SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1 TO FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Thermo Instrument Systems Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 04-2925809
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(State of Incorporation or Organization) (I.R.S. Employer Identification No.)
81 Wyman Street, Waltham, Massachusetts 02454
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(Address of Principal Executive Offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. [X]
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [ ]
Securities Act registration statement file number to which this form
relates: _________ (If applicable)
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
-------------------- -------------------------------
Common Stock, par value American Stock Exchange
$0.10 per share
Securities to be registered pursuant to Section 12(g) of the Act:
None
----
(Title of Class)
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
The authorized capital stock of Thermo Instrument Systems Inc. (the
"Corporation") consists of 250,000,000 shares of common stock, $0.10 par value
per share (the "Common Stock"). The following description of the capital stock
of the Corporation is qualified in its entirety by reference to the
Corporation's Restated Certificate of Incorporation, as amended (the "Restated
Certificate of Incorporation"), and Bylaws (the "Bylaws"), copies of which have
been filed with the Securities and Exchange Commission.
Common Stock
Holders of Common Stock are entitled to one vote per share on all matters
to be voted upon by the stockholders. There are no cumulative voting rights. The
holders of Common Stock have no preemptive rights or rights to convert their
Common Stock into any other securities. At all meetings of stockholders of the
Corporation, all questions, except as otherwise expressly provided for by
statute, the Restated Certificate of Incorporation or the Bylaws, shall be
determined by a majority vote of the stockholders present in person or
represented by proxy. The Common Stock is not subject to redemption. Upon any
liquidation, distribution or sale of assets, dissolution or winding up of the
Corporation, the holders of Common Stock are entitled to share pro rata in the
assets of the Corporation available for distribution after provision for the
payment of creditors. The outstanding shares of Common Stock are fully paid and
nonassessable. There are no restrictions on transferability contained in the
Corporation's Restated Certificate of Incorporation or Bylaws. Holders of Common
Stock are entitled to receive ratably such dividends as may be declared by the
Board of Directors out of funds legally available therefor. The Common Stock is
listed on the American Stock Exchange. Thermo Electron Corporation ("Thermo
Electron") beneficially owns a majority of the Common Stock, and thus has the
power to elect all of the members of the Corporation's Board of Directors.
Certain Charter, Bylaw and Statutory Provisions
The ownership of a majority interest in the Corporation by Thermo
Electron, either alone or in combination with certain provisions, described
below, of the Corporation's Restated Certificate of Incorporation, its Bylaws
and Section 203 of the General Corporation Law of the State of Delaware
(discussed below), could have the effect of delaying, deferring or preventing a
change in control of the Corporation.
The Corporation's Bylaws provide that special meetings of stockholders may
be called only by the Corporation's Board of Directors or certain officers.
Stockholders are not authorized by the Corporation's Bylaws to call a special
meeting or to require that the Board of Directors call a special meeting of
stockholders.
<PAGE>
The Corporation's Restated Certificate of Incorporation includes a
provision eliminating the liability of its directors to the Corporation or to
its stockholders for money damages, to the extent permitted by Delaware law. In
addition, the Corporation's Bylaws contain provisions providing for the
indemnification of the Corporation's officers and directors to the maximum
extent permitted by Delaware law from claims, liabilities and expenses to which
they may be or become liable by reason of their being officers or directors of
the Corporation.
Section 203 of Delaware General Corporation Law
The Corporation is subject to Section 203 of the General Corporation Law
of the State of Delaware ("Section 203"), which generally prohibits any Delaware
corporation that has a class of securities listed on a national securities
exchange or more than 2,000 stockholders of record from engaging in a "business
combination" with an "interested stockholder" for a period of three years after
the time of the transaction in which the person becomes an interested
stockholder, unless either (i) the interested stockholder obtains the approval
of the Board of Directors prior to becoming an interested stockholder, (ii) the
interested stockholder owned 85% of the outstanding voting stock of the
corporation (excluding shares held by certain affiliates of the corporation) at
the time he became an interested stockholder or (iii) the business combination
is approved by both the Board of Directors and the holders of two-thirds of the
outstanding voting stock of the corporation (excluding shares held by the
interested stockholder), voting at an annual or special meeting of the
stockholders and not acting by written consent. An "interested stockholder"
generally is a person who, together with affiliates and associates, owns (or at
any time within the prior three years did own) 15% or more of the corporation's
outstanding voting stock. A "business combination" includes mergers,
consolidations, stock sales, asset sales and other transactions involving the
corporation or any direct or indirect majority-owned subsidiary of the
corporation that results in a financial benefit to the interested stockholder.
