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FORM 10-KSB/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Annual Report Under Section 13 or 15(d) of the
Securities Exchange Act of 1934
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For Fiscal Year Ended December 31, 1996
Commission File #0-15303
UNICO, Inc.
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(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 73-1215433
- ------------------------------- ----------------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
</TABLE>
8380 Alban Road, Springfield, VA 22150
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(Address of principal executive offices)(Zip Code)
(Registrant's telephone no., including area code) (703) 644-0200
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(Former name, former address and former fiscal year,
if changed since last report)
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 par value
Warrants
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No
--- ---
Check if there is no disclosure of delinquent filers in response to Item
405 of Regulation S-B not contained in this form, and no disclosure will be
contained, to the best of the registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form
10-KSB or any amendment to this Form 10-KSB. (X)
Revenues for year ended December 31, 1996. $6,825,875
Aggregate market value of the voting common stock held by non-affiliates
of the registrant as of April 1, 1997, was: $1,589,308
Number of shares of the registrant's common stock outstanding as of
April 1, 1997 was: 8,476,309
1
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PART IV
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K
(a) The following documents are filed as part of this report:
1. Financial statements; see index to financial statement and schedules
immediately following the signature pages of this report. (7)
2. Financial statement schedules; see index to financial statements and
schedules immediately following the signature pages of this report. (7)
3. Exhibits:
The following exhibits are filed with this Form 10-KSB and are identified
by the numbers indicated; see index to exhibits immediately following
financial statements and schedules of this report.
2 Plan of Reorganization and Agreement of Merger among UNICO, Inc.,
AEC Acquisitions, Inc. and Cal-Central Marketing Corporation(1)
3.1 Certificate of Incorporation, as amended(2)
3.2 Bylaws, as amended(2)
3.3 Amendment to the Certificate of Incorporation to increase the
authorized shares of Common Stock(3)
3.4 Bylaws, as amended. (Corrected Version)
4.1 Form of Common Stock Purchase Warrant, dated September 11, l986(4)
4.2 Form of Class B Common Stock Purchase Warrant dated November 1,
1993(3)
4.3 Form of Subordinated Debenture dated October 26, 1993, offered
through Duncan Smith Co.(3)
4.4 Certificate of Designations, Preferences, and Rights of Series A
Convertible Preferred Stock(3)
4.5 Certificate of Designations, Preferences, and Rights of Series A
Redeemable Preferred Stock(3)
4.6 Certificate of Designations, Preferences, and Rights of Series B
Redeemable Preferred Stock(3)
4.7 Certificate of Designations, Preferences, and Rights of Series C
Preferred Stock.
10.1 Employment Agreement between Cal-Central Marketing Corporation and
Jack Brown. (1)
10.2 Employment Agreement between Cal-Central Marketing Corporation and
Gerald Bomstad, Jr. (1)
10.3 Lease of executive offices at 1101-B Sovereign Row, Oklahoma City,
OK 73108. (3)
10.4 Form of Common Stock Purchase Warrant dated October 26, 1993 offered
through Duncan-Smith Co. (3)
10.3 Second Amendment to Lease Agreement Cal-Central Marketing
Corporation(3)
10.6 United Coupon Corporation Franchise Agreement. (2)
17
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
UNICO, Inc.
June 16, 1997 By: /s/ Gerard R. Bernier
-----------------------------------------
Gerard R. Bernier
Chief Executive Officer and President
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------------ ----------------------- ---------
<S> <C> <C>
/s/ Gerard R. Bernier
- ------------------------------ Chief Executive officer June 16, 1997
Gerard R. Bernier Chairman of the Board
/s/ Subhash Ghei
- ------------------------------ Chief Financial officer June 16, 1997
Subhash Ghei
/s/ Gerald Bomstad, Jr.
- ------------------------------ Director June 16, 1997
Gerald Bomstad, Jr.
/s/ Leon Zajdel
- ------------------------------ Director June 16, 1997
Leon Zajdel
/s/ Steven Kronzek
- ------------------------------ Director June 16, 1997
Steven Kronzek
</TABLE>
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EXHIBIT 3.4
UNICO, INC.
(a Delaware corporation)
AMENDED AND RESTATED
BY-LAWS
As adopted by the Stockholders on December 2, 1996.
<PAGE>
TABLE OF CONTENTS
ARTICLE/SECTION Page
I. DEFINITIONS 1
1.01 Definitions 1
1.02 Offices 1
II. OFFICE 1
2.01 Principal Office 1
2.02 Registered Office 1
2.03 Other Offices 2
III. MEETINGS OF STOCKHOLDERS 2
3.01 Annual Meetings 2
3.02 Special Meetings 2
3.03 Place of Meetings 2
3.04 Notice of Meetings 2
3.05 Waiver of Notice 2
3.06 Adjournment of Meeting 3
3.07 Quorum 3
3.08 Stockholder Proposals 3
3.09 Organization 4
3.10 Conduct of Business 4
3.11 List of Stockholders 4
3.12 Closing of Transfer Books or Fixing of Record Date 5
3.13 Voting of Shares 5
3.14 Inspectors 6
3.15 Proxies 6
3.16 Consent of Stockholders in Lieu of Meeting 6
IV. DIRECTORS 6
4.01 General Powers 6
4.02 Number 6
4.03 Nomination of Directors 7
4.04 Election of Directors and Term of Office 8
4.05 Resignations 8
4.06 Removal 8
4.07 Vacancies 8
4.08 Chairman of the Board 8
4.09 Compensation 8
4.10 Corporate Opportunities 8
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V. MEETINGS OF DIRECTORS 9
5.01 Regular Meetings 9
5.02 Place of Meetings 9
5.03 Meetings by Telecommunications 9
5.04 Special Meetings 9
5.05 Notice of Special Meetings 9
5.06 Waiver by Presence 9
5.07 Quorum 10
5.08 Conduct of Business 10
5.09 Action by Consent 10
5.10 Presumption of Assent 10
VI. COMMITTEES 10
6.01 Committees of the Board 10
6.02 Selection of Committee Members 10
6.03 Conduct of Business 10
6.04 Authority 11
6.05 Minutes 11
VII. OFFICERS 11
7.01 Officers of the Corporation 11
7.02 Election and Term 11
7.03 Compensation of Officers 11
7.04 Removal of Officers and Agents 11
7.05 Resignation of Officers and Agents 12
7.06 Bond 12
7.07 President 12
7.08 Vice-Presidents 12
7.09 Secretary 12
7.10 Assistant Secretaries 13
7.11 Treasurer 13
7.12 Assistant Treasurers 13
7.13 Delegation of Authority 13
