SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
THE SECURITIES EXCHANGE ACT OF 1934
GROUNDWATER TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
Delaware 02-0324047
(State of incorporation (IRS Employer
or organization) Identification No.)
100 River Ridge Drive, Norwood, Massachusetts 02062
(Address of principal executive officers) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None N/A
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock $.001 par value
(Title of Class)
Page 1 of 3 pages. The exhibit index is on page 2.
<PAGE>
Item 1. Description of Registrant's Securities to be Registered
Information concerning the Registrant's Common Stock, par value of $.001
per share, is contained in the Registrant's Form S-4 Registration Statement,
filed electronically with the Securities and Exchange Commission on April 5,
1996 pursuant to the Securities Act of 1933, as amended and such information is
incorporated herein by reference.
Item 2. Exhibits
Exhibit No. Exhibit
1 Specimen certificate representing the Common
Stock.
2 Form of Amended and Restated Certificate of
Incorporation of the Registrant.
3 Form of Amended and Restated By-Laws of the
Registrant.
[Intentionally blank]
Page 2 of 3 pages.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
GROUNDWATER TECHNOLOGY, INC.
By: /s/ Catherine L. Farrell
-------------------------------------
Name: Catherine L. Farrell
Title: Vice President
Date: May 8, 1996
Page 3 of 3 pages.
EXHIBIT 1
NUMBER SHARES
FDGT
THIS STOCK IS TRANSFERABLE IN BOSTON, SEE REVERSE FOR CERTAIN DEFINITIONS
MASSACHUSETTS AND NEW YORK, NEW YORK CUSIP 34386C 10 6
FLUOR DANIEL GTI
FLUOR DANIEL GTI, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, $.001 PAR VALUE, OF
FLUOR DANIEL GTI, INC.
transferable only on the books of the Corporation by the holder hereof in person
or by duly authorized attorney upon surrender of this Certificate properly
endorsed. This Certificate and the shares represented hereby are issued under
and subject to the laws of the State of Delaware and to the Certificate of
Incorporation and By-Laws of the Corporation, all as in effect from time to
time. This Certificate is not valid until countersigned and registered by the
Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
Dated
/s/ /s/
FLUOR DANIEL GTI, INC.
PRESIDENT 1975 TREASURER
DELAWARE
COUNTERSIGNED AND REGISTERED:
STATE STREET BANK AND TRUST COMPANY
(BOSTON) TRANSFER AGENT
AND REGISTRAR
AUTHORIZED SIGNATURE
Reverse Side
FLUOR DANIEL GTI, INC.
The Corporation is authorized to issue more than one class of stock. The
Corporation will furnish to the holder upon request without charge the
designations, preferences, powers, qualifications and relative or special rights
of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences or rights. Requests may be directed to the
office of the Secretary of the Corporation, 100 River Ridge Drive, Norwood, MA
02062.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT-- ______Custodian ______
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of under Uniform Gifts to
survivorship and not as tenants Minors Act ___________
in common (State)
Additional abbreviations may also be used though not in the above list.
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this stock certificate
becomes fully negotiable, similar to a check endorsed in blank. Therefore, to
safeguard a signed certificate, it is recommended that you either (i) fill in
the name of the new owner in the "Assignee" blank, or (ii) if you are sending
the signed certificate to your bank or broker, fill in the name of the bank or
broker in the "Attorney" blank. Alternatively, instead of using the Assignment
Form, you may sign a separate "stock power" form and then mail the unsigned
stock certificate and the signed "stock power" in separate envelopes. For added
protection, use certified or registered mail for a stock certificate.
For value received, ___________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE OF ASSIGNEE)
_______________________________________________________________________________
_______________________________________________________________________________
________________________________________________________________________ shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
_______________________________________________________________________ Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated ________________
_______________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
SIGNATURE(S) GUARANTEED:
_____________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCK-
BROKERS, SAVINGS AND LOAN ASSOCIATIONS AND
CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
` EXHIBIT 2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GROUNDWATER TECHNOLOGY, INC.
GROUNDWATER TECHNOLOGY, INC., a Delaware corporation (the "Corporation"),
hereby certifies and provides as follows:
1. The name of the Corporation is Groundwater Technology, Inc.
2. This Amended and Restated Certificate of Incorporation (the "Restated
Certificate") was duly adopted in accordance with Sections 242 and 245 of
the General Corporation Law of the State of Delaware.
