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:
September 21, 1994
(Date of earliest event reported)
PS GROUP, INC.
(Exact name of registrant as specified in charter)
DELAWARE 1-7141 95-2760133
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
4370 La Jolla Village Drive
Suite 1050
San Diego, California 92122
(Address of principal (Zip Code)
executive offices)
Registrant's telephone number, including area code: (619) 546-5001<PAGE>
Item 5. Other Events
On September 21, 1994 the corporation Bylaws were amended to reduce the number
of directors of the corporation from seven (7) to six (6).
A copy of the corporation's Bylaws in effect following such amendment follow
as Exhibit (3)(ii).
Item 7(c). Financial Statements and Exhibits
(3)(ii) Bylaws (amended through September 21, 1994)
SIGNATURES
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.
PS GROUP, INC.
Dated: September 27, 1994 By: /s/ Dennis C. O'Dell
Name: Dennis C. O'Dell
Title: Vice President, General Counsel
and Corporate Secretary<PAGE>
Exhibit (3)(ii)
BYLAWS OF
PS GROUP, INC.
(as amended through September 21, 1994)<PAGE>
BYLAWS OF
PS GROUP, INC.
(as amended through September 21, 1994)
Table of Contents
Page
ARTICLE I Offices 1
ARTICLE II Meetings of Shareholders 1
ARTICLE III Directors 4
ARTICLE IV Officers 8
ARTICLE V Seal 10
ARTICLE VI Form of Stock Certificate 11
ARTICLE VII Representation of Shares of
Other Corporations 11
ARTICLE VIII Transfers of Stock 11
ARTICLE IX Lost, Stolen, or Destroyed
Certificates 12
ARTICLE X Record Date 12
ARTICLE XI Registered Shareholders 13
ARTICLE XII Fiscal Year 13
ARTICLE XIII Notices 13
ARTICLE XIV Amendments 14
ARTICLE XV Indemnification and Insurance 14
(i)<PAGE>
BYLAWS OF
PS GROUP, INC.
(a Delaware corporation)
(as amended through September 21, 1994)
ARTICLE I
Offices
The registered office of this Corporation shall be in the
City of Wilmington, County of New Castle, State of Delaware, and
the name of the resident agent in charge thereof is The
Corporation Trust Company.
The Corporation may also have offices at such other places,
either within or without the State of Delaware, as the Board of
Directors (the "Board") may from time to time designate or the
business of the Corporation may require.
ARTICLE II
Meetings of Shareholders
Section 1. Place of Meetings. Meetings of shareholders
shall be held at such time and place, within or without the State
of Delaware, as shall be stated in the notice of the meeting or
in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. Annual meetings of
shareholders shall be held on the fourth Tuesday of May, if not a
legal holiday, and if a legal holiday, then on the next secular
day following, at 10:00 a.m., or at such other date and time set
by the Board and stated in the notice of the meeting, at which
the shareholders shall elect a Board, and transact such other
business as may properly be brought before the meeting.
Section 3. Special Meetings. Special meetings of
shareholders, for any purpose or purposes, unless otherwise
prescribed by applicable law or by the Certificate of
Incorporation, may be called by the Chairman of the Board (or, if
the Board does not appoint a Chairman of the Board, the Chief
Executive Officer) and shall be called by the Chairman of the
Board (or, if the Board does not appoint a Chairman of the Board,
the Chief Executive Officer) or Secretary at the request in
writing of a majority of the Board, or if, and only if, the
special meeting is to be called for the purpose of removing a
director or directors for cause, at the request in writing
1<PAGE>
of shareholders owning a majority in amount of the entire capital
stock of the Corporation issued and outstanding and entitled to
vote. Such request shall state the purpose or purposes of the
proposed meeting and the business transacted at any such special
meeting of shareholders shall be limited to the purposes set
forth in the notice. Shareholders may not request the call of a
special meeting for any purpose other than as provided herein.
Section 4. Shareholder Lists. The officer who has charge
of the stock ledger of the Corporation shall prepare and make, at
least ten days before every meeting of shareholders, a complete
list of shareholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each shareholder
and the number of shares registered in the name of each
shareholder.