7.14 Actions with Respect to Securities of Other Corporations 13
7.15 Vacancies 13
VIII. CONTRACTS, LOANS, DRAFTS, DEPOSITS AND ACCOUNTS 14
8.01 Contracts 14
8.02 Loans 14
8.03 Drafts 14
8.04 Deposits 14
8.05 General and Special Bank Accounts 14
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IX. CERTIFICATES FOR SHARES AND THEIR TRANSFER 14
9.01 Certificates for Shares 14
9.02 Transfer of Shares 15
9.03 Lost, Stolen, Destroyed and Mutilated Certificates 15
9.04 Regulations 15
9.05 Holder of Record 15
9.06 Treasury Shares 16
X. INDEMNIFICATION 16
10.01 Action Other Than By or In the Right of the Corporation 16
10.02 Actions By or In the Right of the Corporation 16
10.03 Determination of Right of Indemnification 17
10.04 Indemnification Against Expenses of Successful Party 17
10.05 Advance of Expenses 17
10.06 Other Rights and Remedies 17
10.07 Insurance 17
10.08 Constituent Corporations 18
10.09 Other Insurance 18
10.10 Public Policy 18
XI. NOTICES 18
11.01 General 18
11.02 Waiver of Notice 18
XII. MISCELLANEOUS 19
12.01 Facsimile Signatures 19
12.02 Corporate Seal 19
12.03 Fiscal Year 19
XIII. AMENDMENTS 19
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BY-LAWS
OF
UNICO,INC.
(A Delaware Corporation)
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context clearly requires
otherwise, in these Bylaws:
(a) "Articles of Incorporation" means the Certificates of
Incorporation of UNICO, INC., formerly CMS Advertising, Inc., as filed with
the Secretary of State of the State of Delaware and includes all amendments
thereto subsequently filed.
(b) "Board" means the board of directors of the Corporation.
(c) "Bylaws" means these bylaws as amended and restated by the
Stockholders on December 2, 1996, and includes amendments subsequently
adopted by the Board or by the Stockholders.
(d) "Corporation" means UNICO, Inc.
(e) "Section" refers to sections of these Bylaws.
(f) "Stockholder" means stockholders of record of the Corporation.
Section 1.02. Offices. The title of an office refers to the person or
persons who at any given time perform the duties of that particular office
for the Corporation.
ARTICLE II
OFFICES
Section 2.01. Principal Office. The Corporation may locate its principal
office within or without the state of incorporation as the Board may
determine.
Section 2.02. Registered Office. The registered office of the
Corporation required by law to be maintained in the state of incorporation
may be, but need not be, identical with the principal office of the
Corporation. The Board may change the address of the registered office from
time to time.
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Section 2.03. Other Offices. The Corporation may have offices at such
other places, either within or without the state of incorporation, as the
Board may designate or as the business of the Corporation may require from
time to time.
ARTICLE III
MEETINGS OF STOCKHOLDERS
Section 3.01. Annual Meetings. The Stockholders of the Corporation shall
hold their annual meetings for the purpose of electing directors and for the
transaction of such other proper business as may come before such meetings at
such time, date and place as the Board shall determine by resolution.
Section 3.02. Special Meetings. Special meetings of stockholders for any
purpose or purposes may be called only by the Board or a committee of the
Board duly designated and whose powers and authority include the power to
call such meetings, pursuant to a resolution adopted by a majority of the
members of the Board or Committee then in office.
Section 3.03. Place of Meetings. The Stockholders shall hold all
meetings at such places, within or without the State of Virginia, as the
Board or a committee of the Board shall specify in the notice or waiver of
notice for such meetings.
Section 3.04. Notice of Meetings. Except as otherwise required by law,
the Board or a committee of the Board shall give notice of each meeting of
Stockholders, whether annual or special, not less than 10 nor more than 60
days before the date of the meeting. The Board or a committee of the Board
shall deliver a notice to each Stockholder entitled to vote at such meeting
by delivering a typewritten or printed notice thereof to him personally, or
by depositing such notice in the United States mail, in a postage prepaid
envelope, directed to him at his address as it appears on the records of the
Corporation, or by transmitting a notice thereof to him at such address by
telegraph, telecopy, cable or wireless. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
Stockholder at his address as it appears on the records of the Corporation.
An affidavit of the Secretary or an Assistant Secretary or of the Transfer
Agent of the Corporation that he has given notice shall constitute, in the
absence of fraud, prima facie evidence of the facts stated therein.
Every notice of a meeting of the Stockholders shall state the place,
date and hour of the meeting and, in the case of a special meeting, also
shall state the purpose or purposes of the meeting. Furthermore, if the
Corporation will maintain the list at a place other than where the meeting
will take place, every notice of a meeting of the Stockholders shall specify
where the Corporation will maintain the list of Stockholders entitled to vote
at the meeting.
Section 3.05. Waiver of Notice. Whenever these Bylaws require written
notice, a written waiver thereof, signed by the person entitled to notice,
whether before or after the time stated
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therein, shall constitute the equivalent of notice. Attendance of a person at
any meeting shall constitute a wavier of notice of such meeting, except
when the person attends the 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. No written wavier of notice need
specify either the business to be transacted at, or the purpose or purposes
of any regular or special meeting of the Stockholders, directors or members of
a committee of the Board.
Section 3.06. Adjournment of Meeting. When the Stockholders adjourn a
meeting to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which
the adjournment is taken. At the adjourned meeting, the Stockholders may
transact any business which they may have transacted at the original meeting.
If the adjournment is for more than 30 days or, if after the adjournment, the
Board or a committee of the Board fixes a new record date for the adjourned
meeting, the Board or the committee of the Board shall give notice of the
adjourned meeting to each Stockholder of record entitled to vote at the
meeting.