3. At 4:30 pm EST on May 10, 1996, or upon the filing of this Amended and
Restated Certificate, whichever is later, the text of the present Restated
Certificate of Incorporation is hereby amended to read in full as set forth
below:
FIRST. The name of the Corporation is Fluor Daniel GTI, Inc.
SECOND. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or promoted is
to engage in anylawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
FOURTH. At the time the filing of this Restated Certificate with the
Secretary of State of the State of Delaware becomes effective:
(a) Each outstanding share of Common Stock, $.01 par value per share, of
the Corporation (the "Old Common Stock"), shall be changed into and
reclassified as .5274 shares of the Common Stock, $.001 par value per share
(the "New Common Stock"), of the Corporation.
(b) If the event described in subsection (a) above results in any
stockholder being entitled to receive a fraction of a share, the holder
thereof shall be entitled to receive (after aggregating all fractional
shares of New Common Stock to be received by the holder) an amount of cash
(rounded to the nearest whole cent) equal to the product of (i) the fraction
multiplied by (ii) the average of the closing price of the Old Common Stock
as quoted on the Nasdaq National Market for the five (5) days immediately
prior to the effective date hereof.
1
(c) All authorized but unissued shares of Old Common Stock shall be
eliminated.
Upon the effective filing hereof, the conversion of the issued and
outstanding shares of Old Common Stock into issued and outstanding shares of New
Common Stock shall occur automatically without any further action by the holders
of such shares of Old Common Stock and whether or not the certificates
representing the shares of Old Common Stock are surrendered to the Corporation;
provided, however, that the Corporation shall not be obligated to issue
certificates evidencing the shares of New Common Stock issuable upon such
conversion unless certificates evidencing such shares of Old Common Stock which
have been converted are either delivered to the Corporation, as hereinafter
provided, or the holder notifies the Corporation that such certificates have
been lost, stolen or destroyed and executes an agreement satisfactory to the
Corporation to indemnify the Corporation from any loss incurred by it in
connection therewith and upon the request of the Corporation gives 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.
Upon the occurrence of the automatic conversion of the Old Common Stock ,
the holders of Old Common Stock shall surrender the certificates representing
such shares at the offices of the Corporation or such other location as the
Corporation may direct. Thereupon, there shall promptly be issued and delivered
to such holder, in the name shown on such surrendered certificate or
certificates, a certificate or certificates for the number of shares of New
Common Stock, into which the shares of Old Common Stock surrendered are
convertible, dated as of the date on which such automatic conversion occurs.
Upon the effectiveness hereof and after giving effect to the conversion set
forth above, the authorized capital stock of the Corporation shall be as
follows:
The total number of shares of stock which the Corporation shall have
authority to issue is 25,000,000 shares of Common Stock, par value $.001 per
share (the "Common Stock"), and 1,000,000 shares of Preferred Stock, par value
$.01 per share (the "Preferred Stock"). A description of the respective classes
of stock and a statement of the designations, preferences, limitations and
relative rights of the Preferred Stock, and Common Stock and the limitations on
or denial of the voting rights of the shares of such classes and series of stock
are as follows:
A. PREFERRED STOCK.
The Board of Directors is expressly authorized to provide for the issuance
of all or any shares of the Preferred Stock, and to fix for the Preferred Stock
such voting powers, full or limited, or no voting power, and such designations,
preferences and relative, participating, optional or other special rights and
qualifications, limitations and restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issuance of such shares and as may be permitted by the General
Corporation Law of the State of Delaware, including, without limitation, the
authority to provide that any such shares may be (i) subject to redemption at
such time or times, at such price or prices at such rate or rates, and with such
adjustments; (ii) entitled to receive dividends (which may be cumulative or
non-cumulative) at such rates, on such conditions, and at such times, and
payable in preference to, or in such relation to, the dividends payable on any
other class or classes or on any other series of stock; (iii) entitled to such
rights upon the dissolution of, or upon any distribution of the assets of, the
Corporation; or (iv) convertible into, or exchangeable for, shares of any other
class or classes of stock, or of any other series of the same or any other class
or classes of stock, of the Corporation at such price or prices or at such rates
of exchange and with such adjustments, all as may be stated in such resolution
or resolutions.
2
B. COMMON STOCK.
1. Relative Rights of Preferred and Common Stock. All voting powers,
designations, preferences or relative participating, optional or other special
rights, and such qualifications, limitations, or restrictions, thereof of the
Common Stock are expressly made subject and subordinate to those that may be
fixed with respect to any shares of the Preferred Stock.