Notwithstanding the foregoing, business combinations with Thermo Electron
and its affiliates are not subject to the provisions of Section 203.
Item 2. Exhibits.
1. Restated Certificate of Incorporation of the Corporation (filed as Exhibit
3.1 to the Corporation's Annual Report on Form 10-K for the fiscal year
ended January 1, 1994 [File No. 1-9786] and incorporated herein by
reference).
2. Amendment to Restated Certificate of Incorporation of the Corporation
(filed as Exhibit 3.1 to the Corporation's Quarterly Report on Form 10-Q
for the quarter ended June 29, 1996 [File No. 1-9786] and incorporated
herein by reference).
3. Bylaws of the Corporation.
4. Specimen Common Stock Certificate (filed as Exhibit 4(b) to the
Corporation's Registration Statement on Form S-1 [Reg. No. 33-6762] and
incorporated herein by reference).
<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.
THERMO INSTRUMENT SYSTEMS INC.
By: /s/ Theo Melas-Kyriazi
--------------------------------
Theo Melas-Kyriazi
Chief Financial Officer
Date: January 24, 2000
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Exhibit 3
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As Amended through
January 17, 1990
THERMO INSTRUMENT SYSTEMS INC.
BY-LAWS
TABLE OF CONTENTS
Title Page
Article I - General.......................................................1
Section 1.1 Offices.................................................1
Section 1.2. Seal....................................................1
Section 1.3. Fiscal Year.............................................1
Article II - Stockholders.................................................1
Section 2.1. Place of Meeting........................................1
Section 2.2. Annual Meeting..........................................1
Section 2.3. Quorum..................................................1
Section 2.4. Right to Vote; Proxies..................................2
Section 2.5. Record Date.............................................2
Section 2.6. Voting..................................................2
Section 2.7. Notice of Annual Meetings...............................2
Section 2.8. Stockholders' List......................................2
Section 2.9. Special Meetings........................................2
Section 2.10.Notice of Special Meetings..............................2
Section 2.11.Stockholders' Action by Consent.........................3
Article III - Directors...................................................3
Section 3.1. Number of Directors.....................................3
Section 3.2. Change in Number of Directors; Vacancies................3
Section 3.3. Resignation.............................................4
Section 3.4. Removal.................................................4
Section 3.5. Place of Meetings and Books.............................4
Section 3.6. General Powers..........................................4
Section 3.7. Executive Committee.....................................4
Section 3.8. Other Committees........................................4
Section 3.9. Power Denied to Committees..............................4
Section 3.10.Substitute Committee Member ............................5
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Title Page
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Section 3.11. Compensation of Directors..................................5
Section 3.12. Notice of Meetings.........................................5
Section 3.13. Regular Meetings...........................................5
Section 3.14. Special Meetings...........................................5
Section 3.15. Quorum.....................................................5
Section 3.16. Telephonic Participation in Meetings.......................6
Section 3.17. Action by Consent..........................................6
Article IV - Officers.......................................................6
Section 4.1. Selection; Statutory Officers..............................6
Section 4.2. Time of Election...........................................6
Section 4.3. Additional Officers........................................6
Section 4.4. Terms of Office............................................6
Section 4.5. Compensation of Officers...................................6
Section 4.6. Chairman of the Board......................................6
Section 4.7. President..................................................7
Section 4.8. Vice-Presidents............................................7
Section 4.9. Treasurer..................................................7
Section 4.10. Secretary..................................................7
Section 4.11. Assistant Secretary........................................8
Section 4.12. Assistant Treasurer........................................8
Section 4.13. Subordinate Officers.......................................8
Article V - Stock...........................................................8
Section 5.1 Stock.......................................................8
Section 5.2. Transfers of Stock..........................................8
Section 5.3. Record Date.................................................9
Section 5.4. Transfer Agent and Registrar................................9
Section 5.5. Dividends...................................................9
1. Power to Declare.........................................9
2. Reserves.................................................9
Section 5.6. Lost, Stolen or Destroyed Certificates......................9
Section 5.7. Inspection of Books.........................................9
Article VI - Miscellaneous Management Provisions...........................10
Section 6.1. Checks, Drafts and Notes..................................10
Section 6.2. Notices...................................................10
Section 6.3. Conflict of Interest......................................10
Section 6.4. Voting of Securities Owned by this Corporation............11
<PAGE>
Title Page
Article VII - Indemnification..............................................11
Section 7.1. Power to Indemnify in Actions, Suits or Proceedings
other than those by or in the Right of the Corporation....11
Section 7.2. Power to Indemnify in Actions, Suits or Proceedings
by or in the Right of the Corporation.....................11
Section 7.3. Authorization of Indemnification..........................12
Section 7.4. Good Faith Defined........................................12
Section 7.5. Indemnifica13on by a Court................................13
Section 7.6. Expenses Payable in Advance...............................13
Section 7.7. Non-Exclusivity of Indemnification
And Advancement of Expenses...............................13
Section 7.8. Insurance.................................................13
Section 7.9. Meaning of "Corporation" for Purposes of Article VII......13
Section 7.10. Survival of Indemnification and Advancement of Expenses...14
Section 7.11. Severability..............................................14
Section 7.12. Intent of Article.........................................14
Article VIII - Amendments..................................................14
Section 8.1. Amendments................................................14
<PAGE>
THERMO INSTRUMENT SYSTEMS INC.
