each stockholder entitled to vote. For at
least 10 days before the meeting, the list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, at (1) the meeting place, or (2) at another place within the
city of the meeting which shall be specified in the notice of the meeting. The
list shall also be available at the meeting for
inspection by any stockholder present.
SECTION 2.7. RECORD DATE. The Board of Directors may fix a record date to
determine which stockholders are entitled to: (a) notice of a stockholders'
meeting; (b) vote at a stockholders' meeting; (c) receive payment for a
dividend; (d) receive a distribution or allotment of rights; (e) exercise any
rights in respect of any change, conversion, or exchange of stock; or (f)notice
for the purpose of any other lawful action. The record date shall not be less
than 10 nor more than 60 days before any such action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 2.8. Each stockholder eligible to vote may authorize another person
or persons to act for him by proxy. No proxy shall be valid after three years
from its date, unless the proxy provides for a longer period.
SECTION 2.9. VOTING RIGHTS. Unless otherwise provided in the Second
Restated Certificate of Incorporation, each stockholder eligible to vote shall
have one vote for each share of capital stock held by such stockholder.
SECTION 2.10. QUORUM AND REQUIRED VOTE. A majority of the shares entitled
to vote, present in person or represented by proxy, shall constitute a quorum at
a meeting of stockholders. Unless otherwise required by the Second Restated
Certificate of Incorporation or by statute, the affirmative vote of the majority
of shares present in person or represented by proxy at the meeting and entitled
to vote on the subject matter shall be the act of the stockholders. However, if
less than a quorum but more than one-third of all shares eligible to vote is
present at a scheduled meeting, a majority of the shares present may adjourn the
scheduled meeting.
SECTION 2.11. ADJOURNED MEETINGS. No new notice is required if the time and
place of the adjourned meeting is announced at the meeting at which the
adjournment is taken and if the adjournment is for not more than 30 days. At an
adjourned meeting, the stockholders may transact any business which might have
been transacted at the original meeting.
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SECTION 2.12. NO ACTION WITHOUT A MEETING. Any action required or permitted
at a stockholders' meeting may be taken only upon the vote of the stockholders
at an annual or special meeting duly noticed and called, and may not be taken by
a written consent of the stockholders.
SECTION 2.13. CONDUCT OF MEETINGS.
(a) The President of the Corporation shall preside at each meeting of the
stockholders. In the absence of the President, the meeting shall be chaired by
an officer of the Corporation in accordance with the following order: Chairman
of the Board, any Executive Vice President, any Senior Vice President and any
Vice President. In the absence of any of such officers, the meeting shall be
chaired by a person chosen by a majority in interest of the stockholders present
in person or represented by proxy and entitled to vote thereat, who shall act as
chairman. The Secretary or in his or her absence an Assistant Secretary or a
person whom the chairman of the meeting shall appoint shall act as secretary of
the meeting and keep a record of the proceedings thereof.
(b) The Board of Directors shall be entitled to make such rules or
regulations for the conduct of meeting of stockholders as it shall deem
necessary, appropriate or convenient. Subject to such rules and regulations of
the Board of Directors, if any, the chairman of the meeting shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of the chairman, are necessary, appropriate or
convenient for the proper conduct of the meeting including, without limitation,
establishing an agenda or order of business for the meeting, rules and
procedures for maintaining order at the meeting and the safety of those present,
limitations on participation in such meeting to stockholders of record of the
Corporation and their duly authorized and constituted proxies, and such other
persons as the chairman shall permit, restrictions on entry to the meeting after
the time fixed for the commencement thereof, limitations an the time allotted to
questions or comment by participants and regulation of the opening and closing
of the ballot. Unless, and to the extent, determined by the Board of Directors
or the chairman of the meeting, meetings of stockholders shall not be required
to be held in accordance with rules of parliamentary procedure.
SECTION 2.14. ADVANCE NOTIFICATION OF BUSINESS TO BE TRANSACTED AT
STOCKHOLDER MEETINGS.
(a) No business may be transacted at an annual meeting of stockholders,
other than business that is either (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors
(or any duly authorized committee thereof), (b) otherwise properly brought
before the annual meeting by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (c) otherwise properly brought before
the annual meeting by any stockholder of the Corporation (i) who is a
stockholder of record on the date of the giving of the notice provided for in
this section and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this section.
