<PAGE>
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
July 21, 1999
-----------------------------------------------
Date of report (Date of earliest event reported)
ADVO, Inc.
---------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
Delaware 1-11720 06-0885252
- ---------------------------------- ------------------------ --------------------
(State or other jurisdiction (Commission file number) (IRS Employer
of incorporation or organization) Identification No.)
</TABLE>
One Univac Lane, P.O. Box 755, Windsor, Connecticut 06095-0755
--------------------------------------------------------------
(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (860) 285-6120
--------------------
<PAGE>
ITEM 5. OTHER EVENTS
------------
On July 21, 1999, the Board of Directors of ADVO, Inc. (the "Company") adopted
amendments to the Company's Restated By-laws. The amendments bring the Restated
By- laws into conformity with relevant statutory changes as well as common
practice for companies.
A complete copy of the Restated By-laws is filed as exhibit 3(b).
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
---------------------------------
The following exhibits are filed herewith:
<TABLE>
<CAPTION>
Exhibit
- -------
No. Description
- --- -----------
<S> <C>
3(b) Restated By-laws of ADVO. Filed herewith.
</TABLE>
-2-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1934, the Registrant
has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
ADVO, Inc.
Date: September 10, 1999
------------------
By /s/ DAVID M. STIGLER
------------------------------
David M. Stigler
Senior Vice President,
Legal and Public Affairs,
General Counsel and Secretary
-3-
<PAGE>
EXHIBIT INDEX
-------------
Incorporation by
Exhibit No. Description Reference
- ----------- ----------- ---------
3 (b) Restated By-laws of ADVO. Filed herewith.
<PAGE>
Exhibit 3(b)
RESTATED BY-LAWS
OF
ADVO, INC.
(hereinafter called the "Corporation")
as adopted July 21, 1999
ARTICLE I
Offices
-------
SECTION 1. Registered Office. The registered office of the Corporation
-----------------
shall be in the City of Dover, County of Kent, State of Delaware.
SECTION 2. Principal Office. The principal office of the Corporation
----------------
shall be in the City of Windsor, County of Hartford, State of Connecticut. The
Corporation may also have offices at such other places both within and without
the States of Delaware and Connecticut, as the Board of Directors may from time
to time determine or the business of the Corporation may require.
ARTICLE II
Meeting of Stockholders
-----------------------
SECTION 1. Place of Meetings. Meetings of the stockholders for the
-----------------
election of directors shall be held at the principal office of the Corporation
or at such other place either within or without the States of Delaware or
Connecticut, as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the States of
Delaware or Connecticut, as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
SECTION 2. Annual Meeting. The annual meeting of stockholders shall be
--------------
held at such date and time as shall be designated from time to time by the Board
of Directors and stated in the notice of the meeting, at which meetings the
stockholders shall elect a Board of Directors, and transact such other business
as may properly be brought before the meeting. Written notice of the Annual
Meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. Any previously scheduled annual meeting of
stockholders may be adjourned or, upon public notice given prior to the date
previously scheduled for such meeting, postponed by the Chairman of the Board of
Directors (the "Chairman") for any reason.
--------
SECTION 3. Special Meetings. Special meetings of stockholders, for any
----------------
purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation of the Corporation (the certificate of
incorporation of the Corporation, as the same may be amended or restated, the
"Certificate of Incorporation") shall be called by the Chairman, Chief Executive
Officer,
<PAGE>
Chief Operating Officer and President, Secretary or by resolution of the Board
of Directors. Written notice of a Special Meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than 10 nor more than 60 days before the date of the
meeting to each stockholder entitled to vote at such meeting. Any previously
scheduled special meeting of the stockholders may be adjourned or, upon public
notice given prior to the date previously scheduled for such meeting, postponed
or canceled by the Chairman for any reason.