BY-LAWS
ARTICLE I - GENERAL
Section 1.1. Offices. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware. The Corporation may also
have offices at such other places both within and without the State of Delaware
as the Board of Directors may from time to time determine or the business of the
corporation may require.
Section 1.2. Seal. The seal of the corporation shall, upon issuance, be in
the form of a circle and shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware" and may reside at the corporate offices.
Section 1.3. Fiscal Year. The fiscal year of the corporation shall be the
52 or 53 weeks ending on the Saturday nearest December 31 in each year.
ARTICLE II - STOCKHOLDERS
Section 2.1. Place of Meetings. All meetings of the stockholders shall be
held at such place or places within or without the State of Delaware as may be
fixed from time to time by the Board of Directors.
Section 2.2. Annual Meeting. The annual meeting of the stockholders shall
be held each year on such date and at such time as the Board of Directors may
determine. At each annual meeting the stockholders entitled to vote shall elect
a Board of Directors by plurality vote by ballot, and they may transact such
other corporate business as may properly be brought before the meeting. At the
annual meeting any business may be transacted, irrespective of whether the
notice calling such meeting shall have contained a reference thereto, except
where notice is required by law, the certificate of incorporation, or these
by-laws.
Section 2.3. Quorum. At all meetings of the stockholders 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 requisite
for the transaction of business except as otherwise provided by law, by the
certificate of incorporation or by these by-laws. If, however, such majority
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or by proxy, by a
majority vote, shall have power to adjourn the meeting from time to time without
notice other than announcement at the meeting until the requisite amount of
voting stock shall be present. If the adjournment is for more than 30 days, or
<PAGE>
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. At such adjourned meeting, at which the
requisite amount of voting stock shall be represented, any business may be
transacted which might have been transacted if the meeting had been held as
originally called.
Section 2.4. Right to Vote; Proxies. Each stockholder having the right to
vote at any meeting shall be entitled to one vote for each share of stock held
by him. Any stockholder entitled to vote at any meeting of stockholders may vote
either in person or by proxy, but no proxy which is dated more than three years
prior to the meeting at which it is offered shall confer the right to vote
thereat unless the proxy provides that it shall be effective for a longer
period. Every proxy shall be in writing, subscribed by a stockholder or his duly
authorized attorney in fact, and dated, but need not be sealed, witnessed, or
acknowledged.
Section 2.5. Record Date. Except where the transfer books of the
corporation shall have been closed, or a date shall have been fixed as the
record date for the determination of its stockholders entitled to vote as
provided in Section 5.3 of these by-laws, no share of stock shall be voted at
any election for directors which shall have been transferred on the books of the
corporation within twenty (20) days next preceding said election of directors.
Section 2.6. Voting. At all meetings of stockholders all questions, except
as otherwise expressly provided for by statute, the certificate of incorporation
or these by-laws, shall be determined by a majority vote of the stockholders
present in person or represented by proxy. All elections shall be decided by a
majority of the shares voting thereon.
Section 2.7. Notice of Annual Meetings, Written notice of the annual
meeting of the stockholders shall be mailed to each stockholder entitled to vote
thereat at such address as appears on the stock books of the corporation at
least ten (10) days (and not more than sixty (60) days) prior to the meeting. It
shall be the duty of every stockholder to furnish to the Secretary of the
corporation or to the transfer agent, if any, of the class of stock owned by
him, his post-office address and to notify said Secretary or transfer agent of
any change therein.
Section 2.8. Stockholders' List. A complete list of the stockholders
entitled to vote at any meeting of stockholders, arranged in alphabetical order
and showing the address of each stockholder, and the number of shares registered
in the name of each stockholder, shall be prepared by the Secretary and filed
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, at least ten days before such meeting,
and shall at all times during the usual hours for business, and during the whole
time of said election, be open to the examination of any stockholder for a
purpose germane to the meeting.