Section 3.07. Quorum. Except as otherwise required by law, the holders
of a majority of all of the shares of the stock entitled to vote at the
meeting, present in person or by proxy, shall constitute a quorum for all
purposes at any meeting of the Stockholders. In the absence of a quorum at any
meeting or any adjournment thereof, the holders of a majority of the shares of
stock entitled to vote who are present, in person or by proxy, or, in the
absence therefrom of all the Stockholders, any officer entitled to preside
at, or to act as secretary of, such meeting may adjourn such meeting to
another place, date or time.
If the chairman of the meeting gives notice of any adjourned special
meeting of Stockholders to all Stockholders entitled to vote thereat, stating
that those present shall constitute a quorum, then, except as otherwise
required by law, those present at such adjourned meeting shall constitute a
quorum and a majority of the votes cast at such meeting shall determine all
matters.
Section 3.08. Stockholder Proposals.
a. Condition of Submission to Stockholders. No proposal for a
stockholder vote shall be submitted by a stockholder (a "Stockholder
Proposal") to the Corporation's stockholders unless the stockholder
submitting such proposal (the "Proponent") shall have filed a written notice
(a "Proposal Notice") setting forth with particularity (1) the names and
business addresses of the Proponent and all persons or entities (the
"Persons") acting in concert with the Proponent; (2) the name and address of
the Proponent and the Persons identified in clause (1), as they appear on the
Corporation's books (if they so appear); (3) the class and number of shares
of the Corporation beneficially owned by the Proponent and the Persons
identified in clause (1); (4) a description of the Stockholder Proposal
containing all material information relating thereto; and (5) such other
information as the Board of Directors reasonably determines is necessary or
appropriate to enable the Board of Directors and stockholders of the
Corporation to consider the
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Stockholder Proposal. The presiding officer at any stockholders' meeting may
determine that any Stockholder Proposal was not made in accordance with the
procedures prescribed in these Amended and Restated Bylaws (the "Bylaws") or
is otherwise not in accordance with law, and if it is so determined, such
officer shall so declare at the meeting and the Stockholder Proposal shall be
disregarded.
b. Stockholder Proposal Notice. Proposal Notices shall be delivered
to the Secretary at the principal executive office of the Corporation not
later than 120 days in advance of the anniversary date of the Corporation's
proxy statement for the previous year's annual meeting or, in the case of
special meetings at the close of business on the seventh day following the
date on which notice of such meeting is first given to stockholders.
Section 3.09. Organization. Such person as the Board may have
designated or, in the absence of such a person, the highest ranking officer
of the Corporation who is present shall call to order any meeting of the
Stockholders, determine the presence of a quorum and act as chairman of the
meeting. In the absence of the Secretary or an Assistant Secretary of the
Corporation, the chairman shall appoint the secretary of the meeting.
Section 3.10. Conduct of Business. The chairman of any meeting of
Stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
discussion as he deems in order. Unless otherwise determined by the
Chairman, at each meeting of stockholders, the chairman of the meeting shall
fix and announce the date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at the meeting
and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and
regulations as adopted by the Board of Directors, the chairman of the meeting
may establish rules, which need not be in writing, to maintain order for the
conduct of the meeting, including, without limitation, restricting
attendance to bona fide stockholders of record and their proxies and other
persons in attendance at the invitation of the chairman and making rules
governing speeches and debates. The chairman of the meeting acts in his or
her absolute discretion and his or her rulings are not subject to appeal.
Section 3.11. List of Stockholders. At least 10 days before every
meeting of Stockholders, the Secretary shall prepare a list of the
Stockholders entitled to vote at the meeting or any adjournment thereof,
arranged in alphabetical order, showing the address of each Stockholder and
the number of shares registered in the name of each Stockholder. The
Corporation shall make the list available for examination by any Stockholder,
for any purpose germane to the meeting, either at a place within the city
where the meeting will take place or at the place designated in the notice of
the meeting.
The Secretary shall produce and keep the list at the meeting during the
entire duration of the meeting, and any Stockholder who is present may
inspect the list at the meeting. The list shall
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constitute presumptive proof of the identity of the Stockholders entitled to
vote at the meeting and the number of shares each Stockholder holds.
A determination of Stockholders entitled to vote at any meeting of
Stockholders pursuant to this Section shall apply to any adjournment thereof.
Section 3.12. Closing of Transfer Books or Fixing of Record Date. In
order that the Corporation may determine the stockholders entitled (i) to
notice of or to vote at any meeting of stockholders or any adjournments
thereof, (ii) to receive payment of any dividend or other distribution, or
allotment of any rights, or (iii) 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, in advance, may fix a date as the
record date for any such determination, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which record date shall not be more than sixty (60)
days nor less than ten (10) days before the date of such meeting, nor more
than sixty (60) days prior to the date of any other action. A determination
of the stockholders of record entitled to notice of or to vote at a meeting
of the stockholders shall apply to any adjournment of the meeting taken
pursuant to Section 2.06 hereof; provided, however, that the Board of
Directors, in its discretion, may fix a new record date for an adjourned
meeting. Only stockholders determined to be stockholders of record on the
record date so fixed shall be entitled to notice of, or to vote at, such
meeting and any adjournment thereof, or to receive payment of such dividend
or other distribution, or allotment of rights, or to exercise such rights in
respect of such change, conversion or exchange of stock, or to participate in
any such other lawful action, 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.
Section 3.13. Voting of Shares. Unless otherwise provided in a
resolution or resolutions providing for any class or series of Preferred
Stock pursuant to the Amended and Restated Certificate of Incorporation or by
the Delaware General Corporation Law, each Stockholder shall have one vote
for every share of voting stock registered in his name on the record date for
the meeting. The Corporation shall not have the right to vote treasury stock
of the Corporation, nor shall another corporation have the right to vote its
stock of the Corporation if the Corporation holds, directly or indirectly, a
majority of the shares entitled to vote in the election of directors of such
other corporation. Persons holding stock of the Corporation in a fiduciary
capacity shall have the right to vote such stock. Persons who have pledged
their stock of the Corporation shall have the right to vote such stock unless
in the transfer on the books of the Corporation the pledger expressly
empowered the pledgee to vote such stock. In that event, only the pledges, or
his proxy, may represent such stock and vote thereon.