Such list shall be open to the examination of any
shareholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting, or at the place of the meeting, and the
list shall also be available at the meeting during the whole time
thereof, and may be inspected by any shareholder who is present.
Section 5. Notice of Meetings. Written notice of each
meeting of shareholders, whether annual or special, stating the
place, date and hour of the meeting shall be given to each
shareholder entitled to vote at such meeting not less than ten
nor more than sixty days before the date of the meeting.
Section 6. Quorum and Adjournment. The holders of a
majority of the stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall
constitute a quorum for holding all meetings of shareholders,
except as otherwise provided by applicable law or by the
Certificate of Incorporation. If it shall appear that such
quorum is not present or represented at any meeting of
shareholders, the Chairman of the meeting shall have 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 noticed.
The Chairman of the meeting may determine that a quorum is
present based upon any reasonable evidence of the presence in
person or by proxy of shareholders holding a majority of the
outstanding votes, including without limitation, evidence from
any record of shareholders who have signed a register indicating
their presence at the meeting.
Section 7. Voting. In all matters, the vote of the holders
of a majority of the capital stock having voting power present in
person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by
express provision of applicable law or of the Certificate of
Incorporation, a different vote is required in which case such
express provision shall govern and control the decision of such
question.
2<PAGE>
Section 8. Proxies. Each shareholder entitled to vote at a
meeting of shareholders may authorize in writing or by any other
means as is provided in Section 212 of the Delaware General
Corporation Law another person or persons to act for him by
proxy, but no proxy shall be voted or acted upon after eleven
months from its date, unless the person executing the proxy
specifies therein the period of time for which it is to continue
in force.
Section 9. Judges of Election. The Board may appoint a
Judge or Judges of Election for any meeting of shareholders.
Such Judges shall decide upon the qualification of the voters and
report the number of shares represented at the meeting and
entitled to vote, shall conduct the voting and accept the votes,
and when the voting is completed shall ascertain and report the
number of shares voted respectively for and against each position
upon which a vote is taken by ballot. The Judges need not be
shareholders, and any officer of the Corporation may be a Judge
on any position other than a vote for or against a proposal in
which he shall have a material interest.
Section 10. Notice of Shareholder Business. At an annual
meeting of the shareholders, only such business shall be
conducted as shall have been brought before the meeting (a) by or
at the direction of the Board of Directors or (b) by any
shareholder of the Corporation who complies with the notice
procedures set forth in this Section 10. For business to be
properly brought before an annual meeting by a shareholder, the
shareholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a shareholder's
notice must be delivered to or mailed and received at the
principal executive offices of the Corporation, not less than 30
days nor more than 60 days prior to the meeting; provided,
however, that in the event that less than 40 days' notice or
prior public disclosure of the date of the meeting is given or
made to shareholders, notice by the shareholder to be timely must
be received not later than the close of business on the 10th day
following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure was made. A
shareholder's notice to the Secretary shall set forth as to each
matter the shareholder proposes to bring before the annual
meeting (a) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting
such business at the annual meeting, (b) the name and address, as
they appear on the Corporation's books, of the shareholder
proposing such business, (c) the class and number of shares of
the Corporation which are beneficially owned by the shareholder
and (d) any material interest of the shareholder in such
business. Notwithstanding anything in the Bylaws to the
contrary, no business shall be conducted at an annual meeting
except in accordance with the procedures set forth in this
Section 10. The Chairman of an annual meeting shall, if the
facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance with
the provisions of this Section 10, and if he should so determine,
he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
Section 11. Consent Solicitation Procedure. In order
that the corporation may determine the stockholders entitled to
consent to corporate action
3<PAGE>
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, 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, 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 stockholders meetings are recorded, to the
attention of the Secretary of the corporation. Delivery 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 III
Directors
Section 1. Powers. The Board shall have the power to
manage or direct the management of the property, business and
affairs of the Corporation, and except as expressly limited by
law, to exercise all of its corporate powers. The Board may
establish procedures and rules, or may authorize the Chairman of
any meeting of shareholders to establish procedures and rules,
for the fair and orderly conduct of any shareholders meeting,
including without limitation, registration of the shareholders
attending the meeting, adoption of an agenda, establishing the
order of business at the meeting, recessing and adjourning the
meeting for the purposes of tabulating any votes and receiving
the result thereof, the timing of the opening and closing of the
polls, and the physical layout of the facilities for the meeting.
