<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
SYNTHETIC INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 58-1049400
(State of incorporation or organization) (I.R.S. Employer Identification No.)
309 LAFAYETTE ROAD
CHICKAMAUGA, GA 30707
(address of principal executive offices) (Zip Code)
</TABLE>
(706) 375-3121
(Registrant's telephone number,
including area code)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A(c)(1), please check the
following box. [ ]
If this Form relates to the registration of a class of debt securities and is
to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Title of each class Name of each exchange on which
to be so registered each class is to be registered
- - ------------------- ------------------------------
<S> <C>
Common Stock, $1.00 par value Nasdaq National Market
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
<PAGE> 2
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
A description of the common stock, $1.00 par value per share, of
Synthetic Industries, Inc., a Delaware corporation (the "Registrant"), to be
registered hereunder is set forth under the caption "Description of Capital
Stock" in the Prospectus contained in the Registrant's Registration Statement
on Form S-1 (No. 333-09377), as amended, filed with the Securities and Exchange
Commission on October 4, 1996 under the Securities Act of 1933, as amended,
which description is incorporated herein by reference.
ITEM 2. EXHIBITS
The following exhibits to this Registration Statement on Form
8-A, which constitute all constituent instruments defining the rights of the
holders of the Registrant's Common Stock, including any contracts or other
documents which limit or qualify the rights of such holders, are either filed
herewith or are incorporated by reference from the documents specified, which
have been filed with the Securities and Exchange Commission.
1. The Registrant's Annual Report on Form 10-K filed with the
Securities and Exchange Commission on December 8, 1995.+
2. The Registrant's Quarterly Report on Form 10-Q filed with the
Securities and Exchange Commission on February 12, 1996.+
3. The Registrant's Quarterly Report on Form 10-Q filed with the
Securities and Exchange Commission on May 13, 1996.+
4. The Registrant's Quarterly Report on Form 10-Q filed with the
Securities and Exchange Commission on August 6, 1996.+
5. Amended and Restated Certificate of Incorporation of the
Registrant.*
6. Amended and Restated Bylaws of the Registrant.*
7. Form of Registration Rights Agreement between the Registrant and
Synthetic Industries, L.P. (incorporated by reference to Exhibit
10.30 filed as part of Amendment No. 1 to the Registrant's
Registration Statement on Form S-1 (No. 333-09377) filed with the
Securities and Exchange Commission on September 13, 1996).+
8. Specimen common stock certificate.*
__________
* Filed herewith
+ Previously filed
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, as amended, the Registrant has duly caused this
Registration Statement on Form 8-A to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: October 24, 1996
SYNTHETIC INDUSTRIES, INC.
By: /s/ LEONARD CHILL
----------------------------------
Leonard Chill President and
Chief Executive Officer
-3-
<PAGE> 4
EXHIBIT INDEX
Exhibit No.
1. The Registrant's Annual Report on
Form 10-K filed with the Securities
and Exchange Commission on December 8,
1995.+
2. The Registrant's Quarterly Report on
Form 10-Q filed with the Securities
and Exchange Commission on February 12,
1996.+
3. The Registrant's Quarterly Report on
Form 10-Q filed with the Securities and
Exchange Commission on May 13, 1996.+
4. The Registrant's Quarterly Report on
Form 10-Q filed with the Securities and
Exchange Commission on August 6, 1996.+
5. Certificate of Incorporation of the
Registrant.*
6. Bylaws of the Registrant.*
7. Form of Registration Rights Agreement
between the Registrant and Synthetic
Industries, L.P. (incorporated by
reference to Exhibit 10.30 filed as
part of Amendment No. 1 to the
Registrant's Registration Statement
on Form S-1 (No. 333-09377) filed
with the Securities and Exchange
Commission on September 13, 1996).+
8. Specimen common stock certificate.*
__________
* Filed herewith
+ Previously filed
-4-
<PAGE> 1
EXHIBIT 5
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SYNTHETIC INDUSTRIES, INC.
ARTICLE I
NAME
The name of the corporation is Synthetic Industries, Inc. (the
"Corporation").
ARTICLE II
PERIOD OF DURATION
This Corporation shall exist perpetually unless dissolved according to
law.
ARTICLE III
PURPOSE
The purpose for which this Corporation is organized is to engage in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
ARTICLE IV
CAPITAL STOCK
SECTION 1. Authorized Stock.
The aggregate number of shares of stock which this Corporation shall
have authority to issue is twenty five million (25,000,000) shares of Common
Stock with a par value of one dollar ($1.00) per share ("Common Stock").
All shares when issued shall be fully paid and nonassessable.
<PAGE> 2
No stockholder or subscriber to the stock of the Corporation shall be
under any obligation to any creditor of the Corporation with respect to such
stock other than the obligation to pay the Corporation the full consideration
for which the stock was issued or is to be issued.
SECTION 2. Voting Rights.
Voting power for the election of directors and for all other purposes
shall be vested exclusively in the holders of the Common Stock. At every
meeting of stockholders of the Corporation each holder of Common Stock shall be
entitled to one vote in person or by proxy for each share of Common Stock held
by such holder
SECTION 3. No Written Ballot.
Elections of directors need not be by written ballot except and to the
extent provided in the Bylaws of the Corporation.
ARTICLE V
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company. Either the registered office or the registered agent may be changed
in the manner provided by law.
ARTICLE VI
LIMITATION OF LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or to its stockholders for monetary damages for breach of fiduciary
duty as a director; except that this provision shall not eliminate or limit the
liability of a director to the Corporation or to its stockholders for monetary
damages otherwise existing for (i) any breach of the director's duty of loyalty
to the Corporation or to its stockholders; (ii) acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law;
(iii) acts specified in Section 174 of the General Corporation Law of Delaware;
or (iv) any transaction from which the director directly or indirectly derived
any improper personal benefit. If the General Corporation Law of Delaware is
hereafter amended to eliminate or limit further the liability of a director,
then, in addition to the elimination and limitation of liability provided by
the preceding sentence, the liability of each director of the Corporation shall
be eliminated or limited to the fullest extent permitted by the General
Corporation Law of Delaware as so amended. Any repeal or modification of this
ARTICLE VI shall not adversely affect any right or protection of a director of
the Corporation under this
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ARTICLE VI, as in effect immediately prior to such repeal or modification, with
respect to any liability that would have accrued, but for this ARTICLE VI,
prior to such repeal or modification.