2. Voting Rights. Except as provided by law or this Amended and Restated
Certificate of Incorporation, each holder of Common Stock shall have one vote in
respect of each share of stock held by him of record on the books of the
Corporation for the election of directors and on all matters submitted to a vote
of stockholders of the Corporation.
3. Dividends. Subject to the preferential rights, if any, of the Preferred
Stock, the holders of shares of Common Stock shall be entitled to receive, when
and if declared by the Board of Directors, out of the assets of the Corporation
which are by law available therefor, dividends payable either in cash, in
property, or in shares of capital stock.
4. Dissolution, Liquidation or Winding-Up. In the event of any dissolution,
liquidation or winding-up of the affairs of the Corporation, after distribution
in full of the preferential amounts, if any, to be distributed to the holders of
shares of the Preferred Stock, holders of Common Stock shall be entitled, unless
otherwise provided herein by law, to receive all of the remaining assets of the
Corporation of whatever kind available for distribution to stockholders ratably
in proportion to the number of shares of Common Stock held by them respectively.
The Board of Directors may distribute in kind to the holders of Common Stock
such remaining assets to any other corporation, trust or other entity and
receive payment therefore in cash, stock or obligations of such other
corporation, trust or entity or any combination so received and distribute any
balance thereof in kind to holders of Common Stock. Neither the merger or
consolidation of the Corporation into or with any other corporation nor the
merger of any other corporation into it, nor any purchase or redemption of
shares of stock of the Corporation of any class, shall be deemed to be a
dissolution, liquidation or winding-up or the Corporation for the purposes of
this paragraph.
FIFTH. The Corporation is to have perpetual existence.
3
SIXTH. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
To make, alter or repeal the By-laws of the Corporation.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the Corporation.
To set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any
such reserve in the manner in which it was created.
By a majority of the whole Board, to 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 of the directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. The By-laws may provide that in the absence or disqualification
of a member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absence or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
or in the By-laws of the Corporation, 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 amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution or amending the
By-laws of the Corporation; and, unless the resolution or By-laws, expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with statute, to
sell, lease or exchange all or substantially all of the property and assets of
the Corporation, including its good will and its corporate franchises, upon such
terms and conditions and for such consideration, which may consist in whole or
in part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its Board of Directors
shall deem expedient and for the best interests of the Corporation.
SEVENTH. Meetings of stockholders may be held within or without the State of
Delaware, as the By-laws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-laws of the Corporation.
4
EIGHTH. The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Amended and Restated Certificate of
Incorporation, in the matter now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this revision.
NINTH. The Corporation eliminates the personal liability of each member of
its Board of Directors to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that the foregoing
shall not eliminate the liability of the director (i) for any breach of such
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 Title 8 of the Delaware
Code or (iv) for any transaction from which such director derived an improper
personal benefit.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seal
this day of 1996.
GROUNDWATER TECHNOLOGY, INC.
ATTEST: ______________________________ By: _______________________________
Brian D. Goldstein Walter C. Barber
Assistant Secretary President
5
EXHIBIT 3
BY-LAWS
OF
FLUOR DANIEL GTI, INC.
(A DELAWARE CORPORATION)
AS AMENDED THROUGH:
FLUOR DANIEL GTI, INC.