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(b) In addition to any other applicable requirements for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary.
(c) To be timely, a stockholder's notice to the Secretary must be delivered
to or mailed and received at the principal executive office of the Corporation
not less than 60 days nor more than 90 days prior to the anniversary date of the
immediately preceding annual meeting of stockholders; provided, however, that in
the event that the annual meeting is called for a date that is not within 30
days before or after such anniversary date, notice by the stockholder in order
to be timely must be so received not later than the close of business on the
tenth day following the day on which such notice of the date of the annual
meeting was mailed or public disclosure of the date of the annual meeting was
made, whichever first occurs.
(d) To be in proper written form, a stockholder's notice to the Secretary
must set forth as to each matter such stockholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and record address of such stockholder, (iii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such stockholder, (iv) a description of
all arrangements or understandings between such stockholder and any other person
or persons (including their names and addresses) in connection with the proposal
of such business by such stockholder and any material interest of such
stockholder in such business and (v) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
(e) No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this section; provided, however, that, once business has
been properly brought before the annual meeting in accordance with such
procedures, nothing in this section shall be deemed to preclude discussion by
any stockholder of any such business. If the chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
ARTICLE III.
DIRECTORS
SECTION 3.1. GENERAL POWERS. The business and affairs of this Corporation
shall be managed by its Board of Directors.
SECTION 3.2. NUMBER AND QUALIFICATIONS. The Board of Directors shall fix,
by resolution from time to time, the number of directors which shall constitute
the whole Board of Directors; provided, however, that such number shall be no
fewer than six and no more than fifteen. Directors need not be stockholders.
SECTION 3.3. ELECTION AND TERM. Upon the original filing of the Second
Restated Certificate of Incorporation (the "Effective Time"), the Board of
Directors shall be
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divided into three classes to be designated as Class I, Class II and Class III.
The Board of Directors, by resolution, shall designate the class in which each
of the directors then in office shall serve upon such classification. The terms
of office of the classes of directors so designated by the Board of Directors
shall expire at the times of the annual meetings of the stockholders as follows:
Class I on the first annual meeting of stockholders following the Effective
Time, Class II on the second annual meeting following the Effective Time and
Class III on the third annual meeting following the Effective Time, or
thereafter in each case when their respective successors are elected and
qualified. At each subsequent annual election, the directors chosen to succeed
those whose terms are expiring shall be identified as being of the same class as
the directors whom they succeed, and shall be elected for a term expiring at the
time of the third succeeding annual meeting of stockholders, or thereafter in
each case when their respective successors are elected and qualified. The number
of directorships shall be apportioned among the classes so
as to maintain the classes as nearly equal in number as possible.
SECTION 3.4. VACANCIES. Vacancies, however resulting, 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, although less then
a quorum, or by a sole remaining director. Any director elected to fill such a
vacancy or newly created directorship shall hold office for a term that shall
coincide with the term of the class to which such director shall have been
elected.
SECTION 3.5. REMOVAL. Subject to any rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances, any
director, or the entire Board of Directors, may be removed from office at any
time, but only for cause and only by the affirmative vote of the holders of at
least sixty-six and two-thirds percent (66 2/3%) of the outstanding stock
entitled to vote thereon.
SECTION 3.6. ANNUAL MEETINGS. The Board of Directors may provide by
resolution for the time and place of annual meetings of the Board of Directors,
without notice other than such resolution.
SECTION 3.7. REGULAR MEETINGS. The Board of Directors may provide by
resolution for the time and place of regular meetings of the Board of Directors,
without notice other than such resolution.
SECTION 3.8. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be called by the Chairman of the Board or the President. The person
calling the meeting may fix the specific time and place of the meeting.