<PAGE>
Section 2.9. Special Meetings. Special meetings of the stockholders for any
purpose or purposes, unless otherwise provided by statute, may be called by the
Board of Directors, the Chairman of the Board, if any, the President or any Vice
President.
Section 2.10. Notice of Special Meetings. Written notice of a special
meeting of stockholders, stating the time and place and object thereof shall be
mailed, postage prepaid, not less than ten (10) nor more than sixty (60) days
before such meeting, to each stockholder entitled to vote thereat, at such
address as appears on the books of the corporation. No business may be
transacted at such meeting except that referred to in said notice, or in a
supplemental notice given also in compliance with the provisions hereof; or such
other business as may be germane or supplementary to that stated in said notice
or notices.
Section 2.11. Stockholders' Action by Consent. Whenever the vote of
stockholders at a meeting thereof is required or permitted to be taken in
connection with any corporate action by any provisions of the statutes, the
certificate of incorporation, or these by-laws, the meeting and vote of
stockholders may be dispensed with, and any corporate action upon which a vote
of stockholders is required or permitted may be taken with the written consent
of stockholders having not less than 50% of all of the stock entitled to vote
upon the action if a meeting were held; provided that in no case shall the
written consent be by holders having less than the minimum percentage of the
total vote required by statute for the proposed corporate action and provided
that prompt notice be given to all stockholders of the taking of such corporate
action without a meeting and by less than unanimous consent.
ARTICLE III- DIRECTORS
Section 3.1. Number of Directors. Except as otherwise provided by law, the
certificate of incorporation or these by-laws, the property and business of the
corporation shall be managed by or under the direction of a board of not less
than three nor more than thirteen directors. Within the limits specified, the
number of directors shall be determined by resolution of the Board of Directors
or by the stockholders at the annual meeting. Directors need not be
stockholders. The directors shall be elected by ballot at the annual meeting of
the stockholders and each director shall be elected to serve until his successor
shall be elected and shall qualify or until his earlier resignation or removal;
provided that in the event of failure to hold such meeting or to hold such
election at such meeting, such election may be held at any special meeting of
the stockholders called for that purpose. If the office of any director becomes
vacant by reason of death, resignation, disqualification, removal, failure to
elect, or otherwise, the remaining directors, although less than a quorum, by a
majority vote of such remaining directors may elect a successor or successors
who shall hold office for the unexpired term or until their earlier resignation
or removal. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, although less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are elected and qualified or until
their earlier resignation or removal.
<PAGE>
Section 3.2. Change in Number of Directors; Vacancies. The maximum number
of directors may be increased by an amendment to these by-laws adopted by a
majority vote of the Board of Directors or by a majority vote of the capital
stock having voting power, and if the number of directors is so increased by
action of the Board of Directors or of the stockholders or otherwise, then the
additional directors may be elected in the manner provided in Section 3.1 of
these by-laws for the filling of vacancies in the Board of Directors or at the
annual meeting of stockholders or at a special meeting called for that purpose.
In the event of a vacancy in the Board of Directors, the remaining directors,
except as otherwise provided by law or these by-laws, may exercise the powers of
the full board until the vacancy is filled.
Section 3.3. Resignation. Any director of this corporation may resign at
any time by giving written notice to the Chairman of the Board, if any, the
President or the Secretary of the corporation. Such resignation shall take
effect at the time specified therein, at the time of receipt if no time is
specified therein and at the time of acceptance if the effectiveness of such
resignation is conditioned upon its acceptance. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
Section 3.4. Removal. Any director or the entire Board of Directors may be
removed with or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
Section 3.5. Place of Meetings and Books. The Board of Directors may hold
their meetings and keep the books of the corporation outside the State of
Delaware, at such places as they may from time to time determine.
Section 3.6. General Powers. In addition to the powers and authority
expressly conferred upon them by these by-laws, the board may exercise all such
powers of the corporation and do all such lawful acts and things as are not by
statute or by the certificate of incorporation or by these by-laws directed or
required to be exercised or done by the stockholders.
Section 3.7. Executive Committee. There may be an executive committee of
one or more directors designated by resolution passed by a majority of the whole
board. The act of a majority of the members of such committee shall be the act
of the committee. Said committee may meet at stated times or on notice to all by
any of their own number, and shall have and may exercise those powers of the
Board of Directors in the management of the business affairs of the Company as
are provided by law and may authorize the seal of the corporation to be affixed
to all papers which may require it. Vacancies in the membership of the committee
shall be filled by the Board of Directors at a regular meeting or at a special
meeting called for that purpose.