ARTICLE VII
INDEMNIFICATION
The Corporation may indemnify, to the fullest extent permitted by
applicable law in effect from time to time, any person, and the estate and
personal representative of any such person, against all liability and expense
(including attorneys' fees) incurred by reason of the fact that such person is
or was a director, officer, fiduciary, or agent of the Corporation or, while
serving as a director, officer, fiduciary, or agent of the Corporation, is or
was serving at the request of the Corporation as a director, officer, partner,
trustee, employee, fiduciary, or agent of, or in any similar managerial or
fiduciary position of, another domestic or foreign corporation or other
individual or entity or of an employee benefit plan to the extent and in the
manner provided in any bylaw, resolution of the directors, resolution of the
stockholders, contract, or otherwise so long as such indemnification is legally
permissible.
ARTICLE VIII
VOTING OF STOCKHOLDERS
Except as may otherwise be provided by applicable law or the Bylaws of
the Corporation, with respect to any action to be taken by stockholders of the
Corporation, a vote or concurrence of the holders of a majority of the
outstanding shares entitled to vote thereon, or of any class or series entitled
to vote thereon, shall be required; provided, however, that this ARTICLE VIII
of this Restated Certificate of Incorporation and ARTICLE IV of the Bylaws of
the Corporation shall not be altered, amended or repealed by, and no provision
inconsistent therewith shall be adopted by, the stockholders without the
affirmative vote of the holders of at least 66 2/3% of the Common Stock, voting
together as a single class.
Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at an annual or special meeting of
stockholders of the Corporation and may not be effected in lieu thereof by any
consent in writing by such stockholders.
ARTICLE IX
BYLAWS
In furtherance and not in limitation of the power conferred by law,
the Board of Directors is expressly authorized to make, alter or repeal the
Bylaws of the Corporation.
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<PAGE> 4
ARTICLE X
BOARD OF DIRECTORS
The number of directors which shall constitute the whole board shall
be such as from time to time shall be fixed by resolution adopted by
affirmative vote of a majority of the Board of Directors.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which
restates and integrates and further amends the provisions of the Certificate of
Incorporation, as amended, of this Corporation, and has been duly adopted in
accordance with Sections 242 and 245 of the General Corporation Law of the
State of Delaware, has been executed by its Chief Executive Officer and
attested by its Secretary on this the 24th day of October, 1996.
SYNTHETIC INDUSTRIES, INC.
By: /s/ LEONARD CHILL
------------------------------------
Chief Executive Officer
ATTEST:
/S/ JOSEPH SINICROPI
- - ---------------------------------------
Secretary
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<PAGE> 1
EXHIBIT 6
B Y L A W S
OF
SYNTHETIC INDUSTRIES, INC.
<PAGE> 2
INDEX
ARTICLE I
OFFICES
<TABLE>
<S> <C> <C> <C>
SECTION 1.1 Principal Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 1.2 Registered Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 1.3 Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
</TABLE>
ARTICLE II
STOCKHOLDERS' MEETINGS
<TABLE>
<S> <C> <C> <C>
SECTION 2.1 Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.2 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.3 Notice of Meetings and Adjourned Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.4 Voting Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.5 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.6 Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.7 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.8 Stockholders Entitled to Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.9 Order of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.10 Action by Written Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.11 Authorization of Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.12 Inspectors and Voting Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
</TABLE>
ARTICLE III
DIRECTORS
<TABLE>
<S> <C> <C> <C>
SECTION 3.1 Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.2 Number and Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.3 Quorum and Manner of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.4 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.5 Resignations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.6 Removals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.7 Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.8 Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.9 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
2
<PAGE> 3
<TABLE>
<S> <C> <C> <C>
SECTION 3.10 Organization of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.11 Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.12 Compensation of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.13 Action by Unanimous Written Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.14 Participation in Meetings by Telephone . . . . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
ARTICLE IV
COMMITTEES OF THE BOARD
<TABLE>
<S> <C> <C> <C>
SECTION 4.1 Membership and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.2 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.3 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.4 Telephone Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.5 Action Without Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
ARTICLE V
OFFICERS
<TABLE>
<S> <C> <C> <C>
SECTION 5.1 Number and Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.2 Term of Office; Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.3 Removal of Elected Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.4 Resignations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.5 The Chairman of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.6 President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.7 Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.8 Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.9 Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.10 Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.11 Assistant Treasurers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.12 Subordinate Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.13 Salaries and Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
ARTICLE VII
CAPITAL STOCK
3
<PAGE> 4
<TABLE>
<S> <C> <C> <C>
SECTION 7.1 Certificates of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.2 Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.3 Fixing Date for Determination of Stockholders of Record for Certain Purposes . . . . . . . 20
SECTION 7.4 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.5 Registered Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.6 Transfer of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
ARTICLE VIII
MISCELLANEOUS PROVISIONS
<TABLE>
<S> <C> <C> <C>
SECTION 8.1 Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 8.2 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.3 Checks, Drafts, Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.4 Notice and Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.5 Examination of Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.6 Voting Upon Shares Held by the Corporation . . . . . . . . . . . . . . . . . . . . . . . . 23
</TABLE>
ARTICLE IX
AMENDMENTS
<TABLE>
<S> <C> <C> <C>
SECTION 9.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
</TABLE>
4
<PAGE> 5
SYNTHETIC INDUSTRIES, INC.
BYLAWS
ARTICLE I
OFFICES
SECTION 1.1 Principal Office.
The principal office of the Corporation shall be in the City of
Chickamauga, Georgia.
SECTION 1.2 Registered Office.
