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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): MARCH 30, 1995
--------------------------
PRONET INC.
(Exact name of registrant as specified in its charter)
DELAWARE 0-16029 75-1832168
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
incorporation or organization) Identification No.)
600 DATA DRIVE
SUITE 100
PLANO, TEXAS
(Address of principal executive 75075
offices) (Zip code)
Registrant's telephone number, including area code: (214) 964-9500
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ITEM 5. OTHER EVENTS.
A. ADOPTION OF SHAREHOLDERS RIGHTS PLAN. On March 30, 1995, the Board of
Directors of ProNet Inc., a Delaware corporation (the "Company"), declared a
dividend of one preferred share purchase right (a "Right") for each outstanding
share of common stock, par value $.01 per share (the "Common Shares"), of the
Company. The dividend is payable to the stockholders of record on April 10,
1995 (the "Record Date"). As of March 31, 1995, 6,128,131 Common Shares were
issued and outstanding. Each Right entitles the registered holder to purchase
from the Company one one-thousandth of a share of Series A Junior Participating
Preferred Stock, par value $1.00 per share (the "Preferred Shares"), of the
Company, at a price of $105 per one one-thousandth of a Preferred Share (the
"Purchase Price"), subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights Agreement") dated as of
April 5, 1995 between the Company and Chemical Shareholder Services Group, Inc.,
as Rights Agent (the "Rights Agent").
DETACHMENT OF RIGHTS; EXERCISE. Initially, the Rights will attach to all
Common Share certificates representing outstanding shares and no separate Right
Certificate will be distributed. The Rights will separate from the Common
Shares and a Distribution Date will occur upon the earlier of (i) 10 business
days following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired beneficial ownership of
20% or more of the outstanding Voting Shares (as defined in the Rights
Agreement) of the Company, or (ii) 10 business days following the commencement
or announcement of an intention to commence a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person or
group of 20% or more of such outstanding Voting Shares.
Until the Distribution Date (or earlier redemption or expiration of the
Rights) (i) the Rights will be evidenced, with respect to the Common Shares
outstanding on the Record Date, by the certificates representing such Common
Shares with a copy of the Summary of Rights to Purchase Preferred Shares
included as Exhibit 4.4 hereto (the "Summary of Rights") attached thereto,
(ii) the Rights will be transferred with and only with the Common Shares,
(iii) new Common Share certificates issued after the Record Date, upon transfer
or new issuance of the Common Shares, will contain a notation incorporating the
Rights Agreement by reference, and (iv) the surrender for transfer of any
certificates for Common Shares outstanding as of the Record Date, even without
such notation or a copy of the Summary of Rights being attached thereto, will
also constitute the transfer of the Rights associated with the Common Shares
represented by such certificate.
As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights (the "Right Certificates") will be mailed to
holders of record of the Common Shares as of the close of business on the
Distribution Date and such separate Right Certificates alone will thereafter
evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on April 10, 2005 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or the Rights are earlier redeemed or exchanged by
the Company as described below.
If a person or group were to acquire 20% or more of the Voting Shares of
the Company, each Right then outstanding (other than Rights beneficially owned
by the Acquiring Person which would become null and void) would become a right
to buy that number of Common Shares (or under certain circumstances, the
equivalent number of one one-thousandths of a Preferred Share) that at the time
of such acquisition would have a market value of two times the Purchase Price of
the Right.
If the Company were acquired in a merger or other business combination
transaction or more than 50% of its consolidated assets or earning power were
sold, proper provision will be made so that each holder of a Right will
thereafter have the right to receive, upon the exercise thereof at the then
current Purchase Price of the Right, that number of shares of common stock of
the acquiring company which at the time of such transaction would have a market
value of two times the Purchase Price of the Right.