A plurality of the votes cast shall determine all elections and, except
when the law requires otherwise, a majority of the votes cast shall determine
all other matters.
The Stockholders may vote by voice vote on all matters. However, upon
demand by a
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Stockholder entitled to vote, or his proxy, the Stockholders shall vote by
ballot. In that event, each ballot shall state the name of the Stockholder or
proxy voting, the number of shares voted and such other information as the
Corporation may require under the procedure established for the meeting.
Section 3.14. Inspectors. At any meeting in which the Stockholders vote
by ballot, the chairman may appoint a Inspector or Inspectors. Each Inspector
shall subscribe an oath to execute the duties of a Inspector at such meeting
faithfully, with strict impartiality and according to the best of his
ability. The Inspector or Inspectors shall decide the qualification of the
voters and shall report the number of shares represented at the meeting and
entitled to vote on any question, shall conduct and accept the votes, and,
when the Stockholders have completed voting, ascertain and report the number
of shares voted respectively for and against the question. The Inspector
shall prepare a subscribed, written report and shall deliver the report to
the Secretary of the Corporation. A Inspector need not be a Stockholder of
the Corporation, and any officer of the Corporation may be a Inspector on any
question other than a vote for or against a proposal in which he has a
material interest.
Section 3.15. Proxies. A Stockholder may exercise any voting rights in
person or by his proxy appointed by an instrument in writing, which he or his
authorized attorney-in-fact has subscribed and which the proxy has delivered
to the secretary of the meeting.
A proxy is not valid after the expiration of 11 months from the date of
its execution, unless the person executing it specifies thereon the length of
time for which it is to continue in force, or limits its use to a particular
meeting. No proxy shall be valid after 10 years from the date of its
execution.
The attendance at any meeting of a Stockholder who previously has given
a proxy shall not have the effect of revoking the same unless he notifies the
Secretary in writing prior to the voting of the proxy.
Section 3.16. Consent of Stockholders in Lieu of Meeting. The
Stockholders may take any action which they could take at any annual or
special meeting without a meeting, prior notice and a vote only if all the
holders of outstanding stock sign a unanimous consent in writing, setting
forth the action taken.
ARTICLE IV
BOARD OF DIRECTORS
Section 4.01. General Powers. The Board shall manage the property,
business and affairs of the Corporation.
Section 4.02. Number. The number of directors who shall constitute the
Board shall equal not less than three nor more than 15, as the Board may
determine by resolution from time to time.
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Section 4.03. Nomination of Directors.
a. Eligibility. Only persons who are selected and recommended by
the Board of Directors or the committee of the Board of Directors designated
to make nominations, or who are nominated by stockholders in accordance with
the procedures set forth in this Section 4.03, shall be eligible for
election, or qualified to serve, as directors. Nominations of individuals for
election to the Board of Directors of the Corporation at any annual meeting
or any special meeting of stockholders at which directors are to be elected
may be made by any stockholder of the Corporation entitled to vote for the
election of directors at that meeting by compliance with the procedures set
forth in this Section 4.03. Nominations by stockholders shall be made by
written notice (a "Nomination Notice"), which shall set forth the following
information: (1) as to each individual nominated, (i) the name, date of
birth, business address and residence address of such individual, (ii) the
business experience during the past five years of such nominee, including his
or her principal occupations and employment during such period, the name and
principal business of any corporation or other organization in which such
occupations and employment were carried on, and such other information as to
the nature of his or her responsibilities and level of professional
competence as may be sufficient to permit assessment of his or her prior
business experience, (iii) whether the nominee is or has ever been at any
time a director, officer or owner of 5% or more of any class of capital
stock, partnership interests or other equity interest of any corporation,
partnership or other entity, (iv) any directorships held by such nominee in
any company with a class of securities registered pursuant to Section 12 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
subject to the requirements of Section 15(d) of the Exchange Act or any
company registered as an investment company under the Investment Company Act
of 1940, as amended; and (v) whether, in the last five years, such nominee
has been convicted in a criminal proceeding or has been subject to a
judgment, order, finding or decree of any federal, state or other
governmental entity, concerning any violation of federal, state or other law,
or any proceeding in bankruptcy, which conviction, order, finding, decree or
proceeding may be material to an evaluation of the ability or integrity of
the nominee; and (2) as to the Person submitting the Nomination Notice and
any Person acting in concert with such Person, (i) the name and business
address of such Person, (ii) the name and address of such Person as they
appear on the Corporation's books (if they so appear) and (iii) the class and
number of shares of the Corporation that are beneficially owned by such
Person. A written consent to being named in a proxy statement as a nominee,
and to serve as a director if elected, signed by the nominee, shall be filed
with any Nomination Notice. If the presiding officer at any stockholders'
meeting determines that a nomination was not made in accordance with the
procedures prescribed by these Bylaws, he shall so declare to the meeting and
the defective nomination shall be disregarded.
b. Stockholder Nomination Notice. Nomination Notices shall be
delivered to the Secretary at the principal executive office of the
Corporation not later than 120 days in advance of the anniversary date of the
Corporation's proxy statement for the previous year's annual meeting or, in
the case of special meetings, at the close of business on the seventh day
following the date on which notice of such meeting is first given to
stockholders.
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Section 4.04. Election of Directors and Term of Office. The Stockholders
of the Corporation shall elect the directors at the annual or adjourned
annual meeting (except as otherwise provided herein for the filling of
vacancies). Each director shall be elected for a full term of office
expiring at the first, second or third succeeding annual meeting after their
election and will serve until successors are duly elected and qualified. The
Nominating Committee will be empowered to define appropriate terms of office
for each nominee.
Section 4.05. Resignations. Any director of the Corporation may resign
at any time by giving written notice to the Board or to the Secretary of the
Corporation. Any resignation shall take effect upon receipt or at the time
specified in the notice. Unless the notice specifies otherwise, the
effectiveness of the resignation shall not depend upon its acceptance.