The registered office of the Corporation required to be maintained
in the State of Delaware by the General Corporation Laws of the State of
Delaware, may be, but need not be, identical with the Corporation's principal
office, and the address of the registered office may be changed from time to
time by the Board of Directors.
SECTION 1.3 Other Offices.
The Corporation may also have offices at such other places both within
and 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
STOCKHOLDERS' MEETINGS
SECTION 2.1 Annual Meeting.
The annual meeting of the holders of shares of each class or series of
stock as are entitled to notice thereof and to vote thereat pursuant to
applicable law and the Corporation's Certificate of Incorporation for the
purpose of electing directors and transacting such other proper business as may
come before it shall be held in each year, at such time, on such day and at
such place, within or without the State of Delaware, as may be designated by
the Board of Directors.
SECTION 2.2 Special Meetings.
In addition to such special meetings as are provided by law or the
Corporation's Certificate of Incorporation, special meetings of the holders of
any class or series or of all classes or series of the Corporation's stock for
any purpose or purposes, may be called at any time by the Board of
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<PAGE> 6
Directors and may be held on such day, at such time and at such place, within or
without the State of Delaware, as shall be designated by the Board of Directors.
SECTION 2.3 Notice of Meetings and Adjourned Meetings.
Except as otherwise provided by law, written notice of any meeting of
Stockholders (i) shall be given either by personal delivery or by mail to each
Stockholder of record entitled to vote thereat, (ii) shall be in such form as
is approved by the Board of Directors, and (iii) shall state the date, place
and hour of the meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. Unless otherwise provided by law,
such written notice shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting. Except when a Stockholder attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business on the ground that the meeting is not
lawfully called or convened, presence in person or by proxy of a Stockholder
shall constitute a waiver of notice of such meeting. Further, a written waiver
of any notice required by law or by these Bylaws, signed by the person entitled
to notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Except as otherwise provided by law, the business that
may be transacted at any such meeting shall be limited to and consist of the
purpose or purposes stated in such notice. If a meeting is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the adjournment is
taken; provided, however, that if the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
Stockholder of record entitled to vote at the meeting.
SECTION 2.4 Voting Lists.
The officer or agent having charge of the stock transfer books for
shares of the Corporation shall keep a complete list of Stockholders entitled
to vote at meetings or any adjournments thereof, arranged in alphabetical
order, in accordance with applicable law and shall make same available prior to
and during each Stockholders' meeting for inspection by the Corporation's
Stockholders as required by law. The Corporation's original stock transfer
books shall be prima facie evidence as to who are the Stockholders entitled to
examine such list or transfer books or to vote at any meeting of Stockholders.
SECTION 2.5 Quorum.
Except as otherwise provided by law or by the Corporation's
Certificate of Incorporation, the holders of a majority of the Corporation's
stock issued and outstanding and entitled to vote at a meeting, present in
person or represented by proxy, without regard to class or series, shall
constitute a quorum at all meetings of the Stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any
meeting of the Stockholders, the holders of a majority of such shares of stock,
present in person or represented by proxy, may adjourn any meeting from time to
time without notice other than announcement at the meeting, except as
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<PAGE> 7
otherwise required by these Bylaws, until a quorum shall be present or
represented. At any 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 called.
SECTION 2.6 Organization.
Meetings of the Stockholders shall be presided over by the Chairman of
the Board of Directors, if one shall be elected, or in his absence, by the
President or by any Vice President, or, in the absence of any of such officers,
by a chairman to be chosen by a majority of the Stockholders entitled to vote
at the meeting who are present in person or by proxy. The Secretary, or, in
his absence, any Assistant Secretary or any person appointed by the individual
presiding over the meeting, shall act as secretary at meetings of the
Stockholders.
SECTION 2.7 Voting.
Each Stockholder of record, as determined pursuant to Section 2.8, who
is entitled to vote in accordance with the terms of the Corporation's
Certificate of Incorporation and in accordance with the provisions of these
Bylaws, shall be entitled to one vote, in person or by proxy, for each share of
stock registered in his name on the books of the Corporation. Every
Stockholder entitled to vote at any Stockholders' meeting may authorize another
person or persons to act for him by proxy pursuant to Section 2.12(c), provided
that no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only so
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A Stockholder's attendance at any meeting shall not have
the effect of revoking a previously granted proxy unless such Stockholder shall
in writing so notify the Secretary of the meeting prior to the voting of the
proxy. Unless otherwise provided by law, no vote on the election of directors
or any question brought before the meeting need be by ballot unless the
chairman of the meeting shall determine that it shall be by ballot or the
holders of a majority of the shares of stock present in person or by proxy and
entitled to participate in such vote shall so demand. In a vote by ballot,
each ballot shall state the number of shares voted and the name of the
Stockholder or proxy voting. Except as otherwise provided by law, by the
Corporation's Certificate of Incorporation or these Bylaws, all elections of
directors and all other matters before the Stockholders shall be decided by the
vote of the holders of a majority of the shares of stock present in person or
by proxy at the meeting and entitled to vote in the election or on the
question. In the election of directors, votes may not be cumulated.
SECTION 2.8 Stockholders Entitled to Vote.
The Board of Directors may fix a date not more than sixty (60) days
nor less than ten (10) days prior to the date of any meeting of Stockholders,
or, in the case of corporate action by written consent in accordance with the
terms of Section 2.10(b), not prior to the date upon which the resolution of
the Board of Directors fixing the record date is adopted and not more than ten
(10) days after the date upon which the resolution of the Board of Directors
fixing the record date is adopted,
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as a record date for the determination of the Stockholders entitled to notice of
and to vote at such meeting and any adjournment thereof, or to act by written
consent, and in each case such Stockholders and only such Stockholders as shall
be Stockholders of record on the date so fixed shall be entitled to notice of
and to vote at such meeting and any adjournment thereof, or to act by written
consent, as the case may be, notwithstanding any transfer of any stock on the
books of the Corporation after such record date fixed as aforesaid.
SECTION 2.9 Order of Business.