SECTION 4. Quorum. Unless otherwise provided by applicable law or the
------
Certificate of Incorporation, one-third of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at a meeting of
stockholders; except that, where a separate vote by a class or classes is
------
required, a quorum shall consist of one-third of the shares entitled to vote of
each such class. If however such quorum shall not be present or represented at
any meeting of the stockholders, the Chairman shall have the power to adjourn
the meeting from time to time without notice, other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified.
SECTION 5. Voting. Unless otherwise required by law or the Certificate
------
of Incorporation, any question brought before any meeting of stockholders shall
be decided by the vote of the holders of a majority of the voting power
represented and entitled to vote thereat except that in the election of
directors, a plurality of the votes cast shall elect. Such votes may be cast in
person or by proxy but no proxy shall be voted on after three years from its
date, unless such proxy provides for a longer period. Voting by ballot shall
not be required for corporate action except as otherwise required by law.
SECTION 6. Consent of Stockholders in Lieu of Meeting. Unless otherwise
------------------------------------------
provided in the Certificate of Incorporation, any action required or permitted
to be taken at any annual or special meeting of stockholders of the Corporation,
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 entitled to vote thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing
and who, if the action had been taken at a meeting, would have been entitled to
notice of the meeting if the record date for such meeting had been the date that
written consents signed by a sufficient number of holders or members to take the
action were delivered to the Corporation in accordance with applicable law and
these By-Laws.
SECTION 7. Procedures Relating to Action by Written Consent. (a) 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 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,
request the Board of Directors to fix a record date. The Board of Directors
shall promptly, but in all events within 10 days after the date on which such a
request is received, adopt a resolution fixing the record
<PAGE>
date. If no record date has been fixed by the Board of Directors within 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 Delaware, its principal
place of business or to 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.
(b) In the event of the delivery, in the manner provided by Article II,
Section 7(a), to the Corporation of the requisite written consent or consents to
take corporate action and/or any related revocation or revocations, the
Corporation shall engage nationally recognized independent inspectors of
elections for the purpose of promptly performing a ministerial review of the
validity of the consents and revocations. For the purpose of permitting the
inspectors to perform such review, no action by written consent without a
meeting shall be effective until such date as the independent inspectors certify
to the Corporation that the consents delivered to the Corporation in accordance
with Article II, Section 7(a) represent at least the minimum number of votes
that would be necessary to take the corporate action. Nothing contained in this
paragraph shall in any way be construed to suggest or imply that the Board of
Directors or any stockholder shall not be entitled to contest the validity of
any consent or revocation thereof, whether before or after such certification by
the independent inspectors, or to take any other action (including, without
limitation, the commencement, prosecution or defense of any litigation with
respect thereto, and the seeking of injunctive relief in such litigation).
(c) Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within 60 days of the
earliest dated written consent received in accordance with Article II, Section
7(a), a written consent or consents signed by a sufficient number of holders to
take such action are delivered to the Corporation in the manner prescribed by
Article II, Section 7(a).
SECTION 8. Notice of Stockholder Business and Nominations.
----------------------------------------------
(a) Annual Meetings of Stockholders. Nominations of persons for election
to the Board of Directors of the Corporation and the proposal of business to be
considered by the stockholders may be made at an annual meeting of stockholders
(i) pursuant to the Corporation's notice of meeting, (ii) by or at the direction
of the Board of Directors or (iii) by any stockholder of the Corporation who was
a stockholder of record at the time of giving of notice provided for in this By-
Law, who is entitled to vote at the meeting and who complies with the notice
procedures set forth in this By-Law.
For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to this By-Law, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation and
such other business must otherwise be a proper matter for stockholder action.
To be timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 90th day nor earlier than the close of business on the 120th day
prior to the first anniversary of the preceding year's annual meeting;
<PAGE>
provided, however, that in the event that the date of the annual meeting is more
- --------
than 30 days before or more than 60 days after such anniversary date, notice by
the stockholder to be timely must be so delivered not earlier than the close of
business on the 120th day prior to such annual meeting and not later than the
close of business on the later of the 90th day prior to such annual meeting and
the 10th day following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment or postponement of an annual meeting commence a
new time period for the giving of a stockholder's notice as described above.