SECTION 3.9. NOTICE OF MEETING. Notice of any special meeting of the Board
of Directors shall be given to each director at his business or residence in
writing or by telegram or by telephone communication or by facsimile
transmission. If mailed, such notice shall be deemed adequately delivered when
deposited in the United States mails so addressed, with postage thereon prepaid,
at least five days before such meeting. If by telegram, such notice shall be
deemed adequately delivered when the telegram is delivered to the telegraph
company at least twenty-four hours before such meeting. If by telephone, the
notice shall be given at least twelve hours prior to the time set for the
meeting. If by facsimile transmission, the notice shall be deemed adequately
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delivered if transmitted at least twenty-four hours before such 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 of such
meeting, except for amendments to these By-laws as provided under Article IX
hereof. A meeting of the Board of Directors may be held at any time without
notice if all the directors are present or if those not present waive notice of
the meeting in writing, either before or after such meeting.
SECTION 3.10. WAIVER OF NOTICE. A written waiver, signed by the director,
whether before or after the meeting of the Board of Directors, shall be
equivalent to the giving of such notice. Attendance by a director, without
objection to the notice, at a meeting of the Board of Directors shall constitute
waiver of notice of such meeting.
SECTION 3.11. TELEPHONE PARTICIPATION. Directors may participate in a
meeting of the Board of Directors by means of conference telephone or similar
communications equipment if all persons participating in the meeting can hear
each other. Participation in a meeting of this kind shall constitute presence in
person at the meeting.
SECTION 3.12. QUORUM AND VOTING. A majority of the whole Board of Directors
shall constitute a quorum for the transaction of business. The vote 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 unless the vote of a greater number
is required by statute, the Second Restated Certificate of Incorporation, or
these By-laws.
SECTION 3.13. ACTION WITHOUT A MEETING. Any action that may be taken at a
meeting of the directors may be taken without a meeting if a consent in writing,
setting forth the action taken, is signed by all directors.
SECTION 3.14. COMPENSATION. By resolution of the Board of Directors, a
director may be paid a fixed sum, and any expenses, for attendance at a meeting
of the Board of Directors. No such payment shall preclude a director from
receiving compensation for serving the Corporation in any other
capacity.
SECTION 3.15. NOMINATION OF DIRECTORS.
(a) Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors of the Corporation.
Nominations of persons for election to the Board of Directors may be made at any
annual meeting of stockholders, or at any special meeting of stockholders called
for the purpose of electing directors, (a) by or at the direction of the Board
of Directors (or any duly authorized committee thereof) or (b) by any
stockholder of the Corporation (i) who is a stockholder of record on the date of
the giving of the notice provided for in this section and on the record date for
the determination of stockholders entitled to vote at such meeting and (ii) who
complies with the notice procedures set forth in this section.
(b) In addition to any other applicable requirements, for a nomination to
be made by a stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary of the Corporation.
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(c) To be timely, a stockholder's notice to the Secretary must be delivered
to or mailed and received at the principal executive office of the Corporation
(a) in the case of an annual meeting, not less than 60 days nor more than 90
days prior to the anniversary date of the immediately preceding annual meeting
of stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within 30 days before or after such anniversary
date, notice by the stockholder in order to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of the annual meeting was mailed or public disclosure of
the date of the annual meeting was made, whichever first occurs and (b) in the
case of a special meeting of stockholders called for the purpose of electing
directors, not later than the close of business on the tenth day following the
day on which notice of the date of the special meeting was mailed or public
disclosure of the date of the special meeting was made, whichever first occurs.
(d) To be in proper written form, a stockholder's notice to the Secretary
must set forth (a) as to each person whom the stockholder proposes to nominate
for election as a director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person and (iv) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitation of proxies for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and
regulations promulgated thereunder, and (b) as to the stockholder giving the
notice (i) the name and record address of such stockholder, (ii) the class or
series and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names and addresses)
pursuant to which the nominations(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitation of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder. Such notice
must be accompanied by a written consent of each proposed nominee to being named
as a nominee and to serve as a director if elected.
(e) No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
section. If the chairman of the meeting determines that a nomination was not
made in accordance with the foregoing procedures, the chairman shall declare to
the meeting that the nomination was defective and such defective nomination
shall be disregarded.
ARTICLE IV.
BOARD COMMITTEES
SECTION 4.1. FORMATION OF COMMITTEES. The Board of Directors by resolution
may create committees, each consisting of two or more directors, which
committees shall hold office for such time and have such powers and perform such
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duties as may from time to time be assigned to them by the Board of Directors.