Section 2. Number. The Board shall consist of one or more
members in such number as shall be determined from time to time
by resolution of the Board. Until otherwise determined by such
resolution, the Board shall consist of six members. Directors
need not be shareholders, and each director shall serve until his
successor is elected and qualified or until his death,
retirement, resignation or removal.
4<PAGE>
Section 3. Nominations. Nominations of candidates for
election as directors of the Corporation may be made by the Board
or by any shareholder entitled to vote at a meeting at which one
or more directors are to be elected (an "Election Meeting").
Nominations made by the Board shall be made at a meeting of
the Board or by written consent of directors in lieu of a
meeting, not less than thirty days prior to the date of an
Election Meeting. At the request of the Secretary of the
Corporation, each proposed nominee shall provide the Corporation
with such information concerning himself as is required, under
the rules of the Securities and Exchange Commission, to be
included in the Corporation's proxy statement soliciting proxies
for his election as a director.
Not less than thirty days prior to the date of an Election
Meeting any shareholder who intends to make a nomination at the
Election Meeting shall deliver a notice to the Secretary of the
Corporation setting forth (i) the name, age, business address,
and residence address of each nominee proposed in such notice,
(ii) the principal occupation or employment of each such nominee,
(iii) the number of shares of capital stock of the Corporation
which are beneficially owned by each such nominee and (iv) such
other information concerning each such nominee as would be
required, under the rules of the Securities and Exchange
Commission, in a proxy statement soliciting proxies for the
election of such nominees. Such notice shall include a signed
consent to serve as a director of the Corporation, if elected, of
each such nominee.
In the event that a person is validly designated as a
nominee and shall thereafter become unable or unwilling to stand
for election to the Board, the Board or the shareholder who
proposed such nominee, as the case may be, may designate a
substitute nominee.
If the chairman of the Election Meeting determines that a
nomination was not made in accordance with the foregoing
procedures, such nomination shall be void.
Section 4. Class Division and Term. The Board shall be and
is divided into three classes, Class I, Class II, and Class III,
which shall be as nearly equal in number as possible. Each
director shall serve for a term ending on the date of the third
annual meeting following the annual meeting at which such
director was elected; and until his successor shall have been
elected and qualified; provided, however, that each initial
director in Class I shall hold office until the annual meeting of
stockholders in 1979; each initial director in Class II shall
hold office until the annual meeting of stockholders in 1980; and
each initial director in Class III shall hold office until the
annual meeting of stockholders in 1981.
In the event of any increase or decrease in the authorized
number of directors, (i) each director then serving as such shall
nevertheless continue as a director of the class of which he is a
member until the expiration of his current term, or his prior
death, retirement, resignation, or removal, and (ii) the newly
created or
5
eliminated directorships resulting from such increase or decrease
shall be apportioned by the Board among the three classes of
directors so as to maintain such classes as nearly equal as
possible.
Section 5. Vacancies and Newly Created Directorships. Any
vacancy in the Board caused by death, resignation, removal or
otherwise, or through an increase in the number of directors of a
class, shall be filled by a majority vote of the remaining
directors of the class in which such vacancy occurs, or by the
sole remaining director of that class if only one director
remains, or by the majority vote of the remaining directors of
the other two classes if there be no remaining members of the
class in which the vacancy occurs. A director so elected to fill
a vacancy shall serve for the remainder of the then present term
of the office of the class to which he was elected.
Section 6. Initial Meeting. The Board shall meet as soon
as practicable after the annual election of directors and notice
of such first meeting shall not be required.
Section 7. Regular Meetings. Regular meetings of the Board
shall be held without call or notice at such time and place as
shall from time to time be fixed by standing resolution of the
Board.