BY-LAWS
TABLE OF CONTENTS
<TABLE>
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PAGE A-
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ARTICLE 1. CERTIFICATE OF INCORPORATION
Section 1.1 Contents
Section 1.2 Certificate in Effect
ARTICLE 2. MEETING OF STOCKHOLDERS
Section 2.1 Place
Section 2.2 Annual Meeting
Section 2.3 Special Meetings
Section 2.4 Notice of Meetings
Section 2.5 Affidavit of Notice
Section 2.6 Quorum
Section 2.7 Voting Requirements
Section 2.8 Proxies and Voting
Section 2.9 Stockholder List
Section 2.10 Record Date
Section 2.11 Notice of Stockholder Business
ARTICLE 3. DIRECTORS
Section 3.1 Enumeration; Election and Term of Office
Section 3.2 Duties
Section 3.3 Compensation
Section 3.4 Reliance on Books
ARTICLE 4. MEETINGS OF THE BOARD OF DIRECTORS
Section 4.1 Place
Section 4.2 Annual Meeting
Section 4.3 Regular Meetings
Section 4.4 Special Meetings
Section 4.5 Quorum
Section 4.6 Action Without Meeting
Section 4.7 Telephone Meetings
ARTICLE 5. COMMITTEES OF DIRECTORS
Section 5.1 Designation
Section 5.2 Records of Meetings
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ARTICLE 6. NOTICES
Section 6.1 Method of Giving Notice
Section 6.2 Waiver
ARTICLE 7. OFFICERS
Section 7.1 In General
Section 7.2 Election of President, Secretary and Treasurer
Section 7.3 Election of Other Officers
Section 7.4 Salaries
Section 7.5 Term of Office
Section 7.6 Duties of President and Chairman of the Board
Section 7.7 Duties of Vice President
Section 7.8 Duties of Secretary
Section 7.9 Duties of Assistant Secretary
Section 7.10 Duties of Treasurer
Section 7.11 Duties of Assistant Treasurer
ARTICLE 8. RESIGNATIONS, REMOVALS AND VACANCIES
Section 8.1 Directors
Section 8.2 Officers
ARTICLE 9. CERTIFICATE OF STOCK
Section 9.1 Issuance of Stock
Section 9.2 Right to Certificate; Form
Section 9.3 Facsimile Signature
Section 9.4 Lost Certificates
Section 9.5 Transfer of Stock
Section 9.6 Registered Stockholders
ARTICLE 10. EXECUTION OF PAPERS
ARTICLE 11. FISCAL YEAR
ARTICLE 12. SEAL
ARTICLE 13. OFFICES
ARTICLE 14. INDEMNIFICATION
Section 14.1 Actions other than by or in the Right of the Corporation
Section 14.2 Actions by or in the Right of the Corporation
Section 14.3 Success on the Merits
Section 14.4 Specific Authorization
Section 14.5 Advance Payment
Section 14.6 Non-Exclusivity
Section 14.7 Insurance
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Section 14.8 Continuation of Indemnification and Advancement of
Expenses
Section 14.9 Severability
Section 14.10 Intent of Article
ARTICLE 15. AMENDMENTS
</TABLE>
iii
FLUOR DANIEL GTI, INC.
FORMERLY
GROUNDWATER TECHNOLOGY, INC.
ARTICLE 1. CERTIFICATE OF INCORPORATION
Section 1.1 Contents. The name, location of principal office and purposes of
the Corporation shall be as set forth in its Amended and Restated Certificate of
Incorporation, These Bylaws, the powers of the Corporation and of its Directors
and stockholders, and all matters concerning the conduct and regulation of the
business of the Corporation shall be subject to such provisions in regard
thereto, if any, as are set forth in said Amended and Restated Certificate of
Incorporation. The Amended and Restated Certificate of Incorporation is hereby
made a part of these Bylaws.
Section l.2 Certificate in Effect. All references in these By-laws to the
Amended and Restated Certificate of Incorporation shall be construed to mean the
Amended and Restated Certificate of Incorporation of the Corporation as from
time to time amended, including (unless the context shall otherwise require) all
certificates and any agreement of consolidation or merger filed pursuant to the
Delaware General Corporation Law, as amended.
ARTICLE 2. MEETING OF STOCKHOLDERS
Section 2.1 Place. All meetings of the stockholders may be held at such
place either within or without the State of Delaware as shall be designated from
time to time by the Board of Directors as stated in the notice of the meeting or
in any duly executed waiver of notice thereof.
Section 2.2 Annual Meeting. Annual meetings of stockholders shall be held
either in the month of September or October of each year at such specific date
and time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting. If such annual meeting has not been held as
herein provided, a special meeting of the stockholders in lieu of the annual
meeting may be held, and any business transacted or elections held at such
special meeting shall have the same effect as if transacted or held at the
annual meeting, and in such case all references in these By-laws, except in this
Section 2.2, to the annual meeting of the stockholders shall be deemed to refer
to such special meeting.
Section 2.3 Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the Amended
and Restated Certificate of Incorporation, may be called by the Board of
Directors and shall be called by the President or Secretary at the request in
writing of a majority of the Directors then in office. Such request shall state
the purpose or purposes of the proposed meeting.
Section 2.4 Notice of Meetings. A written notice of all meetings of
stockholders stating the place, date and hour of the meeting and, in the case of
a special meeting, the purpose or purposes for which the special meeting is
called, shall be given not less than ten nor more than sixty days before the
date of the meeting to each stockholder entitled to vote at such meeting.
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice.
1
Section 2.5 Affidavit of Notice. An affidavit of the Secretary or an
Assistant Secretary or the transfer agent of the Corporation that notice of a
stockholders meetings has been given shall, in the absence of fraud, be prima
facie evidence of the facts stated therein.