Section 4.06. Removal. Except as may be provided in a resolution or
resolutions providing for any class or series of Preferred Stock with respect
to any directors elected by the holders of such class or series, any
director, or the entire Board of Directors, may be removed from office at any
time, but only for cause and only by the affirmative vote of the holders of
at least 66-2/3% of the voting power of all of the shares of capital stock of
the Corporation then entitled to vote generally in the election of directors,
voting together as a single class.
Section 4.07. Vacancies. Any vacancies in the Board of Directors for any
reason and any newly created directorships resulting by reason of any
increase in the number of directors may be filled only by the Board of
Directors, acting by a majority of the remaining directors then in office,
although less than a quorum, or by a sole remaining director, and any
directors so appointed shall hold office until the next election of the class
for which such directors have been chosen and until their successors are
elected and qualified.
Section 4.08. Chairman of the Board. At the annual meeting of the Board,
the directors may elect from their number a Chairman of the Board of
Directors. The Chairman shall preside at all meetings of the Board, shall
determine any deadlocks in voting, and shall perform such other duties as the
Board may direct. The Board also may elect a Vice Chairman and other officers
of the Board, with such powers and duties as the Board may designate from
time to time.
Section 4.09. Compensation. The Board may compensate directors for their
services and may provide for the payment of all expenses the directors incur
by attending meetings of the Board.
Section 4.10. Corporate Opportunities. The officers and directors of the
Corporation shall be subject to the doctrine of corporate opportunities only
insofar as it applies to business opportunities in which this Corporation has
expressed an interest as determined by the Board of Directors as evidenced by
resolutions appearing in the Corporation's minutes. When such areas of
interest are delineated, all such business opportunities within such areas of
interest which come to the attention of an officer or director of the
Corporation shall be promptly disclosed to the Corporation and made available
to it. The Board of Directors may reject any opportunity presented to it and
thereafter any officer or director may avail himself or herself of such
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opportunity. Until such time as the Corporation, through its Board of
Directors, has designated as area of interest, the officers and directors of
the Corporation shall be free to engage in such area of interest on their own
and the doctrine of corporate opportunities shall not limit the rights of any
officer or director of this Corporation to continue a business existing prior
to the time that such area of interest is designated by the Corporation. This
provision shall not be construed to release any employee of the Corporation
(other than an officer or director) from the duties which he may have to the
Corporation.
ARTICLE V
MEETINGS OF DIRECTORS
Section 5.01. Regular Meetings. The Board may hold regular meetings at
such places, dates and times as the Board shall establish by resolution. If
any day fixed for a meeting falls on a legal holiday, the Board shall hold
the meeting at the same place and time on the next succeeding business day.
The Board need not give notice of regular meetings.
Section 5.02. Place of Meetings. The Board may hold any of its meetings
in or out of the state of Virginia, at such places as the Board may
designate, at such places as the notice or waiver of notice of any such
meeting may designate, or at such places as the persons calling the meeting
may designate.
Section 5.03. Meetings by Telecommunications. The Board or any committee
of the Board may hold meetings by means of conference telephone or similar
telecommunications equipment that enable all persons participating in the
meeting to hear each other. Such participation shall constitute presence in
person at such meeting.
Section 5.04. Special Meetings. The Chairman of the Board, the
President, or a majority of the directors then in office may call a special
meeting of the Board. The person or persons authorized to call special
meetings of the Board may fix any place, either in or out of the State of
Virginia as the place for the meeting.
Section 5.05. Notice of Special Meetings. The person or persons calling
a special meeting of the Board shall give written notice to each director of
the time, place and date of the meeting of not less than three days if by
mail and not less than 24 hours if by telegraph or in person. A director may
waive notice of any special meeting, and any meeting shall constitute a legal
meeting without notice if all the directors are present or if those not
present sign either before or after the meeting a written waiver of notice, a
consent to such meeting or an approval of the minutes of the meeting. A
notice or waiver of notice need not specify the purposes of the meeting or
the business which the Board will transact at the meeting.
Section 5.06. Waiver by Presence. Except when expressly for the purpose
of objecting to the legality of a meeting, a director's presence at a meeting
shall constitute a waiver of notice of such meeting.
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Section 5.07. Quorum. One-third of the directors then in office shall
constitute a quorum for all purposes at any meeting of the Board. In the
absence of a quorum, a majority of directors present at any meeting may
adjourn the meeting to another place, date, or time, without further notice.
Section 5.08. Conduct of Business. The Board shall transact business in
such order and manner as the Board may determine. Except as the law requires
otherwise, the Board shall determine all matters by the vote of a majority of
the directors present. The directors shall act as a Board, and the individual
directors shall have no power as such.
Section 5.09. Action by Consent. The Board or a committee of the Board
may take any required or permitted action without a meeting if all members of
the Board or committee sign a written consent and file the consent with the
minutes of the proceedings of the Board.
Section 5.10. Presumption of Assent. A director of the Corporation who
is present at a meeting of the Board of Directors when a vote on any matter
is taken is deemed to have assented to the action taken unless he or she
votes against or abstains from the action taken or unless, at the beginning
of the meeting or promptly upon arrival, the director objects to the holding
of the meeting or transacting specified business at the meeting. Any such
dissenting votes, abstentions or objections shall be entered in the minutes
of the meeting.
ARTICLE VI
COMMITTEES
Section 6.01. Committees of the Board. The Board may designate by a vote
of a majority of the directors then in office committees of the Board. The
committees shall serve at the pleasure of the Board and shall possess such
lawfully delegable powers and duties as the Board may confer.
Section 6.02. Selection of Committee Members. The Board shall elect by a
vote of a majority of the directors then in office a director or directors to
serve as the member or members of a committee. By the same vote, the Board
may designate other directors as alternative members who may replace any
absent or disqualified member at any meeting of a committee. In the absence
or disqualification of any member of any committee and any alternate member
in his place, the member or members of the committee present at the meeting
and not disqualified from voting, whether or not he or they constitute a
quorum, may appoint by unanimous vote another member of the Board to act at
the meeting in the place of the absent or disqualified member.