Section 8. Special Meetings. Special meetings of the Board
may be called at any time, and for any purpose permitted by law,
by the Chairman of the Board, the Chief Executive Officer or by
the Secretary on the request (whether written or oral) of any two
members of the Board, which meetings shall be held at the time
and place designated by the person or persons calling the
meeting. Notice of the time and place of any such meeting shall
be given to the Directors by the Secretary, or in case of his
absence, refusal or inability to act, by any other officer. Any
such notice may be given by mail, by private express courier
service, by telegraph, by telecopier, by telephone, by personal
service, or by any thereof as to different Directors.
Notice to a Director by mail or by private express courier
service shall be deemed to have been given if addressed to such
Director at the address shown upon the records of the corporation
for such Director (or as may have been given to the corporation
by such Director for purposes of notice) and deposited in a
United States Post Office or delivered to such private express
courier service, as the case may be, at least forty-eight hours
before the time of the meeting. Any other written notice shall
be deemed to have been given at the time it is personally
delivered to the recipient or is delivered to a common carrier
for transmission, or actually transmitted to the recipient by the
person giving the notice by electronic means. Oral notice shall
be deemed to have been given at the time it is communicated, in
person or by telephone or wireless, to the recipient or to a
person at the office or home of the recipient who may reasonably
be expected to communicate the notice to the recipient.
6<PAGE>
A notice need not specify the purpose of any special meeting
of the Board of Directors. Whenever any Director has been absent
from any meeting of the Board of Directors for which notice has
not been dispensed with, an entry in the minutes of such meeting
to the effect that notice has been duly given shall be conclusive
and incontrovertible evidence that due notice of such meeting was
given to such Director.
Section 9. Quorum. At all meetings of the Board a majority
of the whole Board shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the act
of a majority of the Directors present at any meeting at which
there is a quorum shall be the act of the Board, except as may be
otherwise specifically provided by applicable law or by the
Certificate of Incorporation or by these Bylaws. Any meeting of
the Board may be adjourned to meet again at a stated day and
hour. Even though no quorum is present, as required in this
Section, a majority of the Directors present at any meeting of
the Board, either regular or special, may adjourn from time to
time until a quorum be had, but no later than the time fixed for
the next regular meeting of the Board. Notice of any adjourned
meeting need not be given.
Section 10. Fees and Compensation. Each Director and each
member of a committee of the Board shall receive such fees and
reimbursement of expenses incurred on behalf of the Corporation
or in attending meetings as the Board may from time to time
determine.
Section 11. Meetings by Telephonic Communication. Members
of the Board or any committee thereof may participate in a
regular or special meeting of such 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, if the standing resolutions fixing the time and place of a
regular meeting or if the notice of the time and place of any
regular or special meeting provides for such participation.
Participation in a meeting pursuant to this Section shall
constitute presence in person at such meeting.
Section 12. Qualification of Directors. No person can be
elected a director of this Corporation (whether by vote of the
shareholders or the directors) if, were he or she to be elected a
director, less than a majority of the total number of directors
would be Outside Directors. If such a person is nominated for
director, no votes cast for his or her election shall be counted
and, for this purpose, the announcement of the results of any
election of directors, shall be delayed pending the determination
by the Board referred to below. An Outside Director is a person
who is not: (a) an officer or employee of the Corporation or any
relative of an officer or employee; (b) a Related Person (as that
term is defined in Article X of the Corporation's Certificate of
Incorporation) or an officer, director, employee, associate or
affiliate of a Related Person, or a relative of any of the
foregoing; or (c) a person having a direct or indirect material
business relationship with the Corporation. The Board shall be
empowered to determine in its sole and absolute discretion
whether a person is or is not an Outside Person within the
meaning of the foregoing.
7<PAGE>
Section 13. Committees. The Board may, by resolution
passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the
Directors of the Corporation. The Board may designate one or
more Directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a
committee and if the Board has not designated one or more
alternates (or if such a designation has been made, in the
absence or disqualification of such alternate(s)), the member or
members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member or
alternate. Any such committee, to the extent provided in the
resolution of the Board shall have and may exercise all the
powers and authority of the Board in the management of the
business and affairs of the Corporation, and may authorize the
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 amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation,
recommending to the shareholders the sale, lease or exchange of
all or substantially all of the Corporation's property and
assets, recommending to the shareholders a dissolution of the
Corporation or a revocation of a dissolution, or amending the
Bylaws of the Corporation; and, unless the resolution expressly
so provides, no such committee shall have the power or authority
to declare a dividend or to authorize the issuance of stock.