Three committees have previously been formed: the executive committee, the
compensation committee and the audit committee.
SECTION 4.2. EXECUTIVE COMMITTEE. The executive committee shall have all
the powers of the Board of Directors in the management of the normal and
ordinary business and affairs of the Corporation at all times when the Board of
Directors is not in session. The executive committee shall have the following
specific powers to:
(a) review and approve business plans of subsidiaries and make
recommendations concerning such plans to the appropriate subsidiary board of
directors; and
(b) delegate authority to one or more persons to act on behalf of the
Corporation or its subsidiaries, whether pursuant to a power of attorney or
otherwise, and to establish policies regarding such delegations of authority.
SECTION 4.3. COMPENSATION COMMITTEE. The compensation committee shall have
the duties to recommend to the Board of Directors: (a) the base salary or wage
ranges of all employees; (b) the amounts and forms of compensation, including
fringe benefits and bonuses, as well as stock options and incentive compensation
rights that apply or may apply to employees; (c) the adoption and implementation
of any new or modified forms of compensation; (d) the suspension, elimination or
restriction of any presently existing forms of compensation; and (e) plans
concerning the orderly succession of officers and key management personnel.
SECTION 4.4. AUDIT COMMITTEE. None of the members of the audit committee
shall be directly involved in the supervision or management of the financial
affairs of this Corporation or any of its subsidiaries.
(a) The books, records, and accounts of the Corporation may be audited
periodically by independent public accountants. In connection with the audit
process, the audit committee shall have the following duties to:
(i) make recommendations about the appointment, retention, and termination
of independent public accountants;
(ii) make recommendations about the scope of the audit and audit
procedures;
(iii) review for the Board of Directors all recommendations made by the
independent public accountants about accounting methods and matters which are
relevant to the Corporation; and
(iv) review with the independent public accountants those aspects of the
following matters which pertain to the Corporation, upon completion of their
audit: (a) the financial statements and any report or opinion proposed to be
rendered in connection therewith; (b) the independent public accountants'
perceptions of the personnel responsible for the Corporation's financial and
accounting matters; (c) the cooperation which the independent public accountants
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receive during the course of their audit; (d) the extent which the resources of
the Corporation were or should be utilized to minimize the audit fee; (e) any
significant transactions which were not in the ordinary, routine, and regular
course of business of the Corporation; (f) any change in accounting principles,
policies or standards; (g) all significant adjustments proposed by the
independent public accountants; (h) general policies and procedures relating to
internal auditing and financial costs which pertain to the Corporation; and (I)
any recommendations which the independent public accountants may have with
respect to internal financial controls, choice of accounting policies and
principles or management reporting systems.
(b) The audit committee shall meet periodically with the staff responsible
for the Corporation's financial and accounting matters to review and discuss the
scope of internal accounting procedures and controls then in effect and the
extent to which any recommendations made by the independent public accountants
or any internal auditors have been implemented.
(c) The audit committee shall direct and supervise any investigation into
any matter brought to its attention within the scope of its duties which it
believes is necessary. The audit committee may retain outside consultants in
connection with any such investigation.
(d) The audit committee shall monitor business practices of the Corporation
as set forth in the written policies of the Corporation, such as compliance with
antitrust policies and other policies, as directed by the Board of Directors.
(e) The audit committee shall prepare and present to the Board of Directors
a report covering its activities twice yearly at regular meetings of the Board
of Directors or more often, when considered necessary, to report a material
irregularity.
SECTION 4.5. LIMITATIONS ON POWERS. Limitations on the powers of committees
of the Board of Directors shall be governed by Section 141(c)(2) of the Delaware
General Corporation Law. In addition, no committee shall act contrary to a
fundamental policy or method of conducting the business of the Corporation. No
committee shall have the specific powers conferred upon any other committee by
these By-laws.