Section 2.6 Quorum. 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
Amended and Restated Certificate of Incorporation. If, however, such quorum
shall not be present or represented by 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, except as hereinafter provided, until a
quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be presented or represented any business may be transacted which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 2.7 Voting Requirements. 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 questions brought before such
meeting, unless the question is one upon which, by express provision of any
applicable statute or of the Amended and Restated Certificate of Incorporation,
a different vote is required, in which case such express provision shall govern
and control the decision of such questions.
Section 2.8 Proxies and Voting. Unless otherwise provided in the Amended and
Restated 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. Persons holding stock in a fiduciary capacity shall be entitled
to vote the shares so held, and persons whose stock is pledged shall be entitled
to vote the pledged shares, unless in the transfer by the pledgor on the books
of the Corporation he shall have expressly empowered the pledgee to vote said
shares, in which case only the pledgee, or his proxy, may represent and vote
such shares. Shares of the capital stock of the Corporation owned by the
Corporation shall not be voted, directly or indirectly.
Section 2.9 Stockholder List. The officer who has charge of the stock ledger
of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of 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. The original or duplicate stock ledger shall be the only evidence as to
who are the stockholders entitled to examine such list, the stock ledger or the
books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
2
Section 2.10 Record Date. 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
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.
If no record date is fixed by the Board of Directors:
(a) The record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which
the meeting is held.
(b) The record date for determining stockholders entitled to express
consent to Corporate action in writing without a meeting, when no prior
action by the Board of Directors is necessary, shall be the day which the
first written consent is expressed.
(c) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
Section 2.11 Notice of Stockholder Business. (a) For a proposal to be
properly brought before an annual meeting by a stockholder or for a stockholder
to nominate a person or persons for election as directors at an annual meeting
or any special meeting at which directors are to be elected, the stockholder
must give timely notice thereof in writing to the Secretary of the Corporation.
To be timely, a stockholder's notice must be delivered to, or mailed and
received at, the principal executive offices of the Corporation not less than 45
days, but not more than 60 days, prior to the meeting; provided, however, if
less than 60 days' notice or prior public disclosure of the date of the meeting
is given or made to stockholders, notice by the stockholder to be timely must be
so received not later than the close of business on the 15th business day
following the day on which such notice or public disclosure of the date of the
meeting is made.
(b) A stockholder's notice to the Secretary relating to a proposal shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the proposal desired to be brought before the
annual meeting, (ii) the name and address, as they appear on the Corporation's
books, of the stockholder who intends to make the proposal and any other
stockholders known by such stockholder to support such proposal, (iii) the class
and number of shares of the Corporation's capital stock which are beneficially
owned by the stockholder and by any other stockholders known by such stockholder
to support such proposal as of the date of such stockholder notice, and (iv) any
financial interest of the stockholder in such proposal.
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(c) A stockholder's notice to the Secretary relating to a nominee for
election as a director shall set forth (i) the name and address, as they appear
on the Corporation's books, of the stockholder who intends to make the
nomination and any other stockholder's known by such stockholder to support the
nomination, (ii) the class and number of shares of the Corporation's capital
stock which are beneficially owned by the stockholder and by any other
stockholders known by such stockholder to support such proposal as of the date
of such stockholder notice, (iii) a representation that such stockholder is a
holder of record of stock of the Corporation entitled to vote as such meeting
and intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice, (iv) a description of all
arrangements or understandings between such stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by such stockholder, (v) such other
information regarding each nominee proposed by such stockholder as would have
been required to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission had each nominee been nominated,
or intended to be nominated by the Board of Directors, and (vi) the consent of
each nominee to serve as a director of the Corporation if elected.
(d) The Board of Directors, or a designated committee thereof, may determine
whether a notice has complied with the requirements of this Section 2.11, and
may reject as invalid any stockholder proposal or nomination which was not the
subject of a notice timely made in accordance with, and containing all
information required by, the terms of this Section 2.11. If neither the Board of
Directors nor such committee a determination as to the compliance with the
requirements of this Section 2.11, the presiding officers at the meeting shall
determine and declare at the meeting whether such notice has so complied. If the
Board of Directors or a designated committee thereof or the presiding officer
determines that a stockholder proposal or nomination was the subject of a notice
made in accordance with the terms of this Section 2.11, and if the stockholder
giving such notice shall make such proposal or nomination, the presiding officer
shall so declare at the meeting, and ballots shall be provided for use at the
meeting with respect to such proposal or nomination. If the Board of Directors
or a designated committee thereof or the presiding officer determines that a
stockholder proposal or nomination was not the subject of a notice made in
accordance with the terms of this Section 2.11, and if the stockholder giving
such notice shall make such proposal or nomination, the presiding officer shall
so declare at the meeting and any such proposal shall not be acted upon at the
meeting.
