SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 22, 1999
SHOREWOOD PACKAGING CORPORATION
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(Exact name of registrant as specified in charter)
Delaware 0-15007 11-2742734
(State or other (Commission (IRS Employer
jurisdiction of File No.) Identification No.)
incorporation)
277 Park Avenue, New York, New York 10172
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 371-1500
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Not Applicable
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(Former name or former address, if changed since last report)
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Item 5. Other Events
On November 16, 1999 and November 18, 1999, the Board of Directors of
the Corporation met to consider, among other things, the desireability of
amending the Corporation's by-laws to strengthen the Corporation's ability to
defend the Corporation against abusive takeover tactics and unsolicited
acquisition proposals not in the best interests of the stockholders. The
meetings were held as a consequence of an unsolicited proposal that the
Corporation be acquired at a price that the Board of Directors considered to be
grossly inadequate and provided no reason for the Board to consider a sale of
the Corporation. Thereafter, by unanimous written consent as of November 22,
1999, the Board amended and restated the by-laws of the Corporation and replaced
them with the Amended and Restated By-laws attached hereto as Exhibit 3.2 A.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
3.2 A By-laws as Amended and Restated as of November 22, 1999.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange
Act of 1934, the Company has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
SHOREWOOD PACKAGING CORPORATION
By: /s/ Howard Liebman
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Howard Liebman
President and Chief Financial Officer
Date: December 2, 1999
AMENDED AND RESTATED BY-LAWS
of
SHOREWOOD PACKAGING CORPORATION
ARTICLE I
Offices
The Corporation shall have offices at such places within or without the
State of Delaware as the Board of Directors may from time to time determine or
the business of the Corporation may require.
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings: The annual meeting of stockholders shall be
held each year on such date and at such time and place, within or without the
State of Delaware, as the Board of Directors shall determine. At the annual
meeting of stockholders, directors shall be elected and there shall be
transacted such other business as may properly come before the meeting.
Section 2. Special Meetings: Special meetings of stockholders may be called
by the Board of Directors. At each such meeting of stockholders there shall be
transacted only such business as is (i) specified in the written notice of
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meeting, or (ii) brought before the meeting at the direction of the Board of
Directors.
Section 3. Notice of Meetings: (A) Unless waived, notice of the date, time
and place and, in the case of special meetings, the purpose(s), of every meeting
of stockholders shall be given by the Corporation (the "Corporation's Notice")
by personal delivery or mailed at least ten days (but not more than sixty days)
previous thereto, except as may otherwise be required by federal or state
securities laws in connection with the solicitation of proxies, to each
stockholder of record entitled to such notice. If mailed, such notice shall be
directed to the address of such stockholder which appears on the books of the
Corporation or to such other address as any stockholder shall have furnished in
writing to the Secretary of the Corporation for such purpose.
(B) Nominations of persons for election to the Board and the proposal of
business to be transacted by the stockholders may be made at an annual meeting
of stockholders (i) pursuant to the Corporation's notice with respect to such
meeting, (ii) by or at the direction of the Board of (iii) by any stockholder of
record of the Corporation who was a stockholder of record at the time of the
giving of the notice provided for in the following paragraph, who is entitled to
vote at the meeting and who has complied with the notice procedures set forth in
this section 3.