Section 6.03. Conduct of Business. Each committee may determine the
procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as the law
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or these Bylaws require otherwise. Each committee shall make adequate
provision for notice of all meetings to members. One-third of the members
shall constitute a quorum, unless the committee consists of one or two
members. In that event, one member shall constitute a quorum. A majority vote
of the members present shall determine all matters. A committee may take
action without a meeting if all the members of the committee consent in
writing and file the consent or consents with the minutes of the proceedings
of the committee.
Section 6.04. Authority. Any committee, to the extent the Board
provides, shall have and may exercise all the powers and authority of the
Board in the management of the business and affairs of the Corporation, and
may authorize the affixation of the Corporation's seal to all instruments
which may require or permit it. However, no committee shall have any power or
authority in regard to amending the Articles 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, recommending to the Stockholders a dissolution of the Corporation
or a revocation of a dissolution, or amending these Bylaws of the
Corporation. Unless a resolution of the Board expressly provides, no
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 6.05. Minutes. Each committee shall keep regular minutes of its
proceedings and report the same to the Board when required.
ARTICLE VII
OFFICERS
Section 7.01. Officers of the Corporation. The officers of the
Corporation shall consist of a President, a Secretary, a Treasurer and such
Vice-Presidents, Assistant Secretaries, Assistant Treasurers, and other
officers as the Board may elect from time to time. The same person may hold
at the same time any two offices, except the offices of President and
Secretary, President and Assistant Secretary, Vice President and Secretary,
or Vice President and Assistant Secretary.
Section 7.02. Election and Term. The Board shall elect the officers of
the Corporation. Each officer shall hold office until his death, resignation,
retirement, removal or disqualification, or until his successor shall have
been elected and qualified.
Section 7.03. Compensation of Officers. The Board shall fix the
compensation of all officers of the Corporation. No officer shall serve the
Corporation in any other capacity and receive compensation therefor, unless
the Board authorizes such additional compensation.
Section 7.04. Removal of Officers and Agents. The Board may remove any
officer or agent it has elected or appointed whenever the Board judges that
such removal will serve the best interest of the Corporation. However, such
removal shall not prejudice the contractual rights of the person removed, if
any.
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Section 7.05. Registration of Officers and Agents. Any officer or agent
the Board has elected or appointed may resign at any time by giving written
notice to the Board, the Chairman of the Board, the President or the
Secretary of the Corporation. Any such resignation shall take effect at the
date of the receipt of such notice or at any later time specified. Unless
otherwise specified in the notice, the Board need not accept the resignation
to make it effective.
Section 7.06. Bond. The Board may require by resolution any officer,
agent, or employee of the Corporation to give bond to the Corporation, with
sufficient sureties conditioned on the faithful performance of the duties of
his respective office or agency. The Board also may require by resolution any
officer, agent or employee to comply with such other conditions as the Board
may require from time to time.
Section 7.07. President. The President shall be the principal executive
officer of the Corporation and, subject to the Board's control, shall
supervise and control all of the business and affairs of the Corporation.
When present, he shall sign, with the Secretary, an Assistant Secretary, or
any other officer or agent of the Corporation which the Board has authorized,
deeds, mortgages, bonds, contracts or other instruments which the Board has
authorized an officer or agent of the Corporation to execute. However, the
President shall not sign any instrument which the law, these Bylaws or the
Board expressly require some other officer or agent of the Corporation to
sign and execute. In general, the President shall perform all duties incident
to the office of President and such other duties as the Board may prescribe
from time to time.
Section 7.08. Vice Presidents. In the absence of the President or in the
event of his death, inability or refusal to act, the Vice Presidents in the
order of their length of service as Vice Presidents, unless the Board
determines otherwise, shall perform the duties of the President. When acting
as the President, a Vice President shall have all the powers and restrictions
of the Presidency. Any Vice President may sign, with the Secretary, an
Assistant Secretary, or any other officer or agent of the Corporation which
the Board has authorized, certificates for shares of the Corporation. A Vice
President shall perform such other duties as the President or the Board may
assign to him from time to time.
Section 7.09. Secretary. The Secretary shall: (a) keep the minutes of
the meetings of the Stockholders and of the Board in one or more books
for-that purpose; (b) give all notices which these Bylaws or the law
requires; (c) serve as custodian of the records and seal of the Corporation;
(d) affix the seal of the Corporation to all documents which the Board has
authorized execution on behalf of the Corporation under seal; (e) maintain a
register of the address of each Stockholder of the Corporation; (f) sign,
with the President, a Vice President, or any other officer or agent of the
Corporation which the Board has authorized, certificates for shares of the
Corporation; (g) have charge of the stock transfer books of the Corporation;
and (h) perform all duties which the President or the Board may assign to him
from time to time.
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Section 7.10. Assistant Secretaries. In the absence of the Secretary or
in the event of his death, inability or refusal to act, the Assistant
Secretaries in the order of their length of service as Assistant Secretary,
unless the Board determines otherwise, shall perform the duties of the
Secretary. When acting as the Secretary, an Assistant Secretary shall have
the powers and restrictions of the Secretary. Any Assistant Secretary may
sign, with the President, a Vice President, or any other officer or agent of
the Corporation which the Board has authorized, certificates for shares of
the Corporation. An Assistant Secretary shall perform such other duties as
the President, Secretary or Board may assign from time to time.
Section 7.11. Treasurer. The Treasurer shall: (a) have responsibility
for all funds and securities of the Corporation; (b) receive and give
receipts for moneys due and payable to the Corporation from any source
whatsoever; (c) deposit all moneys in the name of the Corporation in
depositories which the Board selects; and (d) perform all of the duties which
the President or the Board may assign to him from time to time.
The Treasurer shall prepare, or have prepared, a true statement of the
Corporation's financial condition as of the close of each fiscal year. The
Treasurer shall file the statement at the Corporation's principal place of
business within four months after the end of the fiscal year. The Treasurer
shall keep the statement available for inspection at that place for a period
of at least ten years. The statement shall contain, when applicable, a
statement of the then current conversion rate of any outstanding securities.
The statement also shall include, when applicable, a statement of the number
of shares subject to options and the exercise price of the options.
