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): February 16, 2000
Shorewood Packaging Corporation
(Exact Name of Registrant as Specified in Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
0-15007 11-2742734
(Commission File Number) (IRS Employer Identification No.)
277 Park Avenue
New York, New York 10172
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (212) 371-1500
Not Applicable
(Former name or former address, if Changed Since Last Report)
ITEM 5. OTHER EVENTS.
On February 16, 2000, the Board of Directors of Shorewood Packaging
Corporation (the "Corporation"), unanimously approved amending Article X of
the Corporation's by-laws to read in its entirety as follows:
"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addition, the by-laws may be amended, added to, altered or repealed,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 a majority of the stock issued and
outstanding as of the record date for stockholders entitled to vote at
such meeting."
The full text of the Corporation's by-laws as amended and restated is
included as Exhibit 3.2 hereto.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
(c) Exhibits.
3.2 By-laws as Amended and Restated as of February 16, 2000.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
SHOREWOOD PACKAGING CORPORATION
By: /s/ Howard M. Liebman
------------------------------------
Name: Howard M. Liebman
Title: President and Chief Financial
Officer
Date: February 17, 2000
EXHIBIT 3.2
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 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.
(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 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 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 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 By-law 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 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 By-laws and, if any proposed nomination
or business is not in compliance with these By-laws, 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 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.
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 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).
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.
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 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.
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 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 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 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. 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 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 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.
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
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.
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.
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 meeting 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 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 the record date. If no record date has been fixed 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 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.
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, 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.
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.
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 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
a majority of the stock issued and outstanding as of the record date for
stockholders entitled to vote at such meeting.