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(C) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (iii) of the foregoing
paragraph 3(b), the stockholder must have given timely notice thereof in writing
to the Secretary of the Corporation, such business must be a proper matter for
stockholder action under the General Corporation Law of the State of Delaware,
if the stockholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has provided the Corporation with a Solicitation Notice, as
that term is defined in subclause (c)(iii) of this paragraph, such stockholder
or beneficial owner must, in the case of a proposal, have delivered a proxy
statement and form of proxy to holders of at least the percentage of the
Corporation's voting shares required under applicable law to carry any such
proposal, or, in the case of a nomination or nominations, have delivered a proxy
statement and form of proxy to holders of a percentage of the Corporation's
voting shares reasonably believed by such stockholder or beneficial holder to be
sufficient to elect the nominee or nominees proposed to be nominated by such
stockholder, and must, in either case, have included in such materials the
Solicitation Notice and (4) if no Solicitation Notice relating thereto has been
timely provided pursuant to this section, the stockholder or beneficial owner
proposing such business or nomination must not have solicited a number of
proxies sufficient to have required the delivery of such a Solicitation Notice
under this section. To be timely, a stockholder's notice shall be delivered to
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the Secretary at the principal executive offices of the Corporation not less
than 45 or more than 75 days prior to the first anniversary (the "Anniversary")
of the date on which the Corporation first mailed its proxy materials for the
preceding year's annual meeting, notice by the stockholder to be timely must be
so delivered not later than the close of business on the later of (i) the 90th
day prior to such annual meeting or (ii) the 10th day following the day on which
public announcement of the date of such meeting is first made. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person as would be required to be disclosed in solicitations of
proxies for the election of such nominees as directors pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended (the Exchange Act"),
and such person's written consent to serve as a director if elected; (b) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of such business, the reasons for conducting such business at
the meeting and any material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal is made; (c) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, (ii) the class and number of shares of the Corporation that are owned
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beneficially and of record by such stockholder and such beneficial owner, and
(iii) whether either such stockholder or beneficial owner intends to deliver a
proxy statement and form of proxy to holders of, in the case of a proposal, at
least the percentage of the Corporation's voting shares required under
applicable law to carry the proposal or, in the case of a nomination or
nominations, a sufficient number of holders of the Corporation's voting shares
to elect such nominee or nominees (an affirmative statement of such intent, a
"Solicitation Notice").
(D) Notwithstanding anything in the second sentence of the paragraph (C) of
this Section 3 to the contrary, in the event that the number of directors to be
elected to the Board is increased and there is no public announcement naming all
of the nominees for director or specifying the size of the increased Board made
by the Corporation at lease 55 days prior to the Anniversary, a stockholder's
notice required by this Bylaw shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made the by the Corporation.
(E) Only persons nominated in accordance with the procedures set forth in
this Section 3 shall be eligible to serve as directors and only such business
shall be conducted at an annual meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
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section. The chair of the meeting shall have the power and the duty to determine
whether a nomination or any business proposed to be brought before the meeting
has been made in accordance with the procedures set forth in these Bylaws and,
if any proposed nomination or business is not in compliance with these Bylaws,
to declare that such defective proposed business or nomination shall not be
presented for stockholder action at the meeting and shall be disregarded.
(F) Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election to the
Board may be made at a special meeting of stockholders at which directors are to
be elected pursuant to the Corporation's notice of meeting (a) by or at the
direction of the Board or (b) by any stockholder of record of the Corporation
who is a stockholder of record at the time of giving of notice provided for in
this paragraph, who shall be entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 3. Nominations by
stockholders of persons for election to the Board may be made at such a special
meeting of stockholders if the stockholder's notice required by paragraph (C) of
this Section 3 shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the later of
the 90th day prior to such special meeting or the 10th day following the day on
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which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board to be elected at such meeting.
(G) For purposes of this section, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or a comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
(H) Notwithstanding the foregoing provisions of this Section 3, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to matters set forth
in this Section 3. Nothing in this Section 3 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 4. Quorum: Except as otherwise expressly provided by law, the
holders of a majority of the stock of the Corporation entitled to vote at any
meeting of stockholders must be present in person or by proxy at such meeting to
constitute a quorum. The holders of a majority of the voting stock represented
at a meeting, whether or not a quorum is present, shall have the power to
adjourn any meeting from time to time without notice.
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Section 5. Voting: If a quorum is present, and except as otherwise
expressly provided by law, in these By-laws or in the Certificate of
Incorporation of the Corporation, at any meeting of stockholders the vote of a
majority of the shares of stock represented at the meeting and entitled to vote
shall be the act of the stockholders. Each stockholder entitled to vote any
shares on any matter to be voted upon at such meeting shall have such votes per
share as is set forth in the Certificate of Incorporation of the Corporation,
and may exercise such voting rights either in person or by proxy.