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PREFERRED SHARES. The dividend and liquidation rights, and the non-
redemption feature, of the Preferred Shares are designed so that the value of
one one-thousandth of a Preferred Share purchasable upon exercise of each Right
will approximate the value of one Common Share. The Preferred Shares issuable
upon exercise of the Rights will be non-redeemable and rank junior to all other
series of the Company's preferred stock. Each whole Preferred Share will be
entitled to receive a quarterly preferential dividend in an amount per share
equal to the greater of (i) $1.00 in cash, or (ii) in the aggregate, 1,000 times
the dividend declared on the Common Shares. In the event of liquidation, the
holders of the Preferred Shares will be entitled to receive a preferential
liquidation payment equal to the greater of (i) $1,000 per share, or (ii) in the
aggregate, 1,000 times the payment made on the Common Shares. In the event of
any merger, consolidation or other transaction in which Common Shares are
exchanged for or changed into other stock or securities, cash or other property,
each whole Preferred Share will be entitled to receive 1,000 times the amount
received per Common Share. Each whole Preferred Share shall be entitled to
1,000 votes on all matters submitted to a vote of the stockholders of the
Company, and Preferred Shares shall generally vote together as one class with
the Common Stock and any other capital stock on all matters submitted to a vote
of stockholders of the Company.
The offer and sale of the Preferred Shares issuable upon exercise of the
Rights will be registered with the Securities and Exchange Commission and such
registration will not be effective until the Rights become exercisable.
ANTIDILUTION AND OTHER ADJUSTMENTS. The number of one one-thousandths of a
Preferred Share or other securities or property issuable upon exercise of the
Rights, and the Purchase Price payable, are subject to customary adjustments
from time to time to prevent dilution.
The number of outstanding Rights and the number of one one-thousandths of a
Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
EXCHANGE OPTION. At any time after the acquisition by a person or group of
affiliated or associated persons of beneficial ownership of 20% or more of the
outstanding Voting Shares of the Company and before the acquisition by a person
or group of 50% or more of the outstanding Voting Shares of the Company, the
Board of Directors may, at its option, issue Common Shares in mandatory
redemption of, and in exchange for, all or part of the then outstanding and
exercisable Rights (other than Rights owned by such person or group which would
become null and void) at an exchange ratio of one Common Share (or one one-
thousandth of a Preferred Share) for each two Common Shares for which each Right
is then exercisable, subject to adjustment.
REDEMPTION OF RIGHTS. At any time prior to the first public announcement
that a person or group has become the beneficial owner of 20% or more of the
outstanding Voting Shares, the Board of Directors of the Company may redeem all
but not less than all the then outstanding Rights at a price of $0.01 per Right
(the "Redemption Price"). The redemption of the Rights may be made effective at
such time, on such basis and with such conditions as the Board of Directors in
its sole discretion may establish. Immediately upon the action of the Board of
Directors ordering redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
NO RIGHTS AS STOCKHOLDER. Until a Right is exercised, the holder thereof,
as such, will have no rights as a stockholder of the Company, including, without
limitation, the right to vote or to receive dividends.
AMENDMENT OF RIGHTS. The terms of the Rights may be amended by the Board
of Directors of the Company without the consent of the holders of the Rights,
including an amendment to extend the Final Expiration Date, and, provided a
Distribution Date has not occurred, to extend the period during which the Rights
may be redeemed, except that after the first public announcement that a person
or group has become
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the beneficial owner of 20% or more of the outstanding Voting Shares, no such
amendment may materially and adversely affect the interests of the holders of
the Rights.
The foregoing description of the Rights does not purport to be complete and
is qualified in its entirety by reference to the Rights Agreement, form of
Certificate of Designation of Series A Junior Participating Preferred Stock,
form of Right Certificate, form of the Summary of Rights and the specimen of the
legend to be placed on new Common Share certificates, filed as exhibits hereto
and incorporated by reference herein.
B. AMENDMENT TO BYLAWS.
On March 30, 1995, the Board of Directors of the Company adopted a
resolution amending Article II, Section 3 of the Bylaws of the Company to
provide that thereafter special meetings of stockholders shall be called only at
the direction of the Chief Executive Officer, the President or the Board of
Directors. A copy of such resolution is attached hereto as Exhibit 3.1 and the
restated Bylaws of the registrant incorporating such amendment are attached
hereto as Exhibit 3.2.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
3.1 Resolution adopting amendment to Bylaws of the registrant regarding
the calling of special meetings of stockholders.
3.2 Restated Bylaws of the registrant.
4.1 Rights Agreement, dated as of April 5, 1995, between the Company and
the Rights Agent, specifying the terms of the Rights, which includes the form of
Certificate of Designation of Series A Junior Participating Preferred Stock as
Exhibit A, the form of Right Certificate as Exhibit B and the form of the
Summary of Rights as Exhibit C (incorporated by reference to Exhibit 1 to the
registrant's Registration Statement on Form 8-A dated April 7, 1995).