(e) Notwithstanding the foregoing, a stockholder may present at an annual
meeting any proposal which such stockholder has caused to be included in the
Corporation's proxy materials pursuant to Rule 14a-8 promulgated pursuant to the
Securities Exchange Act of 1934, as amended.
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(f) This Section 2.11 shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors and
committees of the Board of Directors, but in connection with such reports, no
new business shall be acted upon at such annual meeting unless stated, filed and
received as herein provided.
ARTICLE 3. DIRECTORS
Section 3.l Enumeration; Election and Term of Office. The Board of Directors
shall consist of not more than seven Directors, except that whenever there shall
be only one stockholder the number of Directors shall be not less than one.
Except in the case of vacancies as set forth in Article 8, the Directors shall
be chosen at the annual meeting of the stockholders by such stockholders as have
the right to vote thereon, and each Director shall hold office until the next
annual meeting of the stockholders and until his successor is elected and
qualified, unless he sooner resigns or is removed in accordance with Article 8
below.
Section 3.2 Duties. 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 lawful acts and things as are not by statute
or by the Amended and Restated Certificate of Incorporation or by these By-laws
directed or required to be exercised or done by the stockholders.
Section 3.3 Compensation. Unless otherwise restricted by the Amended and
Restated 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 therefore. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
Section 3.4 Reliance on Books. A member of Board of Directors or a member of
any committee designated by the Board of Directors shall, in the performance of
his duties, be duly protected in relying in good faith upon the books of account
or reports made to the Corporation by any of its officers, or by an independent
certified public accountant, or by an appraiser selected with reasonable care by
the Board of Directors or by any committee, or in relying in good faith upon
other records of the Corporation.
ARTICLE 4. MEETINGS OF THE BOARD OF DIRECTORS
Section 4.1 Place. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
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Section 4.2 Annual Meeting. The first meeting of each newly elected Board of
Directors shall be held immediately following the annual meeting of stockholders
or any special meeting held in lieu thereof and no notice of such meeting shall
be necessary to the newly elected Directors in order legally to constitute the
meeting.
Section 4.3 Regular Meetings. 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 4.4 Special Meetings. Special meetings of the Board may be called by
the Chairman or President on two 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 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 4.5 Quorum. At all meetings of the Board a majority of the Directors
then in office shall constitute a quorum for the transaction of business and,
except as otherwise provided in the Amended and Restated Certificate of
Incorporation or these By-laws, 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
Amended and Restated 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 4.6 Action Without Meeting. Unless otherwise restricted by the
Amended and Restated 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.
Section 4.7 Telephone Meetings. Unless otherwise restricted by the Amended
and Restated 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.
ARTICLE 5. COMMITTEES OF DIRECTORS
Section 5.1 Designation. (a) The Board of Directors may, by resolution
passed 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.
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(b) In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member.
(c) Any such committee, to the extent provided in the resolution of the
Board of Directors designating the committee, 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 amending the Amended
and Restated Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-laws of the Corporation and, unless the
resolution or the Amended and Restated Certificate of Incorporation so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. 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 5.2 Records of Meetings. Each committee shall keep regular minutes
of its meetings and report the same to the Board of Directors when required.
ARTICLE 6. NOTICES
Section 6.1 Method of Giving Notice. Whenever, under any provision of the
law or of the Amended and Restated Certificate of Incorporation or of these
By-laws, notice is required to be given to any Director or stockholder, such
notice shall be given in writing by the Secretary or the person or persons
calling the meeting by leaving such notice with such Director or stockholder at
his residence or usual place of business or by mailing it 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 6.2 Waiver. Whenever any notice is required to be given under any
provision of law or of the Amended and Restated 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. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends
the meeting for express purpose of objecting at the beginning of the meeting to
the transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE 7. OFFICERS
Section 7.1 In General. The officers of the Corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary and a
Treasurer. The Board of Directors may also choose a Chairman of the Board, one
or more Vice Presidents, Assistant Secretaries and Assistant Treasurers. Any
number of offices may be held by the same person, unless the Amended and
Restated Certificate of Incorporation or these By-laws otherwise provide. In
addition, the President may designate one or more employees of the Corporation
having the title of vice president or assistant vice president, but who shall
not be officers of the Corporation, who shall hold such titles at the pleasure
of the President and who shall have such powers and duties as the President may
from time to time designate
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Section 7.2 Election of President, Secretary and Treasurer. The Board of
Directors at its first meeting after each annual meeting of stockholders shall
choose a President, a Secretary and a Treasurer.