ARTICLE III
Directors
Section 1. Number: The affairs, business and property of the Corporation
shall be managed by or under the direction of a Board of Directors to consist of
not less than three nor more than twelve directors, as shall be determined by
resolution of the Board of Directors from time to time. The Board of Directors
shall be divided into three classes. Directors elected to serve in Class I shall
be elected to serve an initial one-year term commencing in August 1986 and
ending at the annual meeting of stockholders to be held in 1987; Class II
directors shall be elected to serve an initial two-year term commencing in
August 1986 and ending at the annual meeting of stockholders to be held in 1988;
and Class III directors shall be elected to serve an initial three year term
commencing in August 1988 and ending at the annual meeting of stockholders to be
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held in 1989. Thereafter, all members of the three classes of the Board of
Directors shall be elected to serve for three year terms. A director need not be
a stockholder of the Corporation.
Section 2. How Elected: Except as otherwise provided by law, the
Certificate of Incorporation or Section 4 of this Article, the directors of the
Corporation, other than the first Board of Directors designated in the
Certificate of Incorporation or elected by the incorporator, shall be elected by
the stockholders. Except as otherwise required by law or by the Certificate of
Incorporation, directors shall be elected by a majority of the votes cast at a
meeting of the stockholders (at which a quorum is present) by stockholders
entitled to vote. Each director shall be elected to serve until the next annual
meeting of stockholders at which directors of this class are to be elected and
until his successor shall have been duly elected and qualified, except in the
event of his earlier death, resignation, or removal or the earlier termination
of his term of office.
Section 3. Removal: Except as provided in the Certificate of Incorporation,
any or all of the directors may be removed in accordance with Delaware General
Corporation Law Section 141(k)(1).
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Section 4. Vacancies: Vacancies in the Board of Directors occurring between
annual meetings by death, resignation, or removal for cause may be filled by the
affirmative vote of a majority of directors then remaining in office, although
less than a quorum. Subject to the rights of the holders of any class or series
of stock having preference over the Common Stock as to dividends or upon
dissolution or winding up of the Corporation to elect directors under specified
circumstances, vacancies which result from the creation of new directorships or
failure of the stockholders to elect the whole board at any election of
directors may be filled by the affirmative vote of a majority of the directors
then remaining in office, although less than a quorum. Any director elected to
fill a vacancy on the Board will serve for the balance of the term of the
replaced director.
Section 5. Meetings: Regular meetings of the Board of Directors may be held
at such time and place, within or without the State of Delaware, as may be
determined by resolution of the Board of Directors. Special meetings of the
Board of Directors may be called from time to time by or at the direction of the
Chairman of the Board or the President. Special meetings of the Board shall be
held on such date, at such time and place as may be specified by the officer
calling or directing the calling of the meeting. Except as otherwise provided by
law, any business may be transacted at any meeting of the Board of Directors.
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Section 6. Notice of Meetings: Notice of the date, time and place of each
meeting of the Board of Directors shall be given to each director at least
forty-eight hours prior to such meeting, unless the notice is given orally or
delivered in person, in which case it shall be given at least twenty-four hours
prior to such meeting. For the purpose of this Section, notice will be deemed to
be duly given to a director if given to him orally (including by telephone) or
if such notice is delivered to such director in person or is mailed,
telegraphed, cabled, telexed, photocopied or otherwise delivered by facsimile
transmission to his last known address. Notice of a meeting shall be deemed to
have been waived by any director who shall attend and participate in such
meeting.
Section 7. Quorum: At any meeting of the Board of Directors, one-half of
the entire authorized Board shall constitute a quorum (except as provided in
Section 4 of this Article III), but less than a quorum may adjourn a meeting.
Except as otherwise provided by law or in these by-laws, any action taken by a
majority of the directors present at a meeting of the Board of Directors at
which a quorum is present shall be the action of the Board of Directors.