Such stockholder's notice shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); (ii) as to any other
business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, 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; and (iii) as to the stockholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination or proposal is
made (A) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (B) the class and number
of shares of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
Notwithstanding any provision of these By-Laws to the contrary, in the
event that the number of directors to be elected to the Board of Directors of
the Corporation is increased and there is no public announcement by the
Corporation naming all of the nominees for director or specifying the size of
the increased Board of Directors at least 90 days prior to the first anniversary
of the preceding year's annual meeting, 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 by the Corporation.
(b) Special Meetings of Stockholders. 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 of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (i) by or at the direction of the Board of
Directors or (ii) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this By-Law, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this By-Law. In the event
the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by this By-Law shall be delivered to the Secretary
at the principal executive offices of the Corporation not earlier than the close
of business on the 120th day prior to such special meeting and not later than
the close of business on the later of the 90th day prior to such special meeting
and 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 of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new time period
for the giving of a stockholder's notice as described above.
<PAGE>
(c) General. Only such persons who are nominated in accordance with the
procedures set forth in this By-Law shall be eligible to serve as directors and
only such business shall be conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this By-Law. Except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, the Chairman shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this By-Law and, if any proposed nomination or business
is not in compliance with this By-Law, to declare that such defective proposal
or nomination shall be disregarded.
For purposes of this By-Law, "public announcement" shall mean disclosure in
a press release reported by the Dow Jones News Service, Associated Press or
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.
Notwithstanding the foregoing provisions of this By-Law, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
By-Law. Nothing in this By-Law shall be deemed to affect any rights (i) of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any series of Preferred Stock to elect directors under specified
circumstances.
ARTICLE III
Directors
---------
SECTION 1. Number and Election of Directors. The Board of Directors
--------------------------------
shall consist of not less than three or more than 15 members, the exact number
of which shall be fixed from time to time by the Board of Directors or, if the
number of members is not so fixed, the number of members of the Board of
Directors shall be seven. After his election, each director shall hold office
until the next annual meeting of stockholders and until his successor is duly
elected and qualified, or until his earlier resignation or removal. Any
director may resign at any time upon notice to the Corporation. Directors need
not be stockholders.
SECTION 2. Vacancies. Newly created directorships resulting from any
---------
increase in the authorized number of directors and other vacancies on the Board
of Directors may be filled by a majority of the directors then in office (though
less than a quorum) who were elected by the holders of the class of stock which
is entitled to elect such director (in the case of an increase in the authorized
number of directors) or which elected the director whose office has become
vacant (or which elected the predecessor of the director whose office has become
vacant, in the case of a vacancy in a directorship previously filled by
appointment as the result of a vacancy) or may be filled by a sole remaining
director elected by such holders (or a sole remaining director who was appointed
to fill a vacancy of a predecessor director elected by such holders), or, if
there be no such remaining directors, a new meeting of the holders of such class
of stock shall be held for the purpose of filling such vacancy within 60 days
after the creation of such vacancy. The directors so chosen shall hold office
until the next annual election and until their successors are duly elected and
qualified. Any director or directors (whether or not they may constitute the
entire Board of Directors) may be removed, with or without
<PAGE>
cause, and with or without notice, by the vote of the holders of a majority of
the shares of the class of stock who elected such director (or elected the
predecessor of such director, in the case of a director appointed to fill a
vacancy).
SECTION 3. Duties and Powers. The business of the Corporation shall be
-----------------
managed by or under the direction of the Board of Directors which may exercise
all such powers of the Corporation and do all such lawful acts and things as are
not by statute or by the Corporation's Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
SECTION 4. Meetings. The Board of Directors of the Corporation may hold
--------
meetings, both regular and special, either within or without the States of
Delaware and Connecticut. Regular meetings of the Board of Directors may be
held without notice at such time and such place as shall from time to time be
determined by the Board. Special meetings of the Board of Directors may be
called at the request of the Chairman or any two directors on two days' notice
to each director given in person, by mail or by telegraphic communication.