Section 14. Action Without Meetings. Unless otherwise
restricted by applicable law or by the Certificate of
Incorporation or by these Bylaws, any action required or
permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without meeting if all members of
the Board or of such committee consent thereto in writing as the
case may be, and the writing or writings are filed with the
minutes of proceedings of the Board or committee. Action shall
be taken by the shareholders only at annual or special meetings
of shareholders and shareholders may not act by written consent.
ARTICLE IV
Officers
Section 1. Appointment and Salaries. The Board shall
appoint the executive officers who shall include a Chief
Executive Officer, one or more Vice Presidents (one or more of
whom may be designated as Executive Vice Presidents or as Senior
Vice Presidents), a Secretary, a Controller, and a Treasurer.
The Board may also appoint a Chairman of the Board and a
President and the Board or the Chief Executive Officer may
appoint such other officers (including Assistant Vice Presidents,
Assistant Secretaries, Assistant Treasurers and Assistant
Controllers) as the Board or they may deem necessary or
desirable. The Board shall fix the salaries
8<PAGE>
of all officers appointed by it. Unless prohibited by applicable
law or by the Certificate of Incorporation or by these Bylaws,
one person may be elected or appointed to serve in more than one
official capacity.
Section 2. Removal and Resignation. Any officer may be
removed, either with or without cause, by the Board or, in the
case of an officer not appointed by the Board by the Chief
Executive Officer (or if the Board does not appoint a Chief
Executive Officer, the President). Any officer may resign at any
time by giving notice to the Board or to the Chief Executive
Officer (or if the Board does not appoint a Chief Executive
Officer, the President), or to the Secretary of the Corporation.
Any such resignation shall take effect at the date of receipt of
such notice or at any later time specified therein; and, unless
otherwise specified in such notice, the acceptance of the
resignation shall not be necessary to make it effective.
Section 3. The Chairman of the Board. The Board may, at
its election, appoint a Chairman of the Board. If such an
officer be elected, he shall, if present, preside at all meetings
of the shareholders and of the Board of Directors and shall have
such other powers and duties as may from time to time be assigned
to him by the Board of Directors.
Section 4. The Chief Executive Officer. Subject to such
powers, if any, as may be given by the Board to the Chairman of
the Board, if there is such an officer, the Chief Executive
Officer shall be the chief executive officer of the Corporation
with the powers of general manager, and he shall have supervision
over and may exercise general executive powers concerning all of
the operations and business of the Corporation, with the
authority from time to time to delegate to other officers such
executive and other powers and duties as he may deem advisable.
If there be no Chairman of the Board or if he is absent, the
Chief Executive Officer shall preside at all meetings of the
shareholders and of the Board, unless the Board appoints another
person who need not be a shareholder, officer, or director of the
Corporation, to preside at a meeting of shareholders.
Section 5. The Vice President. In the absence of the Chief
Executive Officer (or, if the Board does not appoint a Chief
Executive Officer, the President) or in the event of his
inability or refusal to act, the Vice President (or if there be
more than one Vice President, the Vice Presidents in the order of
their rank or, if of equal rank, then in the order designated by
the Board or the Chief Executive Officer (or, if the Board does
not appoint a Chief Executive Officer, the President) or, in the
absence of any designation, then in the order of their
appointment) shall perform the duties of the Chief Executive
Officer (or, if the Board does not appoint a Chief Executive
Officer, the President) and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Chief
Executive Officer (or, if the Board does not appoint a Chief
Executive Officer, the President). The rank of Vice Presidents
in descending order shall be Executive Vice President, Senior
Vice President, Vice President, and Assistant Vice President.
The Vice President shall perform such other duties and have such
other powers as the Board may from time to time prescribe.