The order of business at all meetings of Stockholders shall be as
determined by the chairman of the meeting or as is otherwise determined by the
vote of the holders of a majority of the shares of stock present in person or
by proxy and entitled to vote without regard to class or series at the meeting.
SECTION 2.10 Action by Written Consent.
Unless otherwise provided by law, no action required or permitted to
be taken by the Stockholders of the Corporation shall be taken by the
Stockholders by written consent.
SECTION 2.11 Authorization of Proxies.
Without limiting the manner in which a Stockholder may authorize
another person or persons to act for him as proxy, the following are valid
means of granting such authority. A Stockholder may execute a writing
authorizing another person or persons to act for him as proxy. Execution may
be accomplished by the Stockholder or his authorized officer, director,
employee or agent signing such writing or causing his or her signature to be
affixed to such writing by any reasonable means including, but not limited to,
by facsimile signature. A Stockholder may also authorize another person or
persons to act for him as proxy by transmitting or authorizing the transmission
of a telegram, cablegram, or other means of electronic transmission to the
person who will be the holder of the proxy or to a proxy solicitation firm,
proxy support service organization or like agent duly authorized by the person
who will be the holder of the proxy to receive such transmission, provided that
any such telegram, cablegram or other means of electronic transmission must
either set forth or be submitted with information from which it can be
determined that the telegram, cablegram or other electronic transmission was
authorized by the Stockholder. If it is determined that such telegrams,
cablegrams or other electronic transmissions are valid, the inspectors or, if
there are no inspectors, such other persons making that determination shall
specify the information upon which they relied. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission
created pursuant to this section may be substituted or used in lieu of the
original writing or transmission for any and all purposes for which the writing
or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
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SECTION 2.12 Inspectors and Voting Procedures.
(a) The Corporation shall, in advance of any meeting of
Stockholders, appoint one or more inspectors to act at the meeting and make a
written report thereof. The Corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of Stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of
shares outstanding and the voting power of each, (ii) determine the shares
represented at a meeting and the validity of proxies and ballots, (iii) count
all votes and ballots, (iv) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the
inspectors, and (v) certify their determination of the number of shares
represented at the meeting, and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors.
(c) The date and time of the opening and closing of the
polls for each matter upon which the Stockholders will vote at a meeting shall
be announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Court of Chancery upon application by a
Stockholder shall determine otherwise.
(d) In determining the validity and counting of proxies
and ballots, the inspectors may examine and consider such records or factors as
allowed by the General Corporation Laws of the State of Delaware.
ARTICLE III
DIRECTORS
SECTION 3.1 Management.
The property, affairs and business of the Corporation shall be managed
by or under the direction of the Board of Directors which may exercise all
powers of the Corporation and do all lawful acts and things as are not by law,
by the Corporation's Certificate of Incorporation or by these Bylaws directed
or required to be exercised or done by the Stockholders.
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SECTION 3.2 Number and Term.
The number of directors may be fixed from time to time by resolution
of the Board of Directors adopted by the affirmative vote of a majority of the
members of the entire Board of Directors, but shall consist of not less than
one (1) member who shall be elected annually by the Stockholders except as
provided in Section 3.4. Directors need not be Stockholders. No decrease in
the number of directors shall have the effect of shortening the term of office
of any incumbent director.
SECTION 3.3 Quorum and Manner of Action.
At all meetings of the Board of Directors a majority of the total
number of directors holding office 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, by the
Corporation's Certificate of Incorporation or these Bylaws. When the Board of
Directors consists of one director, the one director shall constitute a
majority and a quorum. If at any meeting of the Board of Directors there shall
be less than a quorum present, a majority of those present may adjourn the
meeting from time to time until a quorum is obtained, and no further notice
thereof need be given other than by announcement at such adjourned meeting.
Attendance by a director at a meeting shall constitute a waiver of notice of
such meeting except where a director attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
SECTION 3.4 Vacancies.
Except as otherwise provided by law or the Corporation's Certificate
of Incorporation, in the case of any increase in the authorized number of
directors or of any vacancy in the Board of Directors, however created, the
additional director or directors may be elected, or, as the case may be, the
vacancy or vacancies may be filled by majority vote of the directors remaining
on the whole Board of Directors although less than a quorum, or by a sole
remaining director. In the event one or more directors shall resign, effective
at a future date, such vacancy or vacancies shall be filled by a majority of
the directors who will remain on the whole Board of Directors, although less
than a quorum, or by a sole remaining director. Any director elected or chosen
as provided herein shall serve until the sooner of: (i) the unexpired term of
the directorship to which he is appointed; (ii) until his successor is elected
and qualified; or (iii) until his earlier resignation or removal.
SECTION 3.5 Resignations.
A director may resign at any time upon written notice of resignation
to the Corporation. Any resignation shall be effective immediately unless a
certain effective date is specified therein, in which event it will be
effective upon such date and acceptance of any resignation shall not be
necessary to make it effective.
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SECTION 3.6 Removals.
Any director or the entire Board of Directors may be removed, with or
without cause, and another person or persons may be elected to serve for the
remainder of his or their term by the holders of a majority of the shares of
the Corporation entitled to vote in the election of directors. In case any
vacancy so created shall not be filled by the Stockholders at such meeting,
such vacancy may be filled by the directors as provided in Section 3.4.
SECTION 3.7 Annual Meetings.
The annual meeting of the Board of Directors shall be held, if a
quorum be present, immediately following each annual meeting of the
Stockholders at the place such meeting of Stockholders took place, for the
purpose of organization and transaction of any other business that might be
transacted at a regular meeting thereof, and no notice of such meeting shall be
necessary. If a quorum is not present, such annual meeting may be held at any
other time or place that may be specified in a notice given in the manner
provided in Section 3.9 for special meetings of the Board of Directors or in a
waiver of notice thereof.
SECTION 3.8 Regular Meetings.