Section 7.3 Election of Other Officers. The Board of Directors may appoint
such other officers and agents as it shall deem appropriate 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 7.4 Salaries. The salaries of all officers and agents of the
Corporation may be fixed by the Board of Directors.
Section 7.5 Term of Office. 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 in the manner
specified in Section 8.2.
Section 7.6 Duties of President and Chairman of the Board. The Board shall
have a Chairman of the Board who shall preside at all meetings of stockholders
and at all meetings of the Board of Directors. The President shall be the chief
executive officer of the Corporation, shall preside at meetings of the Board of
Directors in the absence of the Chairman of the Board, 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. The
President 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 Chairman of the Board, if any, shall
make his counsel available to the other officers of the Corporation, shall be
authorized to sign stock certificates on behalf of the Corporation, shall
preside at all meetings of the Directors at which he is present, and, in the
absence of the President at all meetings of the stockholders, and shall have
such other duties and powers as may from time to time be conferred upon him by
the Directors.
Section 7.7 Duties of Vice President. 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 not otherwise
conferred upon the Chairman of the Board, if any, 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.
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Section 7.8 Duties of Secretary. 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, except as otherwise provided in these By-laws, 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 charge of the stock ledger (which
may, however, be kept by any transfer agent or agents of the Corporation under
his direction) and of the corporate seal of the Corporation.
Section 7.9 Duties of Assistant Secretary. 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.
Section 7.10 Duties of Treasurer. 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. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers from such
disbursements, and shall render the President and the Board of Directors, at its
regular meetings, or when the Board of Directors so requires, an account of all
of his transactions as Treasurer and of the financial condition of the
Corporation. 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 this 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 7.11 Duties of Assistant Treasurer. The Assistant Treasurer, or if
there shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors (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 8. RESIGNATIONS, REMOVALS AND VACANCIES
Section 8.1 Directors. (a) Resignations. Any Director may resign at any time
by giving written notice to the Board of Directors or the President or the
Secretary. Such resignation shall take effect at the time specified therein; and
unless, otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
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(b) Removals. Any Director may be removed from office or the entire Board of
Directors may be removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors, unless otherwise
specified by law or the Amended and Restated Certificate of Incorporation.
The Directors may terminate or modify the authority of any agent or
employee. The Directors may remove any officer from office with or without
assignment of cause by vote of a majority of the Directors then in office.
If cause is assigned for removal of any Director or officer, such Director
or officer may be removed only after a reasonable notice and opportunity to be
heard before the body proposing to remove him.
No Director or officer who resigns or is removed shall have any right to any
compensation as such Director or officer for any period following his
resignation or removal, or any right to damages on account of such removal
whether his compensation be by the month or by the year or otherwise, provided,
however, that the foregoing provision shall not prevent such Director or officer
from obtaining damages for breach of any contract of employment legally binding
upon the Corporation.
(c) Vacancies. Vacancies resulting from any increase in the authorized
number of Directors or any vacancies in the Board of Directors resulting from
death, resignation, retirement, disqualification, removal from office or other
cause may be filled only by a majority vote of the Directors then in office,
though less than a quorum.
If the office of any officer becomes vacant, the Directors may choose or
appoint a successor by vote of a majority of the Directors present at the
meeting at which such choice or appointment is made.
Each successor director or officer shall hold office for the unexpired term
of his predecessor and until his successor shall be elected or appointed, as the
case may be, and qualified, or until he sooner dies, resigns, is removed or
becomes disqualified.
Section 8.2 Officers. The Board of Directors may, at any meeting called for
the purpose, by vote of a majority of their entire number, remove from office
any officer of the Corporation, with or without cause. The Board of Directors
may, at any meeting, by vote of a majority of the Directors present at such
meeting, accept the resignation of any officer of the Corporation or remove or
accept the resignation of any employee or agent or any member of any committee
regardless of how appointed, and any officer, agent or employee other than an
executive officer may also be removed with or without cause, or his resignation
accepted by the committee or officer which appointed such person. Any vacancy
occurring in the office of President, Secretary or Treasurer shall be filled by
the Board of Directors and the officers so chosen shall hold office subject to
the By-laws for the unexpired term in respect of which the vacancy occurred and
until their successors shall be elected and qualify.