4.2 Form of Certificate of Designation of Series A Junior Participating
Preferred Stock (included as Exhibit A to the Rights Agreement (Exhibit 4.1
hereto, incorporated by reference to Exhibit 1 to the registrant's Registration
Statement on Form 8-A dated April 7, 1995)) setting forth the terms of the
Series A Junior Participating Preferred Stock, par value $1.00 per share.
4.3 Form of Right Certificate (included as Exhibit B to the Rights
Agreement (Exhibit 4.1 hereto, incorporated by reference to Exhibit 1 to the
registrant's Registration Statement on Form 8-A dated April 7, 1995)). Pursuant
to the Rights Agreement, printed Right Certificates will not be delivered until
as soon as practicable after the Distribution Date.
4.4 Form of Summary of Rights to Purchase Preferred Shares (included as
Exhibit C to Rights Agreement (Exhibit 4.1 hereto, incorporated by reference to
Exhibit 1 to the registrant's Registration Statement on Form 8-A dated April 7,
1995)) which, together with certificates representing the outstanding Common
Shares of the Company, shall represent the Rights prior to the Distribution
Date.
4.5 Specimen of legend to be placed, pursuant to Section 3(d) of the
Rights Agreement, on all new Common Share certificates issued by the Company
after April 10, 1995 and prior to the Distribution Date upon transfer, exchange
or new issuance (incorporated by reference to Exhibit 5 to the registrant's
Registration Statement on Form 8-A dated April 7, 1995).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PRONET INC.
Date: April 19, 1995 By: /s/ Mark A. Solls
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Name: Mark A. Solls
Title: Secretary and General Counsel
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INDEX TO EXHIBITS
Exhibit Page
Number Description Number
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3.1 Resolution adopting amendment to Bylaws of the
registrant regarding the calling of special
meetings of stockholders.
3.2 Restated Bylaws of the registrant.
4.1 Rights Agreement, dated as of April 5, 1995,
between the Company and the Rights Agent,
specifying the terms of the Rights, which includes
the form of Certificate of Designation of Series A
Junior Participating Preferred Stock as Exhibit A,
the form of Right Certificate as Exhibit B and the
form of the Summary of Rights as Exhibit C
(incorporated by reference to Exhibit 1 to the
registrant's Registration Statement on Form 8-A
dated April 7, 1995).
4.2 Form of Certificate of Designation of Series A
Junior Participating Preferred Stock (included as
Exhibit A to the Rights Agreement (Exhibit 4.1
hereto, incorporated by reference to Exhibit 1 to
the registrant's Registration Statement on Form 8-
A dated April 7, 1995)) setting forth the terms of
the Series A Junior Participating Preferred Stock,
par value $1.00 per share.
4.3 Form of Right Certificate (included as Exhibit B
to the Rights Agreement (Exhibit 4.1 hereto,
incorporated by reference to Exhibit 1 to the
registrant's Registration Statement on Form 8-A
dated April 7, 1995)). Pursuant to the Rights
Agreement, printed Right Certificates will not be
delivered until as soon as practicable after the
Distribution Date.
4.4 Form of Summary of Rights to Purchase Preferred
Shares (included as Exhibit C to Rights Agreement
(Exhibit 4.1 hereto, incorporated by reference to
Exhibit 1 to the registrant's Registration
Statement on Form 8-A dated April 7, 1995)) which,
together with certificates representing the
outstanding Common Shares of the Company, shall
represent the Rights prior to the Distribution
Date.
4.5 Specimen of legend to be placed, pursuant to
Section 3(d) of the Rights Agreement, on all new
Common Share certificates issued by the Company
after April 10, 1995 and prior to the Distribution
Date upon transfer, exchange or new issuance
(incorporated by reference to Exhibit 5 to the
registrant's Registration Statement on Form 8-A
dated April 7, 1995).
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CERTIFICATE OF AMENDMENT
OF BYLAWS
PRONET INC.