<PAGE>
Section 3.8. Other Committees. The Board of Directors may also designate
one or more committees in addition to the executive committee, by resolution or
resolutions passed by a majority of the whole board; such committee or
committees shall consist of one or more directors of the corporation, and to the
extent provided in the resolution or resolutions designating them, shall have
and may exercise specific powers of the Board of Directors in the management of
the business and affairs of the corporation to the extent permitted by statute
and shall have power to authorize the seal of the corporation to be affixed to
all papers which may require it. 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 3.9. Powers Denied to Committees. Committees of the Board of
Directors shall not, in any event, have any power or authority to amend the
certificate of incorporation, adopt an agreement of merger or consolidation,
recommend to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommend to the
stockholders a dissolution of the corporation or a revocation or a dissolution
or to amend the by-laws of the corporation. Further, committees of the Board of
Directors shall not have any power or authority to declare a dividend or to
authorize the issuance of stock.
Section 3.10. Substitute Committee Member. In the absence or on the
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 such absent or disqualified
member. Any committee shall keep regular minutes of its proceedings and report
the same to the board as may be required by the board.
Section 3.11. Compensation of Directors. The Board of Directors shall have
the power to fix the compensation of directors and members of committees of the
Board. The directors may be paid their expenses, if any, of attendance at each
meeting of the Board of Directors and/or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
Section 3.12. Notice of Meetings. The newly elected board may meet at such
place and time as shall be fixed and announced by the Chairman of the Board, the
President or Secretary, for the purpose of organization or otherwise, and no
further notice of such meeting shall be necessary to the newly elected directors
in order legally to constitute the meeting, provided a quorum shall be present,
or they may meet at such place and time as shall be stated in a notice given to
such directors either personally or by telephone, telecopy, cable, commercial
delivery service, telex, telegram or similar means twenty-four (24) hours prior
to such meeting, or as shall be fixed by the consent in writing of all the
directors.
<PAGE>
Section 3.13. Regular Meetings. Regular meetings of the board may be held
without notice at such time and place as shall from time to time be determined
by the board.
Section 3.14. Special Meetings. Special meetings of the board may be called
by the Chairman of the Board, if any, the President or Secretary, on twenty-four
(24) hours' notice to each director, either personally or by telephone,
telecopy, cable, commercial delivery service, telex, telegram, or similar means
to his business or home address; special meetings shall be called by the
Secretary in like manner and on like notice, on the written request of two
directors.
Section 3.15. Quorum. At all meetings of the Board of Directors, a majority
of the total number of directors shall be necessary and sufficient to constitute
a quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically permitted or
provided by statute, or by the certificate of incorporation, or by these
by-laws. If at any meeting of the board there shall be less than a quorum
present, a majority of those present may adjourn the meeting from time to time
until a quorum is obtained, and no further notice thereof need be given other
than by announcement at said meeting which shall be so adjourned.
Section 3.16. Telephonic Participation in Meetings. Members of the Board of
Directors or any committee designated by such board may participate in a meeting
of the board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
section shall constitute presence in person at such meeting. Notwithstanding
anything to the contrary in these by-laws, meetings of the board or a committee
by means of conference telephone or similar communications equipment may be
called by the Chairman of the Board, if any, the President or Secretary on one
(1) hours' notice to each director delivered by telephone to his business
address.
Section 3.17. Action by Consent. Unless otherwise restricted by the
certificate of incorporation or these by-laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if written consent thereto is signed by all
members of the board or of such committee as the case may be and such written
consent is filed with the minutes of proceedings of the board or committee.
ARTICLE IV - OFFICERS
Section 4.1. Selection; Statutory Officers. The officers of the corporation
shall be chosen by the Board of Directors. There shall be a President, a
Secretary and a Treasurer, and there may be a Chairman of the Board of
Directors, one or more Vice Presidents, one or more Assistant Secretaries, and
one or more Assistant Treasurers, as the Board of Directors may elect. The
office of President and Secretary shall not be held by the same person.
<PAGE>
Section 4.2. Time of Election. The officers above named shall be chosen by
the Board of Directors at its first meeting after each annual meeting of
stockholders. None of said officers need be a director.
Section 4.3. Additional Officers. The board may appoint such other officers
and agents as it shall deem necessary, who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board.
Section 4.4. Terms of Office. Each officer of the corporation shall hold
office until his successor is chosen and qualified, or until his earlier
resignation or removal. Any officer elected or appointed by the Board of
Directors may be removed at any time by the Board of Directors.