Regular meetings of the Board of Directors may be held without notice
at such places and times as shall be determined from time to time by resolution
of the Board of Directors. Except as otherwise provided by law, any business
may be transacted at any regular meeting of the Board of Directors.
SECTION 3.9 Special Meetings.
Special meetings of the Board of Directors may be called by the
President, or by the Secretary on the written request of one-third (1/3) of the
members of the whole Board of Directors stating the purpose or purposes of such
meeting. Notices of special meetings, if mailed, shall be mailed to each
director not later than two (2) days before the day the meeting is to be held
or if otherwise given in the manner permitted by these Bylaws, not later than
the day before such meeting. Neither the business to be transacted at, nor the
purpose of, any special meeting need be specified in any notice or written
waiver of notice unless so required by the Corporation's Certificate of
Incorporation or by these Bylaws. Any and all business may be transacted at a
special meeting, unless limited by law, the Corporation's Certificate of
Incorporation or by these Bylaws.
SECTION 3.10 Organization of Meetings.
At any meeting of the Board of Directors, business shall be transacted
in such order and manner as such Board of Directors may from time to time
determine, and all matters shall be determined by the vote of a majority of the
directors present at any meeting at which there is a quorum, except as
otherwise provided by these Bylaws or required by law.
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SECTION 3.11 Place of Meetings.
The Board of Directors may hold their meetings and have one or more
offices, and keep the books of the Corporation, outside the State of Delaware,
at any office or offices of the Corporation, or at any other place as they may
from time to time by resolution determine.
SECTION 3.12 Compensation of Directors.
Directors shall not receive any stated salary for their services as
directors, but by resolution of the Board of Directors a fixed honorarium or
fees and expenses, if any, of attendance may be allowed for attendance at each
meeting. Nothing herein contained shall be construed to 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 such committee meetings.
SECTION 3.13 Action by Unanimous Written Consent.
Unless otherwise restricted by law, the Corporation's Certificate of
Incorporation or these Bylaws, 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 of Directors or of such
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 of Directors or
the committee.
SECTION 3.14 Participation in Meetings by Telephone.
Unless otherwise restricted by the Corporation's Certificate of
Incorporation or these Bylaws, members of the Board of Directors or of any
committee thereof may participate in a meeting of such Board of Directors 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.
Participation in a meeting in such manner shall constitute presence in person
at such meeting, except where a person participates in the meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the grounds that the meeting is not lawfully
called or convened.
ARTICLE IV
COMMITTEES OF THE BOARD
SECTION 4.1 Membership and Authorities.
The Board of Directors may, by resolution or resolutions passed by a
majority of the whole Board of Directors, designate one (1) or more Directors
to constitute an Executive Committee and such other committees as the Board of
Directors may determine, each of which committees to the
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extent provided in said resolution or resolutions or in these Bylaws, shall have
and may exercise all the powers of the Board of Directors in the management of
the business and affairs of the Corporation, except in those cases where the
authority of the Board of Directors is specifically denied to the Executive
Committee or such other committee or committees by law, the Corporation's
Certificate of Incorporation or these Bylaws, and may authorize the seal of the
Corporation to be affixed to all papers that may require it. The designation of
an Executive Committee or other committee and the delegation thereto of
authority shall not operate to relieve the Board of Directors, or any member
thereof, of any responsibility imposed upon it or him by law.
SECTION 4.2 Minutes.
Each committee designated by the Board of Directors shall keep regular
minutes of its proceedings and report the same to the Board of Directors when
required.
SECTION 4.3 Vacancies.
The Board of Directors may designate one (1) or more of its members as
alternate members of any committee who may replace any absent or disqualified
member at any meeting of such committee. If no alternate members have been
appointed, the committee 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 of Directors to act at the
meeting in the place of any absent or disqualified member. The Board of
Directors shall have the power at any time to fill vacancies in, to change the
membership of, and to dissolve, any committee.
SECTION 4.4 Telephone Meetings.
Members of any committee designated by the Board of Directors may
participate in or hold a meeting by use of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this
Section 4.4 shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened.
SECTION 4.5 Action Without Meeting.
Any action required or permitted to be taken at a meeting of any
committee designated by the Board of Directors may be taken without a meeting
if a consent in writing, setting forth the action so taken, is signed by all
the members of the committee and filed with the minutes of the committee
proceedings. Such consent shall have the same force and effect as a unanimous
vote at a meeting.
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ARTICLE V
OFFICERS
SECTION 5.1 Number and Title.
The elected officers of the Corporation shall be chosen by the Board
of Directors and shall be a President, a Vice President, a Secretary and a
Treasurer. The Board of Directors may also choose a Chairman of the Board, who
must be a Board member of the Board of Directors, and additional Vice
Presidents, Assistant Secretaries and/or Assistant Treasurers. One person may
hold any two or more of these offices and any one or more of the Vice
Presidents may be designated as an Executive Vice President or Senior Vice
President.
SECTION 5.2 Term of Office; Vacancies.
So far as is practicable, all elected officers shall be elected by the
Board of Directors at the annual meeting of the Board of Directors in each
year, and except as otherwise provided in this Article V, shall hold office
until the next such meeting of the Board of Directors in the subsequent year
and until their respective successors are elected and qualified or until their
earlier resignation or removal. All appointed officers shall hold office at
the pleasure of the Board of Directors. If any vacancy shall occur in any
office, the Board of Directors may elect or appoint a successor to fill such
vacancy for the remainder of the term.
SECTION 5.3 Removal of Elected Officers.
Any elected officer may be removed at any time, with or without cause,
by affirmative vote of a majority of the whole Board of Directors, at any
regular meeting or at any special meeting called for such purpose.
SECTION 5.4 Resignations.
Any officer may resign at any time upon written notice of resignation
to the President, Secretary or Board of Directors of the Corporation. Any
resignation shall be effective immediately unless a date certain is specified
for it to take effect, in which event it shall be effective upon such date, and
acceptance of any resignation shall not be necessary to make it effective,
irrespective of whether the resignation is tendered subject to such acceptance.