SECTION 4.6. GENERAL. Any committee member may be removed by the Board of
Directors at any time without cause. The Board of Directors may designate a
chairman of a committee. The following provisions of the By-laws, which are
applicable to the Board of Directors, shall also govern each Board of Directors
committee: Section 3.4 (vacancies), Section 3.10 (waiver of notice), Section
3.11 (telephone participation), Section 3.12 (quorum and voting), and Section
3.13 (action without a meeting). Each committee may adopt its own rules of
procedure and such rules may govern the call, time, place, and notice of
meetings. Each committee may keep appropriate minutes of such proceedings and
shall report all significant actions at regular meetings of the Board of
Directors.
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ARTICLE V.
OFFICERS
SECTION 5.1. NUMBER. The officers of the Corporation shall include a
President and a Secretary. The Board of Directors may elect additional officers
and appoint agents as it determines necessary. Any two or more offices may be
held by the same person, except the offices of President and Secretary. The
Board of Directors in its discretion may also elect a Chairman of the Board.
SECTION 5.2. ELECTION AND QUALIFICATION. The President and Secretary shall
be elected at the annual meeting of the Board of Directors. Other officers may
be elected by the Board of Directors from time to time. The Chairman of the
Board, if any, and the President shall be directors of the Corporation, and
should any one of them cease to be a director, he shall IPSO FACTO cease to be
such officer.
SECTION 5.3. TERM. Each officer shall hold office until his successor is
elected and qualified or until his earlier resignation or removal. Any officer
may resign at any time upon written notice to the Corporation.
SECTION 5.4. REMOVAL. Any officer elected by the Board of Directors may be
removed by a majority of the members of the whole Board of Directors whenever,
in their judgment, the best interest of the Corporation would be served thereby.
No elected officer shall have any contractual rights against the Corporation for
compensation by virtue of such election beyond the date of the election of his
successor, his death, his resignation or his removal, whichever event shall
first occur, except as otherwise provided in an employment contract or under an
employee deferred compensation plan.
SECTION 5.5. VACANCY. Any vacancy in any office from any cause may be
filled for the unexpired portion of the term by the Board of Directors.
SECTION 5.6. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be a
director and shall preside at all meetings of the Board of Directors at which he
shall be present, and shall have such power and perform such duties as may from
time to time be assigned to him by the Board of Directors.
SECTION 5.7. PRESIDENT. The President shall, when present, preside at all
meetings of the stockholders, and, in the absence of the Chairman of the Board,
at meetings of the Board of Directors. He shall have power to call special
meetings of the stockholders, of the Board of Directors or of the Executive
Committee at any time. He shall be the chief executive officer of the
Corporation, and shall have the general direction of the business, affairs and
property of the Corporation, and of its several officers and shall have and
exercise all such powers and discharge such duties as usually pertain to the
office of President.
SECTION 5.8. VICE-PRESIDENTS. The Vice-Presidents, if any, or any of them,
shall, subject to the direction of the Board of Directors, at the request of the
President or in his absence, or in case of his inability to perform his duties
from any cause, perform the duties of the President, and, when so acting, shall
have all the powers of, and be subject to all restrictions upon, the President.
The Vice-Presidents shall also perform such other duties as may be assigned to
<PAGE>
them by the Board of Directors, and the Board of Directors may determine the
order of priority among them.
SECTION 5.9. SECRETARY. The Secretary shall perform such duties as are
incident to the office of Secretary, or as may from time to time be assigned to
him by the Board of Directors, or as are prescribed by these By-laws.
SECTION 5.10.. TREASURER. The Treasurer shall perform such duties and have
powers as are usually incident to the office of Treasurer or which may be
assigned to him by the Board of Directors.
SECTION 5.11. COMPENSATION. The compensation of all officers shall be fixed
by the Board of Directors. An officer who is also a director may be compensated
in both capacities.
SECTION 5.12. BONDING. Any officer, agent or employee of the Corporation,
if so required by the Board of Directors, shall be bonded for the faithful
performance of his duties, with such penalties, conditions and security as the
Board of Directors may require.
ARTICLE VI.
STOCK
SECTION 6.1. STOCK CERTIFICATES. The directors shall determine the form of
certificates which represent ownership of shares of the Corporation. Each
certificate shall contain the holder's name and the number of shares issued.