Section 4.5. Compensation of Officers. The Board of Directors shall have
power to fix the compensation of all officers of the corporation. It may
authorize any officer, upon whom the power of appointing subordinate officers
may have been conferred, to fix the compensation of such subordinate officers.
Section 4.6. Chairman of the Board. The Chairman of the Board of Directors
shall preside at all meetings of the stockholders and directors, and shall have
such other duties as may be assigned to him from time to time by the Board of
Directors.
Section 4.7. President. Unless the Board of Directors otherwise determines,
the President shall be the chief executive officer and head of the corporation.
Unless there is a Chairman of the Board, the President shall preside at all
meetings of directors and stockholders. Under the supervision of the Board of
Directors and of the executive committee, the President shall have the general
control and management of its business and affairs, subject, however, to the
right of the Board of Directors and of the executive committee to confer any
specific power, except such as may be by statute exclusively conferred on the
President, upon any other officer or officers of the corporation. The President
shall perform and do all acts and things incident to the position of President
and such other duties as may be assigned to him from time to time by the Board
of Directors or the executive committee.
Section 4.8. Vice Presidents. The Vice Presidents shall perform such of the
duties of the President on behalf of the corporation as may be respectively
assigned to them from time to time by the Board of Directors or by the executive
committee or by the President. The Board of Directors or the executive committee
may designate one of the Vice Presidents as the Executive Vice President, and in
the absence or inability of the President to act, such Executive Vice President
shall have and possess all of the powers and discharge all of the duties of the
President, subject to the control of the board and of the executive committee.
<PAGE>
Section 4.9. Treasurer. The Treasurer shall have the care and custody of
all the funds and securities of the corporation which may come into his hands as
Treasurer, and the power and authority to endorse checks, drafts and other
instruments for the payment of money for deposit or collection when necessary or
proper and to deposit the same to the credit of the corporation in such bank or
banks or depository as the Board of Directors or the executive committee, or the
officers or agents to whom the Board of Directors or the executive committee may
delegate such authority, may designate, and he may endorse all commercial
documents requiring endorsements for or on behalf of the corporation. He may
sign all receipts and vouchers for the payments made to the corporation. He
shall render an account of his transactions to the Board of Directors or to the
executive committee as often as the board or the committee shall require the
same. He shall enter regularly in the books to be kept by him for that purpose
full and adequate account of all moneys received and paid by him on account of
the corporation. He shall perform all acts incident to the position of
Treasurer, subject to the control of the Board of Directors and of the executive
committee. He shall when requested, pursuant to vote of the Board of Directors
or the executive committee, give a bond to the corporation conditioned for the
faithful performance of his duties, the expense of which bond shall be borne by
the corporation.
Section 4.10. Secretary. The Secretary shall keep the minutes of all
meetings of the Board of Directors and of the stockholders; he shall attend to
the giving and serving of all notices of the corporation. Except as otherwise
ordered by the Board of Directors or the executive committee, he shall attest
the seal of the corporation upon all contracts and instruments executed under
such seal and shall affix the seal of the corporation thereto and to all
certificates of shares of the Capital Stock. He shall have charge of the stock
certificate book, transfer book and stock ledger, and such other books and
papers as the Board of Directors or the executive committee may direct. He
shall, in general, perform all the duties of Secretary, subject to the control
of the Board of Directors and of the executive committee. Section 4.11.
Assistant Secretary. The Board of Directors or any two of the officers of the
corporation acting jointly may appoint or remove one or more Assistant
Secretaries of the corporation. Any Assistant Secretary upon his appointment
shall perform such duties of the Secretary, and also any and all such other
duties as the executive committee or the Board of Directors or the President or
the Executive Vice President or the Treasurer or the Secretary may designate.
Section 4.12. Assistant Treasurer. The Board of Directors or any two of the
officers of the corporation acting jointly may appoint or remove one or more
Assistant Treasurers of the corporation. Any Assistant Treasurer upon his
appointment shall perform such of the duties of the Treasurer, and also any and
all such other duties as the executive committee or the Board of Directors or
the President or the Executive Vice President or the Treasurer or the Secretary
may designate.