SECTION 5.5 The Chairman of the Board.
The Chairman of the Board, if one shall be elected, shall preside at
all meetings of the Stockholders and Board of Directors. In addition, the
Chairman of the Board shall perform whatever duties and shall exercise all
powers that are given to him by the Board of Directors.
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SECTION 5.6 President.
The President shall be the chief executive officer of the Corporation;
shall (in the absence of the Chairman of the Board, if one be elected) preside
at meetings of the Stockholders and Board of Directors; shall be ex officio a
member of all standing committees; shall have general and active management of
business of the corporation; shall implement the general directives, plans and
policies formulated by the Board of Directors; and shall further have such
duties, responsibilities and authorities as may be assigned to him by the Board
of Directors. He may sign, with any other proper officer, certificates for
shares of the Corporation and any deeds, bonds, mortgages, contracts and other
documents which the Board of Directors has authorized to be executed, except
where required by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors or these Bylaws, to some other officer or agent of the Corporation.
In the absence of the President, his duties shall be performed and his
authority may be exercised by a Vice President of the Corporation as may have
been designated by the President with the right reserved to the Board of
Directors to designate or supersede any designation so made.
SECTION 5.7 Vice Presidents.
The several Vice Presidents shall have such powers and duties as may
be assigned to them by these Bylaws and as may from time to time be assigned to
them by the Board of Directors and may sign, with any other proper officer,
certificates for shares of the Corporation.
SECTION 5.8 Secretary.
The Secretary, if available, shall attend all meetings of the Board of
Directors and all meetings of the Stockholders and record the proceedings of
the meetings in a book to be kept for that purpose and shall perform like
duties for any committee of the Board of Directors as shall designate him to
serve. He shall give, or cause to be given, notice of all meetings of the
Stockholders and meetings of the Board of Directors and committees thereof and
shall perform such other duties incident to the office of secretary or as may
be prescribed by the Board of Directors or the President, under whose
supervision he shall be. He shall have custody of the corporate seal of the
Corporation and he, or any Assistant Secretary, or any other person whom the
Board of Directors may designate, 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 any Assistant Secretary or by the signature of
such other person so affixing such seal.
SECTION 5.9 Assistant Secretaries.
Each Assistant Secretary shall have the usual powers and duties
pertaining to his office, together with such other powers and duties as may be
assigned to him by the Board of Directors, the President or the Secretary. The
Assistant Secretary or such other person as may be designated by
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the President shall exercise the powers of the Secretary during that officer's
absence or inability to act.
SECTION 5.10 Treasurer.
The Treasurer shall have the custody of and be responsible for the
corporate funds and securities, shall keep full and accurate accounts of
receipts and disbursements in the 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. He 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 account of all his
transactions as Treasurer and of the financial condition of the Corporation and
he shall perform all other duties incident to the position of Treasurer, or as
may be prescribed by the Board of Directors or the President. If required by
the Board of Directors, he shall give the Corporation a bond in such sum and
with 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 5.11 Assistant Treasurers.
Each Assistant Treasurer shall have the usual powers and duties
pertaining to his office, together with such other powers and duties as may be
assigned to him by the Board of Directors, the President or the Treasurer. The
Assistant Treasurer or such other person designated by the President shall
exercise the power of the Treasurer during that officer's absence or inability
to act.
SECTION 5.12 Subordinate Officers.
The Board of Directors may (i) appoint such other subordinate officers
and agents as it shall deem necessary who shall hold their offices for such
terms, have such authority and perform such duties as the Board of Directors
may from time to time determine, or (ii) delegate to any committee or officer
the power to appoint any such subordinate officers or agents.
SECTION 5.13 Salaries and Compensation.
The salary or other compensation of officers shall be fixed from time
to time by the Board of Directors. The Board of Directors may delegate to any
committee or officer the power to fix from time to time the salary or other
compensation of subordinate officers and agents appointed in accordance with
the provisions of Section 5.12.
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ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
(a) The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation)
by reason of the fact that such person is or was, at any time prior to or
during which this Article VI is in effect, a director, officer, employee or
agent of the Corporation, or is or was, at any time prior to or during which
this Article VI is in effect, serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against reasonable
expenses (including attorneys' fees), judgments, fines, penalties, amounts paid
in settlement and other liabilities actually and reasonably incurred by such
person in connection with such action, suit or proceeding if 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, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe that 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 such person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was, at any
time prior to or during which this Article VI is in effect, a director,
officer, employee or agent of the Corporation, or is or was, at any time prior
to or during which this Article VI is in effect, serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if 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; provided, that no
indemnification shall be made under this sub-section (b) in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Delaware Court
of Chancery, or other court of appropriate jurisdiction in which such action or
suit was brought, shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Delaware Court of Chancery, or such other court shall deem proper.
(c) Any indemnification under sub-sections (a) or (b) of
this Article VI (unless ordered by the Delaware Court of Chancery or other
court of appropriate jurisdiction) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification
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of such person is proper in the circumstances because he has met the applicable
standard of conduct set forth in sub-sections (a) and (b). Such determination
shall be made (1) by the Board of Directors by a majority vote of a quorum
consisting of directors not parties to such action, suit or proceeding; or (2)
if such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel selected by
the Board of Directors, in written opinion; or (3) by the Stockholders. In the
event a determination is made under this sub-section (c) that the director,
officer, employee or agent has met the applicable standard of conduct as to
some matters but not as to others, amounts to be indemnified may be reasonably
prorated.
(d) Expenses (including attorneys' fees) incurred by a
person who is or was a director or officer of the Corporation in appearing at,
participating in or defending any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, shall
be paid by the Corporation at reasonable intervals in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking
by or on behalf of the director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized by this Article VI.
(e) If a claim under this Article VI is not paid in full
by the Corporation within ninety 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 not met the standards of conduct which make it
permissible under the Delaware General Corporation Law for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. 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 proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, 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 applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(f) It is the intention of the Corporation to indemnify
the persons referred to in this Article VI to the fullest extent permitted by
law and with respect to any action, suit or proceeding arising from events
which occur at any time prior to or during which this Article VI is in effect.