Each certificate shall be signed by the President or any Vice President and the
Secretary or the Assistant Secretary. Each certificate shall be impressed with
the corporate seal. Each certificate shall be consecutively numbered. The name
and address of the person to whom the shares are issued, with the number of
shares and date of issue, shall be entered in the stock ledger of the
Corporation.
SECTION 6.2. TRANSFER OF STOCK. Transfers of shares shall be made only on
the stock transfer books of the Corporation. On surrender to the Corporation of
a stock certificate properly endorsed by the holder of record or accompanied by
a proper evidence of authority to transfer, a new certificate shall be issued to
the person entitled. However, the requirements of any applicable stock transfer
restriction agreement must also be satisfied. The old certificate shall be
canceled and the transaction recorded in the stock ledger.
SECTION 6.3. LOST CERTIFICATES. The Corporation shall issue a new stock
certificate in place of a certificate previously issued, if the holder: (a)
claims by affidavit that the certificate has been lost, destroyed, or stolen;
and (b) gives the Corporation a bond or other indemnity as the directors
determine appropriate.
SECTION 6.4. REGISTERED STOCKHOLDERS. The person in whose name shares are
registered in the Corporation's stock ledger shall be deemed by the Corporation
to be the owner of those shares for all purposes. The Corporation shall not be
required to recognize any equitable or other claim or interest in such shares by
any other person, whether or not it has actual or other notice of such claim.
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ARTICLE VII.
MISCELLANEOUS
SECTION 7.1. SEAL. The corporate seal shall contain the name of the
Corporation as well as the words "Corporate Seal" and "Delaware".
SECTION 7.2. FISCAL YEAR. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
SECTION 7.3. CONTRACTS, ETC. The directors shall determine by resolution
which persons shall be empowered to sign contracts, bids, proposals,
certificates and other instruments of the Corporation. Such authority may be
general or confined to specific instances.
SECTION 7.4. CHECKS, ETC. 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.
SECTION 7.5. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Second Restated Certificate of
Incorporation, may be declared by the Board of Directors or a committee of 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.
SECTION 7.6. RESERVES. 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, determine
proper as a reserve fund to meet contingencies, 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
abolish any such reserve in the manner in which it was created.
SECTION 7.7. VOTING STOCK OF OTHER CORPORATIONS. Except as otherwise
ordered by the Board of Directors, the Chairman of the Board or the President
shall have full power an behalf of the Corporation to attend and to act and to
vote at any meeting of the stockholders of any other corporation of which the
Corporation is a stockholder and to execute a proxy to any other person to
represent the Corporation at any such meeting.
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1. NON-DERIVATIVE SUITS. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or complete action, suit or proceeding, whether civil,
criminal, administrative, or investigative (other than an action by or in the
right of the Corporation), by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
<PAGE>
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonable believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe his conduct was unlawful.
SECTION 8.2. DERIVATIVE SUITS. The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 8.3. EXTENT OF INDEMNIFICATION. To the extent that a director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in Section
8.1 or 8.2 above, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
SECTION 8.4. APPROVAL OF INDEMNIFICATION. Any indemnification under Section
8.1 or 8.2 above (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 8.1 or 8.2 above. Such determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (3) by the
affirmative vote of the holders of 51% of the outstanding shares of Common Stock
of the Corporation.
SECTION 8.5. ADVANCES. Expenses (including attorneys' fees) incurred in
defending a civil, criminal, administrative or investigative action, suit or
proceeding shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount, if it
shall ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article VIII.
<PAGE>
SECTION 8.6. NON-EXCLUSIVITY. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VIII shall not be
deemed exclusive of any other rights to which any person seeking indemnification
may be entitled under any By-law, agreement, vote of stockholders or
disinterested director or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such person.
SECTION 8.7. INSURANCE. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Section 8.7 or
under the provisions of any applicable law or regulation.
ARTICLE IX.
AMENDMENTS
SECTION 9.1. These By-laws may be repealed, altered, amended or rescinded
and new by-laws may be adopted by the majority vote of the Board of Directors or
by the affirmative vote of sixty-six and two-thirds percent (66-2/3%) of the
outstanding stock entitled to vote thereon.
Dated: May 27, 1999