SECTION 5. Quorum. At all meetings of the Board, a majority of the
------
entire Board of Directors shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by law or by the Certificate of
Incorporation. If a quorum shall not be present at any meeting of the Board of
Directors the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
SECTION 6. Actions of the Board. 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, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by all
the Directors or members of such committee, as the case may be, and the writing
or writings are filed with the minutes of proceedings of the Board or committee.
SECTION 7. Committees. The Board of Directors shall have the exclusive
----------
power to create and appoint one or more committees, each committee to consist of
one or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of any such committee.
Any such committee shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to (i) approving or adopting, or recommending to the
stockholders, any action or matter required to be submitted to the stockholders
for approval under Delaware law, the Certificate of Incorporation or these
Bylaws or (ii) adopting, amending or repealing any of these Bylaws. Each
committee shall keep such minutes and make such reports as the Board of
Directors may require.
SECTION 8. Compensation. The directors may be paid their expenses, if
------------
any, of attendance at each meeting of the Board of Directors and may be paid a
fixed sum for attendance at each meeting of the Board of Directors or a stated
salary as director. No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
<PAGE>
SECTION 9. Meetings by Means of Conference Telephone. Members of the
-----------------------------------------
Board of Directors of the Corporation, or any committee designated by the Board,
may participate in a meeting of the Board or such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this section shall constitute presence in person at such
meeting. The provisions of Sections 4 and 5 of this Article shall be applicable
to any such meeting.
ARTICLE IV
Officers
--------
SECTION 1. General. The officers of the Corporation shall be a Chief
-------
Executive Officer, Chief Operating Officer and President, and one or more Vice
Presidents (however designated, including Senior Vice Presidents), as the Board
of Directors may determine from time to time, a Treasurer, a Secretary and one
or more Assistant Treasurers and Assistant Secretaries as the Board of Directors
may determine from time to time. The Board of Directors may also designate or
authorize the designation of such other officers as it shall deem necessary or
appropriate and shall confer on such officers such authorities and duties as the
Board of Directors may prescribe. Any such officer shall be chosen in such
manner as the Board of Directors may determine. Any number of offices may be
held by the same person, unless otherwise prohibited by law, the Certificate of
Incorporation or these By-Laws.
SECTION 2. Election. The Board of Directors shall elect or authorize
--------
the selection of the officers of the Corporation who shall hold their offices
for such terms and shall exercise such powers and perform such duties as shall
be set forth in these By-Laws and such other powers and duties may be prescribed
from time and time by the Board of Directors. All officers of the Corporation
shall hold office until their successors are chosen and qualified, or until
their earlier resignation or removal. Any officer may be removed at any time by
the affirmative vote of a majority of a quorum of the Board of Directors or by
such other action as the Board of Directors may authorize. Any vacancy
occurring in any office of the Corporation may be filled by the Board of
Directors or in such other manner as the Board of Directors may authorize. The
salaries of all officers of the Corporation shall be fixed by the Board of
Directors or pursuant to a resolution authorizing the fixing of such salaries.
SECTION 3. Chief Executive Officer. The Chief Executive Officer of the
-----------------------
Corporation shall be responsible for the general and overall management and
affairs of the Corporation. The Chief Executive Officer shall also be
responsible for acting as Chairman when the Chairman is unable or unwilling to
fulfill the function of Chairman under these By-Laws, unless the Board of
Directors designates another person to fulfill this function. When so acting,
the Chief Executive Officer shall have all of the powers of, and be subject to
all of the restrictions upon, the Chairman. The Chief Executive Officer shall
perform such other duties and have such other powers as the Board of Directors
shall from time to time prescribe.