The indemnification and advancement of expenses provided by this Article VI
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be or become entitled under any
law, the Corporation's Certificate of Incorporation, these Bylaws, agreement,
the vote of Stockholders or disinterested directors or otherwise, or under any
policy or policies of insurance purchased and maintained by the Corporation on
behalf of any
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such person, 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 person. The
provisions of this Article VI are contract rights which (i) are for the benefit
of, and may be enforced by, each director or officer of the Corporation the
same as if set forth in their entirety in a written instrument duly executed
and delivered by the Corporation and each such director or officer and (ii)
constitute a continuing offer to all present and future directors or officers
of the Corporation. The Corporation, by its adoption of these Bylaws, (i)
acknowledges and agrees that each present and future director or officer of the
Corporation has relied upon and will continue to rely upon the provisions of
this Article VI in becoming, and serving as, a director or officer of the
Corporation or, if requested by the Corporation, a director, officer, employee,
agent, trustee or the like of another corporation or other enterprise, (ii)
waives reliance upon, and all notices of acceptance of, such provisions by such
directors or officers and (iii) acknowledges and agrees that no present or
future director or officer of the Corporation shall be prejudiced in his right
to enforce the provisions of this Article VI in accordance with their terms by
any act or failure to act on the part of the Corporation. No amendment,
modification or repeal of this Article VI or any provision hereof shall in any
manner terminate, reduce or impair the right of any past, present or future
director or officer of the Corporation to be indemnified or advanced expenses
by the Corporation, nor the obligation of the Corporation to indemnify or
advance expenses to any such director or officer under and in accordance with
the provisions of this Article VI as in effect immediately prior to such
amendment, modification or repeal with respect to claims arising from or
relating to matters occurring, in whole or in part, prior to such amendment,
modification or repeal, regardless of when such claim may arise or be asserted.
The provisions of this Article VI shall be binding upon the Corporation and its
successors and assigns and shall inure to the benefit of each director or
officer of the Corporation and his or her heirs, legal representatives and
assigns.
(g) The indemnification provided by this Article VI shall
be subject to all valid and applicable laws, and, in the event this Article VI
or any of the provisions hereof or the indemnification contemplated hereby are
found to be inconsistent with or contrary to any such valid laws, the latter
shall be deemed to control and this Article VI shall be regarded as modified
accordingly, and, as so modified, to continue in full force and effect.
ARTICLE VII
CAPITAL STOCK
SECTION 7.1 Certificates of Stock.
Certificates of stock shall be issued to each Stockholder certifying
the number of shares owned by him in the Corporation and shall be in a form not
inconsistent with the Certificate of Incorporation and as approved by the Board
of Directors. The certificates shall be signed by the Chairman of the Board,
the President or a Vice President and by the Secretary or an Assistant
Secretary, or the Treasurer or an Assistant Treasurer and may be sealed with
the seal of the
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<PAGE> 20
Corporation or a facsimile thereof. 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 issue. If the Corporation shall be authorized to issue more than one (1)
class of stock or more than one (1) series of any class, the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided by statute, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each Stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
SECTION 7.2 Lost Certificates.
The Board of Directors may direct a new certificate to be issued in
place of any certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by
the owner of such certificate, or his legal representative. When authorizing
the issuance of a new certificate, the Board of Directors may in its
discretion, as a condition precedent to the issuance thereof, require the
owner, or his legal representative, to give a bond in such form and substance
with such surety as it may direct, to indemnify the Corporation against any
claim that may be made on account of the alleged loss, theft or destruction of
such certificate or the issuance of such new certificate.
SECTION 7.3 Fixing Date for Determination of Stockholders of Record for
Certain Purposes.
(a) In order that the Corporation may determine the
Stockholders 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 capital 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 sixty (60) days prior to the date of payment of
such dividend or other distribution or allotment of such rights or the date
when any such rights in respect of any change, conversion or exchange of stock
may be exercised or the date of such other action. In such a case, only
Stockholders of record on the date so fixed shall be entitled to receive any
such dividend or other distribution or allotment of rights or to exercise such
rights or for any other purpose, as the case may be, notwithstanding any
transfer of any stock on the books of the Corporation after any such record
date fixed as aforesaid.
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(b) If no record date is fixed, the record date for determining
Stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
SECTION 7.4 Dividends.
Subject to the provisions of the Corporation's Certificate of
Incorporation, if any, and except as otherwise provided by law, the directors
may declare dividends upon the capital stock of the Corporation as and when
they deem it to be expedient. Such dividends may be paid in cash, in property
or in shares of the Corporation's capital stock. Before declaring any dividend
there may be set apart out of the funds of the Corporation available for
dividends, such sum or sums as the directors from time to time in their
discretion think proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends, or for such other purposes as the
directors shall think conducive to the interests of the Corporation and the
directors may modify or abolish any such reserve in the manner in which it was
created.
SECTION 7.5 Registered Stockholders.
Except as expressly provided by law, the Corporation's Certificate of
Incorporation or these Bylaws, the Corporation shall be entitled to treat
registered Stockholders as the only holders and owners in fact of the shares
standing in their respective names and the Corporation shall not be bound to
recognize any equitable or other claim to or interest in such shares on the
part of any other person, regardless of whether it shall have express or other
notice thereof.
SECTION 7.6 Transfer of Stock.
Transfers of shares of the capital stock of the Corporation shall be
made only on the books of the Corporation by the registered owners thereof, or
by their legal representatives or their duly authorized attorneys. Upon any
such transfers the old certificates shall be surrendered to the Corporation by
the delivery thereof to the person in charge of the stock transfer books and
ledgers, by whom they shall be cancelled and new certificates shall thereupon
be issued.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 Corporate Seal.