9<PAGE>
Section 6. The Secretary. The Secretary shall attend all
meetings of the Board and all meetings of the shareholders and
record all the proceedings of the meetings of the Corporation and
of the Board in a book to be kept for that purpose and shall
perform like duties for the committees when required. He shall
give, or cause to be given, notice of all meetings of
shareholders and special meetings of the Board. He shall have
custody of the corporate seal of the Corporation and he, or an
Assistant Secretary, shall have authority to affix the same to
any instrument requiring it and when so affixed, it may be
attested by his signature or by the signature of such Assistant
Secretary. The Board may give general authority to any other
officer to affix the seal of the Corporation and to attest the
affixing by his signature. The Secretary shall perform such
other duties and have such other powers as the Board or the Chief
Executive Officer (or, if the Board does not appoint a Chief
Executive Officer, the President) may from time to time
prescribe.
Section 7. The Treasurer and the Controller. The Treasurer
and the Controller shall each have 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 monies and other valuable effects in the
name and to the credit of the Corporation in such depositories as
may be designated by the Board. Either the Treasurer or the
Controller may disburse the funds of the Corporation as may be
ordered by the Board or the Chief Executive Officer (or, if the
Board does not appoint a Chief Executive Officer, the President),
taking proper vouchers for such disbursements, and shall render
to the Board and Chief Executive Officer (or, if the Board does
not appoint a Chief Executive Officer, the President) an account
of transactions and of the financial condition of the
Corporation. The Treasurer and the Controller each shall perform
such other duties and have such other powers as the Board or the
Chief Executive Officer (or, if the Board does not appoint a
Chief Executive Officer, the President) may from time to time
prescribe.
Section 8. Assistant Officers. An Assistant Officer shall,
in the absence of the officer to whom he is an assistant or in
the event of such officer's inability or refusal to act (or, if
there be more than one such assistant officer, the assistant
officers in the order designated by the Board or the Chief
Executive Officer (or, if the Board does not appoint a Chief
Executive Officer, the President) or, in the absence of any
designation then in the order of their appointment), perform the
duties and exercise the powers of such officer. An Assistant
Officer shall perform such other duties and have such other
powers as the Board or the Chief Executive Officer (or, if the
Board does not appoint a Chief Executive Officer, the President)
may from time to time prescribe.
ARTICLE V
Seal
It shall not be necessary to the validity of any instrument
executed by any authorized officer or officers of the
Corporation, that the execution of such
10<PAGE>
instrument be evidenced by the corporate seal, and all documents,
instruments, contracts, and writings of all kinds signed on
behalf of the Corporation by any authorized officer or officers
thereof shall be as effectual and binding on the Corporation
without the corporate seal, as if the execution of the same had
been evidenced by affixing the corporate seal thereto.
ARTICLE VI
Form of Stock Certificate
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 Chief Executive Officer or a Vice President,
and by 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. Any or all of
the signatures on the certificate may be a 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 the issue.
ARTICLE VII
Representation of Shares of Other Corporations
The Chief Executive Officer or any other officer or officers
authorized by the Board or the Chief Executive Officer are each
authorized to vote, represent, and exercise on behalf of the
corporation all rights incident to any and all shares of any
other corporation or corporations standing in the name of the
corporation. The authority herein granted may be exercised
either by any such officer in person or by any other person
authorized so to do by proxy or power of attorney duly executed
by said officer.
ARTICLE VIII
Transfers of Stock
Upon surrender to the Corporation or a 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
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Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction
upon its books.
ARTICLE IX
Lost, Stolen, or Destroyed Certificates
The Board may 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 the 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 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 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.
ARTICLE X
Record Date
The Board may fix in advance a date, which shall not be more
than sixty days nor less than ten days preceding the date of any
meeting of shareholders, or the date for the payment of any
dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall
go into effect, or a date in connection with obtaining such
consent, as a record date for the determination of shareholders
entitled to notice of, and to vote at, any such meeting and any
adjournment thereof, or entitled to receive payment of any such
dividend, or to any such allotment of rights, or to exercise the
rights in respect of any such change, conversion or exchange of
capital stock, or to give such consent, and in such case such
shareholders, and only such shareholders as shall be shareholders
of record on the date so fixed shall be entitled to such notice
of, and to vote at, such meeting and any adjournment thereof, or
to receive payment of such dividend, or to receive such allotment
of rights, or to exercise such rights, or to give such consent,
as the case may be, not withstanding any transfer of any stock on
the books of the Corporation after any such record date fixed as
aforesaid.