SECTION 4. Chief Operating Officer and President. The Chief Operating
-------------------------------------
Officer and President shall be the chief administrative officer of the
Corporation, and shall be responsible for the management of the Corporation. The
Chief Operating Officer and President shall perform such other duties and have
such other powers as the Board of Directors shall from time to time prescribe.
<PAGE>
SECTION 5. Vice Presidents. Each Vice President shall perform such
---------------
duties and have such powers as the Board of Directors, or, absent any such
direction from the Board of Directors, that the Chief Executive Officer and the
Chief Operating Officer and President, may from time to time prescribe.
SECTION 6. Treasurer. The Treasurer shall have the custody of the
---------
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an accounting
of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give a
bond in such sum and such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of his office and
for the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the Corporation.
SECTION 7. Assistant Treasurers. The Assistant Treasurers, if any, in
--------------------
the order of their seniority or in any other order determined by the Board,
shall in the absence or disability of the Treasurer perform the duties and
exercise the power of the Treasurer and shall perform such other duties as the
Board or the Treasurer shall prescribe.
SECTION 8. Secretary. The Secretary shall attend all meetings of the
---------
Board of Directors and all meetings of stockholders and record all the
proceedings of the meetings of the stockholders of the Corporation and of the
Board of Directors in a book to be kept for that purpose; the Secretary shall
also perform like duties for the standing committee when required. The
Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors (including any such
meetings called by stockholders entitled to call meetings), and shall perform
such other duties as may be prescribed by the Board of Directors. The Secretary
shall have custody of the seal of the Corporation, and the Secretary and all
Assistant Secretaries shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by the signature of the
Secretary or by the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of
the corporation, if any, and to attest the affixing by his signature.
SECTION 9. Assistant Secretaries. The Assistant Secretaries, if any, in
---------------------
order of their seniority or in any other order determined by the Board shall, in
the absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties as the Board or the
Secretary shall prescribe.
ARTICLE V
Certificate of Stock
--------------------
<PAGE>
SECTION 1. Form of Certificates. Every holder of stock in the
--------------------
Corporation shall be entitled to have a certificate signed by, or in the name of
the Corporation by the Chairman, the President or a Vice President, and the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary
of the Corporation, certifying the number of shares owned by him in the
Corporation.
SECTION 2. Signatures. Where a certificate is countersigned (1) by a
----------
transfer agent other than the Corporation or its employee, or (2) a registrar
other than the Corporation or its employee, any other signature on the
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
SECTION 3. Record. A record in one or more counterparts shall be kept
------
of the name of the person, firm or corporation owning the shares represented by
each certificate for stock of the Corporation issued, the number of shares
represented by each such certificate, the date thereof and, in the case of
cancellation, the date of cancellation.
SECTION 4. Lost Certificates. The Board of Directors shall direct a new
-----------------
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
SECTION 5. Transferred Stock. Upon surrender to the Corporation or the
-----------------
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
SECTION 6. Record Date. In order that the Corporation may determine the
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stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than 60 days nor less than 10 days before the date
of such meeting, nor more than 60 days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
SECTION 7. Beneficial Owners. The Corporation shall be entitled to
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recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the
<PAGE>
owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the Laws of Delaware.
ARTICLE VI
Notice and Record Dates
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SECTION 1. Notices. Whenever, under the provisions of law or of the
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Corporation's Certificate of Incorporation or of these By-Laws, notice is
required to be given to any directors or stockholder, such notice may be given
in writing, by mail, addressed to such director or stockholder, at his address
as it appears on the records of the Corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same be
deposited in the United States mail. Notice to directors may also be given by
telegram.
SECTION 2. Waivers of Notice. Whenever any notice is required to be
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given under the provisions of law or of the Certificate of Incorporation or of
these By-Laws, a waiver thereof in writing, signed, by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE VII
General Provisions
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SECTION 1. Dividends. Dividends upon the capital stock of the
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Corporation if any, may be declared by the Board of Directors at any regular or
special meeting, and may be paid in cash, in property, or in shares of the
capital stock. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
Board of Directors from time to time, in their absolute discretion, deems proper
as a reserve or reserves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other
purpose as the Board shall find consistent with the interest of the Corporation,
and the Board of Directors may modify or abolish any such reserve in the manner
in which it was created.