If one be adopted, the corporate seal shall have inscribed thereon the
name of the Corporation and shall be in such form as may be approved by the
Board of Directors. Said seal may be used by causing it or a facsimile thereof
to be impressed or affixed or in any manner reproduced.
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<PAGE> 22
SECTION 8.2 Fiscal Year.
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
SECTION 8.3 Checks, Drafts, Notes.
All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the Corporation shall be
signed by such officer or officers, agent or agents of the Corporation, and in
such manner as shall from time to time be determined by resolution (whether
general or special) of the Board of Directors or may be prescribed by any
officer or officers, or any officer and agent jointly, thereunto duly
authorized by the Board of Directors.
SECTION 8.4 Notice and Waiver of Notice.
Whenever notice is required to be given to any director or Stockholder
under the provisions of applicable law, the Corporation's Certificate of
Incorporation or these Bylaws, such notice shall be in writing and delivered
either (i) personally, or (ii) by registered or certified mail, or (iii) by
telegram, telecopy, or similar facsimile means (delivered during the
recipient's regular business hours). Such notice shall be sent to such
director or Stockholder at the address or telecopy number as it appears on the
records of the Corporation, unless prior to the sending of such notice he has
designated, in a written request to the Secretary of the Corporation, another
address or telecopy number to which notices are to be sent. Notices shall be
deemed given when received, if sent by telegram, telex, telecopy or similar
facsimile means (confirmation of such receipt by confirmed facsimile
transmission being deemed receipt of communications sent by telex, telecopy or
other facsimile means); and when delivered and receipted for (or upon the date
of attempted delivery where delivery is refused), if hand-delivered, sent by
express courier or delivery service, or sent by certified or registered mail.
Whenever notice is required to be given under any provision of law, the
Corporation's Certificate of Incorporation or these Bylaws, a waiver thereof in
writing, by telegraph, cable or other form of recorded communication, signed by
the person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance of a person
at a meeting shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
Stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless so required by the
Corporation's Certificate of Incorporation or these Bylaws.
SECTION 8.5 Examination of Books and Records.
The Board of Directors shall determine from time to time whether, and
if allowed, when and under what conditions and regulations the accounts and
books of the Corporation (except such as may by statute be specifically opened
to inspection) or any of them shall be open to inspection by
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the Stockholders, and the Stockholders' rights in this respect are and shall be
restricted and limited accordingly.
SECTION 8.6 Voting Upon Shares Held by the Corporation.
Unless otherwise provided by law or by the Board of Directors, the
Chairman of the Board of Directors, if one shall be elected, or the President,
if a Chairman of the Board of Directors shall not be elected, acting on behalf
of the Corporation, shall have full power and authority to attend and to act
and to vote at any meeting of Stockholders of any corporation in which the
Corporation may hold stock and, at any such meeting, shall possess and may
exercise any and all of the rights and powers incident to the ownership of such
stock which, as the owner thereof, the Corporation might have possessed and
exercised, if present. The Board of Directors by resolution from time to time
may confer like powers upon any person or persons.
ARTICLE IX
AMENDMENTS
SECTION 9.1 Amendment.
Except as otherwise expressly provided in the Corporation's
Certificate of Incorporation, the directors, by the affirmative vote of a
majority of the entire Board of Directors and without the assent or vote of the
Stockholders, may at any meeting make, repeal, alter, amend or rescind any of
these Bylaws. The Stockholders shall not make, repeal, alter, amend or rescind
any of the provisions of these Bylaws except by the holders of not less than a
majority of the total voting power of all shares of stock of the Corporation
entitled to vote in the election of directors, considered for purposes of this
Article IX as one class.
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<PAGE> 1
EXHIBIT 8
<TABLE>
<S> <C>
COMMON STOCK COMMON STOCK
NUMBER SHARES
[SYNTHETIC INDUSTRIES, INC. LOGO]
THIS CERTIFICATE IS TRANSFERABLE SEE REVERSE FOR CERTAIN DEFINITIONS
IN BOSTON, MA OR IN NEW YORK, NY
CUSIP 871914 10 7
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, $1.00 PAR VALUE PER SHARE, OF
SYNTHETIC INDUSTRIES, INC.
transferable on the books of the Corporation by the holder hereof in person or by duly authorized Attorney upon surrender of
this Certificate properly endorsed. This Certificate is not valid until countersigned and registered by the Transfer Agent
and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers.
Dated:
/s/ JOSEPH SINICROPI SYNTHETIC INDUSTRIES INC. /s/ LEONARD CHILL
-------------------------------------- CORPORATE SEAL ------------------------------------
CHIEF FINANCIAL OFFICER AND SECRETARY DELAWARE PRESIDENT AND CHIEF EXECUTIVE OFFICER
COUNTERSIGNED AND REGISTERED:
THE FIRST NATIONAL BANK OF BOSTON
TRANSFER AGENT AND REGISTRAR
BY /s/ M. PENEZIC
----------------------------------------
AUTHORIZED SIGNATURE
</TABLE>
<PAGE> 2
SYNTHETIC INDUSTRIES, INC.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS
THE POWERS, DESIGNATIONS, PREFERENCES, AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF WHICH THE
CORPORATION IS AUTHORIZED TO ISSUE AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS OF EACH SUCH CLASS OF STOCK OR
SERIES THEREOF. ANY SUCH REQUEST SHOULD BE MADE TO THE SECRETARY OF THE
CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS OR TO THE TRANSFER AGENT AND
REGISTRAR.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- .......... Custodian ..........
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act........................
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the
above list.
For Value Received, ______________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_________________________________________
| |
_________________________________________
_______________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP
CODE, OF ASSIGNEE)
_______________________________________________________________________
_______________________________________________________________________
________________________________________________________________ Shares
of the capital stock represented by the within certificate, and do
hereby irrevocably constitute and appoint
_____________________________________________________________ Attorney
to transfer the said stock on the books of the within named Corporation
with full power of substitution in the premises.
Dated ______________________________________________________
_______________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN
EVERY PARTICULAR WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED: ______________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