Section 4.13. Subordinate Officers. The Board of Directors may select such
subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority, and perform such duties as the
Board of Directors may prescribe. The Board of Directors may, from time to time,
authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
<PAGE>
ARTICLE V - STOCK
Section 5.1. Stock. Each stockholder shall be entitled to a certificate or
certificates of stock of the corporation in such form as the Board of Directors
may from time to time prescribe. The certificates of stock of the corporation
shall be numbered and shall be entered in the books of the corporation as they
are issued. They shall certify the holder's name and number and class of shares
and shall be signed by both of (a) either the President or a Vice President, and
(b) any one of the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary, and shall be sealed with the corporate seal of the
corporation. If such certificate is countersigned (1) by a transfer agent other
than the corporation or its employee, or, (2) by a registrar other than the
corporation or its employee, the signature of the officers of the corporation
and the corporate seal may be facsimiles. In case any officer or officers who
shall have signed, or whose facsimile signature or signatures shall have been
used on, any such certificate or certificates shall cease to be such officer or
officers of the corporation, whether because of death, resignation or otherwise,
before such certificate or certificates shall have been delivered by the
corporation, such certificate or certificates may nevertheless be adopted by the
corporation and be issued and delivered as though the person or persons who
signed such certificate or certificates or whose facsimile signature shall have
been used thereon had not ceased to be such officer or officers of the
corporation.
Section 5.2. Transfers of Stock. Subject to any transfer restrictions then
in force, the shares of stock of the corporation shall be transferable only upon
its books by the holders thereof in person or by their duly authorized attorneys
or legal representatives and upon such transfer the old certificates shall be
surrendered to the corporation by the delivery thereof to the person in charge
of the stock and transfer books and ledgers or to such other person as the
directors may designate by whom they shall be canceled and new certificates
shall thereupon be issued. The corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact thereof and
accordingly shall not be bound to recognize any equitable or other claim to or
interest in such share on the part of any other person whether or not it shall
have express or other notice thereof save as expressly provided by the laws of
Delaware.
Section 5.3. Record Date. The Board of Directors shall fix in advance a
date, not exceeding sixty (60) days preceding the date of any meeting of
stockholders or the date for the payment of any dividend or the date for the
allotment of rights or the date when any change or conversion or exchange of
capital stock is to occur, and in such case only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to such notice of,
and to vote at, such meeting, or to receive payment of such dividend, or to
receive such allotment of rights, or to exercise such rights, as the case may
be, notwithstanding any transfer of any stock on the books of the corporation
after any such record date fixed as aforesaid.
<PAGE>
Section 5.4. Transfer Agent and Registrar. The Board of Directors may
appoint one or more transfer agents or transfer clerks and one or more
registrars and may require all certificates of stock to bear the signature or
signatures of any of them.
Section 5.5. Dividends.
1. Power to Declare. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation and the
laws of Delaware.
2. 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, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 5.6. Lost, Stolen or Destroyed Certificates. No certificates for
shares of stock of the corporation shall be issued in place of any certificate
alleged to have been lost, stolen or destroyed, except upon production of such
evidence of the loss, theft or destruction and upon indemnification of the
corporation and its agents to such extent and in such manner as the Board of
Directors may from time to time prescribe.
Section 5.7. Inspection of Books. The stockholders of the corporation, by a
majority vote at any meeting of stockholders duly called, or in case the
stockholders shall fail to act, the Board of Directors shall have power from
time to time to determine whether and to what extent and at what times and
places and under what conditions and regulations the accounts and books of the
corporation (other than the stock ledger) or any of them, shall be open to
inspection of stockholders; and no stockholder shall have any right to inspect
any account or book or document of the corporation except as conferred by
statute or authorized by the Board of Directors or by a resolution of the
stockholders.
ARTICLE VI - MISCELLANEOUS MANAGEMENT PROVISIONS
Section 6.1. Checks, Drafts and Notes. All checks, drafts or orders for the
payment of money, and all notes and acceptances of the corporation shall be
signed by such officer or officers, agent or agents as the Board of Directors
may designate.
<PAGE>
Section 6.2. Notices.
1. Unless otherwise specified in these by-laws, notices to directors and
stockholders shall be in writing and delivered personally or mailed to the
directors or stockholders at their addresses appearing on the books of the
corporation. Notice by mail shall be deemed to be given at the time when the
same shall be mailed. Notice to directors may also be given by telephone,
telecopy, cable, commercial delivery service, telex, telegram or similar means.
2. Whenever any notice is required to be given under the provisions of the
statutes or of the certificate of incorporation or of these by-laws, a written
waiver of notice, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting, or, in the case of a meeting of the
Board of Directors, participation in a meeting by means of conference telephone
or similar communications equipment, shall constitute a waiver of notice of such
meeting except when the person attends, or participates in, a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
Section 6.3. Conflict of Interest. No contract or transaction between the
corporation and one or more of its directors or officers, or between the
corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the shareholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
shareholders; or (iii) the contract or transaction is fair as to the corporation
as of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof or the shareholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or of a committee which authorizes the contract or
transaction.