Section 7.12. Assistant Treasurers. In the absence of the Treasurer or
in the event of his death, inability or refusal to act, the Assistant
Treasurers in the order of their length of service as Assistant Treasurer,
unless the Board determines otherwise, shall perform the duties of the
Treasurer. When acting as the Treasurer, an Assistant Treasurer shall have
the powers and restrictions of the Treasurer. An Assistant Treasurer shall
perform such other duties as the Treasurer, the President or the Board may
assign to him from time to time.
Section 7.13. Delegation of Authority. Notwithstanding any provision of
these Bylaws to the contrary, the Board may delegate the powers or duties of
any officer to any other officer or agent.
Section 7.14. Action with Respect to Securities of Other Corporations.
Unless the Board directs otherwise, the President shall have the power to
vote and otherwise act on behalf of the Corporation, in person or by proxy,
at any meeting of Stockholders of or with respect to any action of
Stockholders of any other corporation in which the Corporation holds
securities. Furthermore, unless the Board directs otherwise, the President
shall exercise any and all rights and powers which the Corporation possesses
by reason of its ownership of securities in another corporation.
Section 7.15. Vacancies. The Board may fill any vacancy in any office
because of death, resignation, removal, disqualification or any other cause
in the manner which these Bylaws prescribe for the regular appointment to
such office.
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ARTICLE VIII
CONTRACTS, LOANS, DRAFTS
DEPOSITS AND ACCOUNTS
Section 8.01. Contracts. The Board may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver
any instrument in the name and on behalf of the Corporation. The Board may
make such authorization general or special.
Section 8.02. Loans. Unless the Board has authorized such action, no
officer or agent of the Corporation shall contract for a loan on behalf of
the Corporation or issue any evidence of indebtedness in the Corporation's
name.
Section 8.03. Drafts. Such persons as the Board shall determine shall
issue all checks, drafts and other orders for the payment of money, notes and
other evidences of indebtedness issued in the name of or payable by the
Corporation.
Section 8.04. Deposits. The Treasurer shall deposit all funds of the
Corporation not otherwise employed in such banks, trust companies or other
depositories as the Board may select or as any officer, assistant, agent or
attorney of the Corporation to whom the Board has delegated such power may
select. For the purpose of deposit and collection for the account of the
Corporation, the President or the Treasurer (or any other officer, assistant,
agent or attorney of the Corporation whom the Board has authorized) may
endorse, assign and deliver checks, drafts and other orders for the payment
of money payable to the order of the Corporation.
Section 8.05. General and Special Bank Accounts. The Board may authorize
the opening and keeping of general and special bank accounts with such banks,
trust companies or other depositories as the Board may select or as any
officer, assistant, agent or attorney of the Corporation to whom the Board
has delegated such power may select. The Board may make such special rules
and regulations with respect to such bank accounts, not inconsistent with the
provisions of these Bylaws, as it may deem expedient.
ARTICLE IX
CERTIFICATES FOR SHARES AND THEIR
TRANSFER
Section 9.01. Certificates for Shares. Every owner of stock of the
Corporation shall have the right to receive a certificate or certificates,
certifying to the number and class of shares of the stock of the Corporation
which he owns. The Board shall determine the form of the certificates for the
shares of stock of the Corporation. The secretary, transfer agent, or
registrar of the Corporation shall number the certificates representing
shares of the stock of the Corporation in the order in which the Corporation
issues them. The President or any Vice
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President and the Secretary or any Assistant Secretary shall sign the
certificates in the name of the Corporation. Any or all certificates may
contain facsimile signatures. In case any officer, transfer agent or
registrar who has signed a certificate, or whose facsimile signature appears
on a certificate, ceases to serve as such officer, transfer agent or
registrar before the Corporation issues the Certificate, the Corporation may
issue the certificate with the same effect as though the person who signed
such certificate, or whose facsimile signature appears on the certificate,
was such officer, transfer agent or registrar at the date of issue. The
Secretary, transfer agent, or registrar of the Corporation shall keep a
record in the stock transfer books of the Corporation of the names of the
persons, firms or corporations owning the stock represented by the
certificates, the number and class of shares represented by the certificates
and the dates thereof and, in the case of cancellation, the dates of
cancellation. The Secretary, transfer agent, or registrar of the Corporation
shall cancel every certificate surrendered to the Corporation for exchange or
transfer. Except in the case of a lost, destroyed or mutilated certificate,
the Secretary, transfer agent, or registrar of the Corporation shall not
issue a new certificate in exchange for an existing certificate until he has
canceled the existing certificate.
Section 9.02. Transfer of Shares. The holder of record of shares of the
Corporation's stock, or his attorney-in-fact authorized by power of attorney
duly executed and filed with the Secretary, transfer agent or registrar of
the Corporation, may transfer his shares only on the stock transfer books of
the Corporation. Such person shall furnish to the Secretary, transfer agent,
or registrar of the Corporation proper evidence of his authority to make the
transfer and shall properly endorse and surrender for cancellation his
existing certificate or certificates for such shares. Whenever the holder of
record of shares of the Corporation's stock makes a transfer of shares for
collateral security, the Secretary, transfer agent, or registrar of the
Corporation shall state such fact in the entry of transfer if the transferor
and the transferee request.
Section 9.03. Lost, Stolen, Destroyed and Mutilated Certificates. The
Board may direct the Secretary, transfer agent, or registrar of the
Corporation to issue a new certificate to any holder of record of shares for
the Corporation's stock claiming that he has lost such certificate, or that
someone has stolen, destroyed or mutilated such certificate, upon the receipt
of an affidavit from such holder to such fact. When authorizing the issue of
a new certificate, the Board, in its discretion, may require as a condition
precedent to the issuance that the owner of such certificate give the
Corporation a bond of indemnity in such form and amount as the Board may
direct.
Section 9.04. Regulations. The Board may make such rules and
regulations, not inconsistent with these Bylaws, as it deems expedient
concerning the issue, transfer and registration of certificates for shares of
the stock of the Corporation. The Board may appoint, or authorize any officer
or officers to appoint one or more transfer agents, or one or more registrars,
and may require all certificates for stock to bear the signature or
signatures of any of them.