Section 8. Conference Telephone: Members of the Board of Directors or any
committee of the Board of Directors may participate in a meeting of the Board or
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committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and such participation shall constitute presence in person at such meeting.
Section 9. Compensation of Directors and Members of Committees: The Board
may from time to time, in its discretion, fix the amounts which shall be payable
to members of the Board of Directors and to members of any committee thereof for
services rendered to the Corporation. In addition, the Board may authorize
payment by the Corporation to directors for expenses incurred in connection with
attendance at the meetings of the Board or a committee thereof.
Section 10. Reliance Upon Financial Statements: In discharging their
duties, directors and officers, when acting in good faith, may rely upon the
books of account and other records of the Corporation, and financial statements
of the Corporation represented to them to be correct by the President or the
officer of the Corporation having charge of its books of accounts, or stated in
a written report by an independent public or certified public accountant or firm
of such accountants fairly to reflect the financial condition of the
Corporation.
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ARTICLE IV
Committees
The Board of Directors may, by resolution or resolutions passed by a
majority of the entire Board, designate from among its members an Executive
Committee, Audit Committee and Compensation and Stock Option Committee, the
powers of which are described below, and such additional committees as the Board
may from time to time deem appropriate. Each shall consist of two or more of the
directors of the Corporation. Each additional committee, to the extent provided
in said resolution or resolutions, shall have and may exercise, to the extent
permitted by law, the powers of the Board of Directors in the management of the
business, property and affairs of the Corporation, and may authorize the seal of
the Corporation to be affixed to all papers which may require it, provided that
no such committee shall have any power or authority to declare dividends or to
authorize the issuance of stock. Members of such additional committees, the
Executive Committee, the Audit Committee and the Compensation and Stock Option
Committee shall hold office for such period as may be prescribed by the Board of
Directors, subject, however, to removal at any time by the Board of Directors in
its sole and absolute discretion. Vacancies in membership of all such Committees
shall be filled only by the Board of Directors. Subject to such rules of
procedure as may be established by the Board of Directors for committees,
committees may adopt their own rules of procedure and may meet at a stated time
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or on such notice as they may determine. Each committee shall keep a record of
its proceedings and report the same to the Board of Directors upon the request
of the Board of Directors. All actions by committees shall be subject to
control, revision and alternation by the Board of Directors, provided the rights
of third persons are not impaired thereby.
The Executive Committee shall be composed of such number of directors as
the Board of Directors shall, from time to time determine. The Executive
Committee shall, between meetings of the Board of Directors, take all actions
with respect to the management of the Corporation's business that require action
by the Board of Directors, except with respect to certain specified matters that
by law must be approved by the entire Board of Directors. The Executive
Committee shall also coordinate and implement financial and other policies and
review the status of all operational activities.
The Audit Committee shall be composed of such number of directors, each of
whom is not an officer or employee of the Corporation or its subsidiaries, as
the Board of Directors shall, from time to time, determine. The Audit Committee
shall recommend the Corporation's outside auditors, review the scope and results
of audits, and examine procedures for ensuring compliance with the Corporation's
policies on conflicts of interest. The Compensation and Stock Option Committee
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shall be composed of such number of directors, each of whom is not an officer or
employee of the Corporation or its subsidiaries and each of whom is not eligible
to participate in any of the plans or programs which the Compensation and Stock
Option Committee administers. The Compensation and Stock Option Committee shall
approve the salaries of all executive officers, make bonus awards to officers
and other senior executives, grant stock options to eligible employees under the
Corporation's stock option and/or other employee compensation or employee
benefit plans, establish guidelines for administration of the Corporation's
incentive bonus arrangements for key employees, and, generally, approve or make
recommendations to the Board of Directors on any proposed plan or program which
would primarily benefit the more highly paid executive group.