Section 6.4. Voting of Securities Owned by this Corporation. Subject always
to the specific directions of the Board of Directors, (a) any shares or other
securities issued by any other corporation and owned or controlled by this
corporation may be voted in person at any meeting of security holders of such
other corporation by the President of this corporation if he is present at such
meeting, or in his absence by the Treasurer of this corporation if he is present
at such meeting, and (b) whenever, in the judgment of the President, it is
desirable for this corporation to execute a proxy or written consent in respect
<PAGE>
to any shares or other securities issued by any other corporation and owned by
this corporation, such proxy or consent shall be executed in the name of this
corporation by the President, without the necessity of any authorization by the
Board of Directors, affixation of corporate seal or countersignature or
attestation by another officer, provided that if the President is unable to
execute such proxy or consent by reason of sickness, absence from the United
States or other similar cause, the Treasurer may execute such proxy or consent.
Any person or persons designated in the manner above stated as the proxy or
proxies of this corporation shall have full right, power and authority to vote
the shares or other securities issued by such other corporation and owned by
this corporation the same as such shares or other securities might be voted by
this corporation.
ARTICLE VII - INDEMNIFICATION
Section 7.1. Power to Indemnify in Actions, Suits or Proceedings other than
those by or in the Right of the Corporation. Subject to Section 3 of this
Article VII, the corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere 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 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 7.2. Power to Indemnify in Actions, Suits or Proceedings by or in
the Right of the Corporation. Subject to Section 3 of this Article VII, 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; except that no indemnification shall be made in respect of any
<PAGE>
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 7.3. Authorization of Indemnification. Any indemnification under
this Article VII (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 1 or Section 2 of this Article VII, as the case may be. Such
determination shall be made (i) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, 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 described
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, without the necessity of authorization
in the specific case.
Section 7.4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VII, a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the corporation or
another enterprise, or on information supplied to him by the officers of the
corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the corporation or another enterprise or on
information or records given or reports made to the corporation or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the corporation or another
enterprise. The term "another enterprise" as used in this Section 4 shall mean
any other corporation or any partnership, joint venture, trust or other
enterprise of which such person is or was serving at the request of the
corporation as a director, officer, employee or agent. The provisions of this
Section 4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Sections 1 or 2 of this Article VII, as the
case may be.
Section 7.5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VII, and
notwithstanding the absence of any determination thereunder, any director,
officer, employee or agent may apply to any court of competent jurisdiction in
the State of Delaware for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article VII. The basis of such indemnification by
<PAGE>
a court shall be a determination by such court that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standards of conduct set forth in Sections 1 or 2 of this
Article VII, as the case may be. Notice of any application for indemnification
pursuant to this Section 5 shall be given to the corporation promptly upon the
filing of such application.
Section 7.6. Expenses Payable in Advance. Expenses incurred in defending or
investigating a threatened or pending action, suit or proceeding may be paid by
the corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in the specific case upon
receipt of an undertaking by or on behalf of the director, officer, employee or
agent to repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the corporation as authorized in this Article VII.
Section 7.7. Non-Exclusivity of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by or granted
pursuant to this Article VII shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any By-Law, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, it
being the policy of the corporation that indemnification of the persons
specified in Sections 1 and 2 of this Article VII shall be made to the fullest
extent permitted by law. The provisions of this Article VII shall not be deemed
to preclude the indemnification of any person who is not specified in Sections 1
or 2 of this Article VII but whom the corporation has the power or obligation to
indemnify under the provisions of the General Corporation Law of the State of
Delaware, or otherwise.
Section 7.8. Insurance. The corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power or the obligation to
indemnify him against such liability under the provisions of this Article VII.
Section 7.9. Meaning of "Corporation" for Purposes of Article VII. For
purposes of this Article VII, references to "the corporation" shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
<PAGE>
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article VII with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
Section 7.10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Section shall, unless otherwise provided when authorized or ratified,
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 7.11. Severability. If any word, clause or provision of this
Article VII 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 7.12. Intent of Article. The intent of this Article VII is to
provide for indemnification to the fullest extent permitted by applicable law,
including Section 145 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 VII shall be amended automatically and construed so
as to permit indemnification to the fullest extent from time to time permitted
by law.
ARTICLE VIII- AMENDMENTS
Section 8.1. Amendments. The by-laws of the corporation may be altered,
amended or repealed at any meeting of the Board of Directors upon notice thereof
in accordance with these by-laws, or at any meeting of the stockholders by the
vote of the holders of the majority of the stock issued and outstanding and
entitled to vote at such meeting, in accordance with the provisions of the
certificate of incorporation and of the laws of Delaware.