Section 9.05. Holder of Record. The Corporation may treat as absolute
owners of shares the person in whose name the shares stand of record as if
that person had full competency,
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capacity and authority to exercise all rights of ownership, despite any
knowledge or notice to the contrary or any description indicating a
representative, pledge or other fiduciary relation, or any reference to any
other instrument or to the rights of any other person appearing upon its
record or upon the share certificate. However, the Corporation shall treat
any person furnishing proof of his appointment as a fiduciary as if he were
the holder of record of the shares.
Section 9.06. Treasury Shares. Treasury shares of the Corporation shall
consist of shares which the Corporation has issued and thereafter acquired
but not canceled. Treasury shares shall not carry voting or dividend rights.
ARTICLE X
INDEMNIFICATION
Section 10.01. Action 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 of other enterprise or as a member of any committee or
similar body, 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
create, of itself, 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, that he had reasonable cause to believe that his conduct was
unlawful.
Section 10.02. 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, or as a member of any committee or
similar body, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of the Corporation,
except that the Corporation shall make no indemnification in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for
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negligence or misconduct in the performance of his duty to the Corporation
unless and only to the extent that 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
shall deem proper.
Section 10.03. Determination of Right of Indemnification. The
Corporation shall not indemnify any person under Section 10.01 or Section
10.02, in the absence of a court order, unless authorized in the specific
case upon a determination that the director, officer, employee or agent has
met the applicable standard of conduct set forth in Section 10.01 or Section
10.02. One of the following shall make the determination: (a)the Board, by a
majority vote of a quorum of directors not a party to the action, suit or
proceeding; (b)absent a quorum or at the direction of a quorum of
disinterested directors, independent legal counsel, by a written opinion; or
(c)the Stockholders.
Section 10.04 Indemnification Against Expenses of Successful Party.
Notwithstanding the other provisions of this Article, to the extent that a
director, officer, employee or agent of the Corporation has been successful
on the merits or otherwise in defense of any action, suit or proceeding
referred to in Section 10.01 or Section 10.02 of these Bylaws, or in defense
of any claim, issue or matter therein, the Corporation shall indemnify him
against expenses (including attorneys' fees) which he actually and reasonably
has incurred in connection therewith.
Section 10.05. Advance of Expenses. The Corporation may pay expenses
incurred in defending a civil or criminal action, suit or proceeding in
advance of the final disposition of such action, suit or proceeding upon
specific authorization by the Board and upon receipt of an undertaking by or
on behalf of the director, officer, employee or agent to repay such amount if
the Corporation ultimately determines that the Corporation should not
indemnify him pursuant to the provisions of this Article.
Section 10.06. Other Rights and Remedies. The indemnification provided
by this Article shall not be deemed exclusive and is declared expressly to be
nonexclusive of any other rights to which those seeking indemnification may
be entitled under any Bylaws, agreement, note of Stockholders or
disinterested directors or otherwise, both as to actions in his official
capacity and as to actions in another capacity while holding such office, and
shall continue as to any 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 10.07. Insurance. Upon resolution passed by the Board, 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 or as a member of any committee or similar body, against
any liability asserted against him and incurred by him in any such capacity,
or arising out of his status as such,
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whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article.
Section 10.08. Constituent Corporations. For the purposes of this
Article, references to "the Corporation" 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, joint
venture, trust or other enterprise or as a member of any committee or similar
body, shall stand in the same position under the provisions of the Article
with respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its existence had continued.
Section 10.09 Other Insurance. The Corporation shall reduce the amount
of the indemnification of any person pursuant to the provisions of this
Article by the amount which such person collects as indemnification (a)under
any policy of insurance which the Corporation purchased and maintained on his
behalf or (b)from another corporation, partnership, joint venture, trust or
other enterprise.
Section 10.10. Public Policy. Nothing contained in this Article, or
elsewhere in these Bylaws, shall operate to indemnify any director or officer
if such indemnification is contrary to law, either as a matter of public
policy, or under the provisions of the Federal Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, or any other
applicable state or Federal law.
ARTICLE XI
NOTICES
Section 11.01. General. Whenever these Bylaws require notice to any
Stockholder, director, officer or agent, such notice does not mean personal
notice. A person may give effective notice under these Bylaws in every case
by depositing a writing in post office or letter box in a postpaid, sealed
wrapper, or by dispatching a prepaid telegram addressed to such Stockholder,
director, officer or agent at his address on the books of the Corporation.
Unless these Bylaws expressly provide to the contrary, the time when the
person sends notice shall constitute the time of the giving of notice.
Section 11.02. Waiver of Notice. Whenever the law or these Bylaws
require notice, the person entitled to said notice may waive such notice in
writing, either before or after the time stated therein.
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ARTICLE XII
MISCELLANEOUS
Section 12.01. Facsimile Signatures. In addition to the use of facsimile
signatures which these Bylaws specifically authorize, the Corporation may use
such facsimile signatures of any officer or officers, agents or agent, of the
Corporation as the Board or a committee of the Board may authorize.
Section 12.02. Corporate Seal. The Board may provide for a suitable seal
containing the name of the Corporation, of which the Secretary shall be in
charge. The Treasurer, any Assistant Secretary, or any Assistant Treasurer
may keep and use the seal or duplicates of the seal if and when the Board or
a committee of the Board so directs.
Section 12.03. Fiscal Year. The Board shall have the authority to fix
and change the fiscal year of the Corporation.
ARTICLE XIII
AMENDMENTS
The Board of Directors shall have the power by the affirmative vote of
the majority of the members of the Board of Directors then in office to
adopt, amend, alter, change and repeal any bylaws of the Corporation;
provided, however, the Board may not adopt or alter any provision of these
Bylaws fixing the number, qualifications, classifications or term of office
of the directors adopted by the stockholders. In addition to any requirements
of the Delaware General Corporation law (and notwithstanding the fact that a
lesser percentage may be specified by the Delaware General Corporation Law),
the affirmative vote of the holders of at least 66-2/3% of the voting power
of all of the shares of capital stock of the Corporation then entitled to
vote generally in the election of directors, voting together as single class,
shall be required for the stockholders of the Corporation to adopt, amend,
alter, change or repeal any bylaws of the Corporation. No bylaws hereafter
adopted shall invalidate any prior act of the directors that would have been
valid if such new bylaws had not been adopted.
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