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ARTICLE XI
Registered Shareholders
The Corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such share on the part
of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by applicable
law.
ARTICLE XII
Fiscal Year
The fiscal year of the Corporation shall be fixed by
resolution of the Board.
ARTICLE XIII
Notices
Section l. Manner of Notice. Whenever under the provisions
of the statutes or of the Certificate of Incorporation or of
these Bylaws notice is required to be given to any Director,
committee member, officer, or shareholder, it shall not be
construed to mean personal notice, but such notice may be given,
in the case of shareholders, in writing, by mail, by depositing
the same in the post office or letterbox, in a postpaid sealed
wrapper, addressed to such shareholder, at such address as
appears on the books of the Corporation, or, in default of other
address, to such shareholder at the General Post Office in the
City of Wilmington, Delaware, and, in the case of Directors,
committee members and officers, by telephone, or by mail or by
telegram to the last business address known to the Secretary of
the Corporation, and such notice shall be deemed to be given at
the time when the same shall be thus mailed or telegraphed or
telephoned.
Section 2. Waiver of Notice. Whenever any notice is
required to be given under the provisions of the statutes or of
the Certificate of Incorporation or of these Bylaws, 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.
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ARTICLE XIV
Amendments
The Board shall have the power to make, adopt, alter, amend
and repeal from time to time bylaws of this corporation, subject
to the right of the shareholders entitled to vote with respect
thereto to adopt, alter, amend, and repeal bylaws made by the
Board; provided, however, that bylaws shall not be adopted,
altered, amended, or repealed by the shareholders of the
Corporation, except by the vote of the holders of not less than
sixty-six and two-thirds percent (66-2/3%) of the outstanding
shares of Common Stock.
ARTICLE XV
Indemnification and Insurance
Section 1. Right to Indemnification. Each person who was
or is a party or is threatened to be made a party to or is
involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a
director or officer of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such
proceeding is alleged action or inaction in an official capacity
or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by the laws of
Delaware, as the same exist or may hereafter be amended, against
all costs, charges, expenses, liabilities and losses (including
attorneys' fees, judgements, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection
therewith, and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except as provided in
Section 2 hereof, the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or
part thereof) was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this
Article shall be a contract right and shall include the right to
be paid by the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires,
the payment of such expenses incurred by a director or officer in
his or her capacity as a director of officer (and not in any
other capacity in which service was or is rendered by such person
while a director or officer, including, without limitation,
service to an employee benefit plan) in advance of the final
disposition of a proceeding; shall be made only upon delivery to
the Corporation of an
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undertaking, by or on behalf of such director of officer, to
repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation
may, by action of its Board of Directors, provide indemnification
to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and
officers.
Section 2. Right of Claimant to Bring Suit. If a claim
under Section 1 of this Article is not paid in full by the
Corporation within thirty days after a written claim has been
received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its
final disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the claimant
has failed to meet a standard of conduct which makes it
permissible under Delaware law for the Corporation to indemnify
the claimant for the amount claimed. Neither the failure of the
Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior
to the commencement of such action that indemnification of the
claimant is permissible in the circumstances because he or she
has met such standard of conduct, nor an actual determination by
the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the claimant has not met
such standard of conduct, shall be a defense to the action or
create a presumption that the claimant has failed to meet such
standard of conduct.
Section 3. Non-Exclusivity of Rights. The right to
indemnification and the payment of expenses incurred in defending
a proceeding in advance of its final disposition conferred in
this Article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision
of the Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 4. Insurance. The Corporation may maintain
insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability, loss, whether or
not the Corporation would have the power to indemnify such person
against such expense, liability or loss under Delaware law.
Section 5. Expenses as a Witness. To the extent that any
director, officer, employee or agent of the Corporation is by
reason of such position, or a position with another entity at the
request of the Corporation, a witness in any action, suit or
proceeding, he shall be indemnified against all costs and
expenses actually and reasonably incurred by him or her or on his
or her behalf in connection therewith.
15<PAGE>
Section 6. Indemnity Agreements. The Corporation may enter
into agreements with any director, officer, employee or agent of
the Corporation providing for indemnification to the full extent
permitted by Delaware law.
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