ARTICLE V
Officers
Section 1. Principal Officers: The Board of Directors may elect a Chairman
of the Board, a Vice Chairman of the Board, a President, one or more Vice
Presidents, a Secretary, a Treasurer, Assistant Secretaries, Assistant
Treasurers, and such other officers as it may from time to time deem necessary.
Any two or more offices may be held by the same person. Each officer shall hold
office until the first meeting of the Board of Directors following the next
annual election of directors and until his or her successor shall have been duly
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elected and qualified, except in the event of an earlier termination of his or
her term of office through death, resignation, removal or otherwise. Any vacancy
in an office may be filled for the unexpired portion of the term of such office
by the Board of Directors. The Board of Directors may authorize any officer to
appoint and remove subordinate officers, to prescribe their authority and
duties, and to fix their compensation.
Section 2. Removal: Any officer may be removed by the Board at any time
with or without cause by resolution adopted by the Board of Directors at any
regular meeting of the Board or at any Special Meeting of the Board called for
that purpose at which a quorum is present.
Section 3. Compensation: The salaries of officers and any other
compensation paid to them shall be fixed from time to time by the Board of
Directors.
Section 4. Chairman of the Board: The Chairman of the Board, if any, shall
be the chief executive officer of the Corporation and a member of the Board of
Directors, and shall preside at all meetings of stockholders and directors at
which he or she is present. Subject to the control and the direction of the
Board of Directors, the Chairman of the Board may enter into any contract and
execute and deliver any instrument in the name and on behalf of the Corporation.
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The Chairman of the Board shall perform such other duties and have such other
powers as the Board of Directors shall prescribe.
Section 5. President: The President shall be responsible for the general
management of the affairs of the Corporation, shall have the powers and duties
usually incident to the office of President, except as specifically limited by
resolution of the Board of Directors, and shall have such other powers and
perform such other duties as may be assigned to him by the Board of Directors.
Subject to the control and direction of the Board of Directors, the President
may enter into any contract and execute and deliver any instrument in the name
and on behalf of the Corporation. In the absence of the Chairman or Vice
Chairman, or if the office of Chairman or Vice Chairman is vacant, the President
shall preside at all meetings of stockholders at which he or she is present.
Section 6. Vice Presidents: At the request of the President, or in the
absence or inability to act of the president, or if the office of President is
vacant, the Vice President designated by the President or by the Board of
Directors shall perform all the duties and may exercise all the powers of the
President, subject to the right of the Board of Directors to extend or confine
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such powers and duties or to assign them to others. Vice Presidents shall have
such other powers and shall perform such other duties as may be assigned to them
by the Board of Directors or the President.
Section 7. Treasurer: The Treasurer shall have charge and custody of, and
be responsible for, all funds and securities of the Corporation and shall
deposit all such funds in the name of the Corporation in such banks or other
depositories as shall be selected by the Board of Directors. He or she shall
exhibit at all reasonable times the books of account and records to any of the
directors of the Corporation upon application during business hours at the
office of the Corporation where such books and records shall be kept; when
requested by the Board of Directors, he or she shall render a statement of the
condition of the finances of the Corporation at any meeting of the Board or at
the annual meeting of stockholders; he or she shall receive, and give receipt
for, moneys due and payable to the Corporation from any source whatsoever; and
in general, he or she shall perform all the duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to him or
her by the Board of Directors, the Chairman of the Board or the President. The
Treasurer shall give such bond, if any, for the faithful discharge of his or her
duties as the Board of Directors may require.
Section 8. Secretary: The Secretary, if present, shall act as secretary at
all meetings of the Board of Directors and of the stockholders and keep the
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minutes thereof in a book or books to be provided for that purpose; he or she
shall see that all notices required to be given by the Corporation are duly
given and served; he or she shall have charge of the stock records of the
Corporation; he or she shall see that all reports, statements and other
documents required by law are properly kept and filed; and in general he or she
shall perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him or her by the Board of
Directors, the Chairman of the Board or the President.