SECTION 2. Disbursements. All checks or demands for money and notes of
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the Corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
SECTION 3. Fiscal Year. The fiscal year of the Corporation shall be
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fixed by resolution of the Board of Directors.
SECTION 4. Corporate Seal. The corporate seal shall be in such form as
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the Board of Directors shall prescribe.
<PAGE>
ARTICLE VIII
Indemnification
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Every person (and the heirs, executors and administrators of such person)
who is or was a director, officer, employee or agent of the Corporation or of
any other company, including another corporation, partnership, joint venture,
trust or other enterprise which such person serves or served as such at the
request of the Corporation shall be indemnified by the Corporation against all
judgments, payments in settlement (whether or not approved by court), fines,
penalties and other reasonable costs and expenses (including fees and
disbursements of counsel) imposed upon or incurred by such person in connection
with or resulting from any action, suit, proceeding, investigation or claim,
civil, criminal, administrative, legislative or other (including any criminal
action, suit or proceeding in which such person enters a plea of guilty or nolo
contendere or its equivalent), or any appeal relating thereto which is brought
or threatened either by the right of the corporation or such other company or by
any other person, governmental authority or instrumentality and in which such
person is made a party or is otherwise involved by reason of his being or having
been such director, officer, employee, or agent or by reason of any action or
omission, or alleged action or omission by such person in his capacity as such
director, officer, employee or agent if either (a) such person is wholly
successful, on the merits or otherwise, in defending such action, or in the
defense of any claim, issue or matter therein, or (b) such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation or such other company, and with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation or such other company, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
Any indemnification under the foregoing paragraph, unless ordered by a
court of competent jurisdiction, shall be made by the Corporation only as
authorized in a specific case upon a determination that indemnification of the
director, officer, employee, agent or other person in a similar capacity is
appropriate in the circumstances because he has met the standard of conduct set
forth in such paragraph. Such determination shall be made as follows: (i) by
the stockholders, (ii) by the Board of Directors by a majority vote of a quorum
consisting of directors who are not parties to such action, suit or proceeding,
(iii) if such a quorum cannot be obtained, then by a majority vote of a
committee of the Board of Directors duly designated to act in the matter by a
majority vote of all members of the Board of Directors in which designated
directors who are parties may participate, such committee to consist solely of
one or more directors not parties to such proceedings at the time such committee
is constituted, or (iv) by special legal counsel selected by the Board of
Directors or selected by the committee provided in subparagraph (iii) above, or,
if the requisite quorum of the Board of Directors cannot be obtained and such
committee cannot be or is not established, selected by a majority vote of the
full Board of Directors, in which directors who are parties may participate. In
the event a determination is made under this paragraph that the person to be
indemnified has met the standard of conduct required by the foregoing paragraph
as to some matters but not as to others, indemnification amounts may be
reasonably prorated.
Expenses incurred by an officer or director in defending any action, suit
or proceeding may be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding in the specific case upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it
<PAGE>
shall ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized by this Article. Such expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
The indemnification and advancement of expenses provided by this Article
shall not be deemed exclusive of any other rights to which a person seeking
indemnification and advancement of expenses may be entitled under the
Certificate of Incorporation or any By-Law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
The intent of the foregoing indemnification provisions of this Article is
to expand the indemnification provided by Section 145 of the Delaware General
Corporation Law so as to maintain and continue to attract persons of high
quality to serve the corporation as officers, directors, employees, agents or in
similar capacities.
ARTICLE IX
Amendments
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These By-Laws may be altered, amended or repealed, in whole or in part, or
new By-Laws may be adopted by the stockholders or by the Board of Directors.