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ARTICLE 9. CERTIFICATES OF STOCK
Section 9.1 Issuance of Stock. The Directors may, at any time and from time
to time, if all of the shares of capital stock which the Corporation is
authorized by its Amended and Restated Certificate of Incorporation to issue
have not been issued, subscribed for, or otherwise committed to be issued, issue
or take subscriptions for additional shares of its capital stock up to the
amount authorized in its Amended and Restated Certificate of Incorporation. Such
stock shall be issued and the consideration paid therefor in the manner
prescribed by law.
Section 9.2 Right to Certificate; Form. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by, or in the name
of the Corporation by, the Chairman of the Board, the President or a Vice
President and the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, certifying the number of shares owned by
him in the Corporation. Certificates may be issued for partly paid shares and in
such case upon the face or back of the certificates issued to represent any such
partly paid shares, the total amount of the consideration to be paid therefor,
and the amount paid thereon shall be specified.
Section 9.3 Facsimile Signature. Any of or all 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 he were such officer, transfer agent or registrar at the date of issue.
Section 9.4 Lost Certificates. 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,
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. 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.
Section 9.5 Transfer of Stock. 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.
Section 9.6 Registered Stockholders. 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.
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ARTICLE 10. EXECUTION OF PAPERS
Except as otherwise provided in these By-laws or as the Board of Directors
may generally or in particular cases otherwise determine, all deeds, leases,
transfers, contracts, bonds, notes, checks, drafts and other instruments
authorized to be executed on behalf of the Corporation shall be executed by the
President or the Treasurer.
ARTICLE 11. FISCAL YEAR
Except as from time to time otherwise provided by the Board of Directors,
the fiscal year of the Corporation shall be the twelve month period ending on
the Saturday closest to April 30.
ARTICLE 12. SEAL
The Corporate seal shall have inscribed thereon the name of the Corporation,
the year of its organization and the word "Delaware." The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE 13. OFFICES
In addition to its principal office, the Corporation may 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 14. INDEMNIFICATION
Section 14.1 Actions other than by or in the Right of the Corporation. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceedings, 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 may
be 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
reasonable cause to believe that his conduct was unlawful.
Section 14.2 Actions by or in the Right of the Corporation. 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 interests 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 unless and only to the
extent that the Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such exereses
which the Court of Chancery of the State of Delaware or such other court shall
deem proper.
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Section 14.3 Success on the Merits. To the extent that any person described
in Sections 14.1 or 14.2 has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in said Sections, 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 14.4 Specific Authorization. Any indemnification under Sections 14.1
or 14.2 (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of any
person described in said Sections is proper in the circumstances because he has
met the applicable standard of conduct set forth in said Sections. 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, or (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 stockholders of the Corporation.
Section 14.5 Advance Payment. Expenses incurred in defending a civil or
criminal 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 any person described in said Section to repay
such amount if it shall ultimately be determined that he is not entitled to
indemnification by the Corporation as authorized in this Article 14.
Section 14.6 Non-Exclusivity. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other Sections of this Article
14 shall not be deemed exclusive of any other rights to which those provided
indemnification or advancement of expenses may be entitled under any By-law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office.
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Section 14.7 Insurance. The Board of Directors may authorize, by a vote of
the majority of the full board, the Corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officers employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Article 14.
Section 14.8 Continuation of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Article 14 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 a person.
Section 14.9 Severability. If any word, clause or provision of this Article
14 or any award made hereunder shall for any reason be determined to be invalid,
the provisions hereof shall not otherwise be affected thereby but shall remain
in full force and effect.
Section 14.10 Intent of Article. The intent of this Article 14 is to provide
for indemnification and advancement of expenses to the fullest extent permitted
by Section 14.5 of the General Corporation Law of Delaware. To the extent that
such Section or any successor section may be amended or supplemented from time
to time, this Article 14 shall be amended automatically and construed so as to
permit indemnification and advancement of expenses to the fullest extent from
time to time permitted by law.
ARTICLE 15. AMENDMENTS
These By-laws may be altered, amended or repealed or new By-laws may be
adopted by the stockholders or by a majority of the full Board of Directors when
such power is conferred upon the Board of Directors by the Amended and Restated
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 is contained in the notice of such special meeting, or by the
unanimous written consent of the Directors. 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.
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