Section 9. Assistant Secretaries and Assistant Treasurers: An Assistant
Secretary acting as such shall perform, in the absence of the Secretary, all the
functions of the Secretary and shall exercise such other powers and perform such
other duties as may be assigned to him or her by the Board of Directors or the
President. An Assistant Treasurer acting as such shall perform, in the absence
of the Treasurer, all the functions of the Treasurer and shall exercises such
other powers and perform such other duties as may be assigned to him or her by
the Board of Directors or the President.
Section 10. Other Officers: Officers other than those listed and described
in Sections 3 through 9 of this Article V shall exercise such powers and perform
such duties as may be assigned to them by the Board of Directors or the
President.
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Section 11. Delegation of Duties of Officers: The Board of Directors may
delegate the duties and powers of any officer, agent or employee of the
Corporation to any other officer, agent or employee or director for a specified
time during the absence of any such person or for any other reason that the
Board of Directors may deem sufficient.
Section 12. Bond: The Board of Directors shall have power, to the extent
permitted by law, to require any officer, agent or employee of the Corporation
to give bond for the faithful discharge of his duties in such form and with such
surety or sureties as the Board of Directors may deem advisable.
ARTICLE VI
Certificates for Share of Capital Stock
Section 1. Certificates for Stock: The interest of each stockholder in the
Corporation shall be evidenced by a certificate or certificates for shares of
stock of the Corporation certifying the number of shares owned by him, in such
form as the Board of Directors may from time to time prescribe. The certificates
for shares of stock of the Corporation shall be signed by the Chairman of the
Board, the President or any Vice President and by the Secretary or the Treasurer
or any Assistant Secretary or an Assistant Treasurer, and shall be countersigned
and registered in such manner, if any, as the Board of Directors may by
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resolution prescribe; provided, however, that in case such certificates are
signed by a transfer agent other than the Corporation or its employee or by a
registrar other than the Corporation or its employee the signatures of the
Chairman of the Board, President, Vice President, Treasurer, Assistant
Treasurer, Secretary or Assistant Secretary may be facsimile; and further
provided that 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 or signatures shall have been used
thereon had not ceased to be such officers or officers of the Corporation.
Section 2. Stock Ledger: A record shall be kept by the Secretary, transfer
agent or by any other officer, employee or agent designated by the Board of
Directors of the name of each person, firm or corporation holding capital stock
of the Corporation, the number of shares represented by, and the respective
dates of, each certificate for such capital stock, and in case of cancellation
of any such certificate, the respective dates of cancellation.
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Section 3. Cancellation: Every certificate surrendered to the Corporation
for exchange or registration of transfer shall be canceled, and no new
certificate or certificates shall be issued in exchange for any existing
certificate until such existing certificate shall have been so canceled, except
as provided in Section 5 of this Article VI and in cases provided for by
applicable law.
Section 4. Transfer: Transfers of shares of the Corporation's stock shall
be made upon the books of the Corporation only by the holder in person or by his
attorney lawfully constituted in writing and only upon surrender of the
certificate or certificates representing such shares properly assigned and with
such proof of authenticity of signatures as the Corporation may reasonably
require. The Board of Directors shall have power and authority to make such
rules and regulations as it deems expedient, not inconsistent with the
Certificate of Incorporation or these by-laws, concerning the issuance,
registration and transfer of certificates representing shares of the
Corporation's stock, and may appoint transfer agents and registrars thereof.
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Section 5. Lost, Stolen, Destroyed or Mutilated Certificates: Any person
claiming that a stock certificate has been lost, destroyed or stolen shall make
an affidavit or affirmation of that fact setting forth the circumstances in
connection with such loss, destruction or theft, and shall furnish to the
Corporation, and to the transfer agent and registrars of the stock of the
Corporation, if any, such indemnity or other assurances as shall be satisfactory
to them and each of them, whereupon, upon authorization given to the appropriate
officers or agents of the Corporation or the transfer agent for such stock by
the President of the Corporation, or by any of such other officers of the
Corporation as the Board of Directors may designate to give such authorization,
a new certificate may be issued of the same tenor and for the same number of
shares as the one alleged to be lost, destroyed, mutilated or stolen.
Section 6. Record Date: (A) The Board of Directors may fix a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of any meting of stockholders, nor more than sixty (60) days prior to the
time for any other action hereinafter described, as of which there shall be
determined the stockholders who are entitled: to notice of or to vote at any
meeting of stockholders or any adjournment thereof; to express consent to
corporate action in writing without a meeting consistent with and as provided in
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subsection (B) below; to receive payment of any dividend or other distribution
or allotment of any rights; or to exercise any rights with respect to any
change, conversion or exchange of stock or with respect to any other lawful
action. (B) In order that the corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, 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 date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the stockholders authorize
or take corporate action by written consent shall, by written notice to the
Secretary of the corporation, request the Board of Directors to fix a record
date. The Board of Directors shall promptly, but in all events within ten (10)
days after the date on which such a request is received by the Secretary, adopt
a resolution fixing by the Board of Directors within ten (10) days of the date
on which such a request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation by delivery to its registered office in the State of Delaware, its
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principal place of business, or any officer or agent of the corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the Board of
Directors adopts the resolution taking such prior action.
Section 7. Holders of Record: The Corporation and its transfer agent (if
any) 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 claims to or interest in such shares on the
part of any other person, whether or not they shall have express or other notice
thereof, except as otherwise provided by law.
ARTICLE VII
Indemnification
The Corporation shall indemnify any director or officer of the Corporation
or a subsidiary, or any person serving at the request of the Corporation or a
subsidiary as a director, officer or member of another corporation, partnership,
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joint venture, trust, committee or other enterprise or any person who is or was
an employee or agent of the Corporation or a subsidiary, as deemed advisable by
the Board of Directors, to the full extent permitted by Delaware law or any
other applicable law.
The indemnification and advancement of expenses permitted by law 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.
ARTICLE VIII
Miscellaneous Provisions
Section 1. Corporate Seal: The seal of the Corporation shall be circular in
form, with the name of the Corporation in the circumference and the words
"Corporate Seal - Delaware" with its year of incorporation in the center. Any
officer, director or attorney-in-fact of the Corporation may affix the seal of
the Corporation to any document.
Section 2. Fiscal Year: The fiscal year of the Corporation shall be as
specified by resolution of the Board of Directors.
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Section 3. Waiver of Notice: Whenever any notice is required to be given
under the provisions of these by-laws, the Certificate of Incorporation or any
of the laws of the State of Delaware, a waiver thereof, in writing, signed by
the person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
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ARTICLE IX
Consents
Section 1. Stockholders: (A) Unless otherwise provided in the Certificate
of Incorporation or by law, any action required to be taken or which may be
taken at any annual or special meeting of stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares of stock
entitled to vote thereon were present and voted. The record date shall be fixed
in accordance with Article VI, Section 6 of these by-laws. (b) Consents to
corporate action shall be valid for a maximum of sixty (60) days after the date
of the earliest dated consent delivered to the corporation in the manner
provided in Section 228(c) of the Delaware General Corporation Law. Consents may
be revoked by written notice (i) to the corporation, (ii) to the stockholder or
stockholders soliciting consents or soliciting revocations in opposition to
action by consent (the "Soliciting Stockholders"), or (iii) to a proxy solicitor
or other agent designated by the corporation or the Soliciting Stockholders.
Section 2. Directors: Unless otherwise restricted by the Certificate of
Incorporation or by law, any action required or permitted to be taken at any
meeting of the Board of Directors, or of any committee thereof, may be taken
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without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee thereof.
ARTICLE X
Amendments
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation from time to time may make, amend
alter or repeal the by-laws of the Corporation. In addition, the by-laws may be
amended, added to, altered or repealed, or new by-laws may be adopted, at any
meeting of stockholders of the Corporation at which a quorum is present by the
affirmative vote of the holders of not less than two thirds (2/3) of the stock
issued and outstanding as of the record date for stockholders entitled to vote
at such meeting.