I, Mark A. Solls, hereby certify that:
I. I am the duly appointed Secretary of ProNet Inc., a Delaware corporation.
II. On March 30, 1995, Section 3 of Article II of the Bylaws of this
corporation was duly amended by the Board of Directors of this corporation
to be and read in its entirety as follows:
"Section 3. SPECIAL MEETING. Special meetings of the stockholders may be
called by the Chief Executive Officer, the President or the Board of Directors."
IN WITNESS WHEREOF, I have executed this Certificate as of the 30th day of
March, 1995.
/s/ Mark A. Solls
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Mark A. Solls, Secretary
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RESTATED BYLAWS OF
PRONET INC.
Effective: April 17, 1995
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INDEX TO BYLAWS OF
PRONET INC.
ARTICLE I
OFFICES . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
MEETINGS OF THE STOCKHOLDERS . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting. . . . . . . . . . . . . . . . . . . . . . . . 1
Section 3. Special Meeting . . . . . . . . . . . . . . . . . . . . . . . 2
Section 4. Notice of Annual or Special Meeting . . . . . . . . . . . . . 2
Section 5. Business at Special Meeting . . . . . . . . . . . . . . . . . 2
Section 6. Quorum of Stockholders. . . . . . . . . . . . . . . . . . . . 2
Section 7. Act of Stockholders' Meeting. . . . . . . . . . . . . . . . . 2
Section 8. Voting of Shares. . . . . . . . . . . . . . . . . . . . . . . 3
Section 9. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 10. Voting List . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 11. Order of Business . . . . . . . . . . . . . . . . . . . . . . 4
Section 12. Notice of Stockholder Business. . . . . . . . . . . . . . . . 4
Section 13. Action by Written Consent Without a Meeting . . . . . . . . . 5
Section 14. Notice of Stockholder Nominees. . . . . . . . . . . . . . . . 6
ARTICLE III
BOARD OF DIRECTORS. . . . . . . . . . . . . . 8
Section 1. Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Chairman of the Board . . . . . . . . . . . . . . . . . . . . 8
Section 3. Number of Directors . . . . . . . . . . . . . . . . . . . . . 8
Section 4. Election and Term . . . . . . . . . . . . . . . . . . . . . . 8
Section 5. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 6. Resignation and Removal . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
MEETINGS OF THE BOARD. . . . . . . . . . . . . 9
Section 1. First Meeting . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2. Regular Meetings. . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Special Meetings. . . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Business at Regular or Special Meeting. . . . . . . . . . . . 10
Section 5. Quorum of Directors . . . . . . . . . . . . . . . . . . . . . 10
Section 6. Act of Directors' Meeting . . . . . . . . . . . . . . . . . . 10
Section 7. Action by Written Consent Without a Meeting . . . . . . . . . 10
Section 8. Compensation of Directors . . . . . . . . . . . . . . . . . . 10
ARTICLE V
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COMMITTEES. . . . . . . . . . . . . . . . 11
ARTICLE VI
NOTICES . . . . . . . . . . . . . . . . 12
Section 1. Methods of Giving Notice. . . . . . . . . . . . . . . . . . . 12
Section 2. Waiver of Notice. . . . . . . . . . . . . . . . . . . . . . . 13
Section 3. Attendance as Waiver. . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VII
DIRECTORS' ACTION WITHOUT A MEETING
BY USE OF CONFERENCE TELEPHONE. . . . . . . . . . . 13
ARTICLE VIII
OFFICERS . . . . . . . . . . . . . . . . 14
Section 1. Executive Officers. . . . . . . . . . . . . . . . . . . . . . 14
Section 2. Election and Qualification. . . . . . . . . . . . . . . . . . 14
Section 3. Division Officers . . . . . . . . . . . . . . . . . . . . . . 14
Section 4. Other Officers and Agents . . . . . . . . . . . . . . . . . . 15
Section 5. Salaries. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Term, Removal and Vacancies . . . . . . . . . . . . . . . . . 15
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . 16
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . 17
Section 11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 12. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . 17
Section 13. Officers' Bond. . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE IX
CERTIFICATES FOR SHARES . . . . . . . . . . . . 18
Section 1. Certificates Representing Shares. . . . . . . . . . . . . . . 18
Section 2. Transfer of Shares. . . . . . . . . . . . . . . . . . . . . . 19
Section 3. Lost, Stolen or Destroyed Certificate . . . . . . . . . . . . 19
Section 4. Record Dates. . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 5. Registered Stockholders . . . . . . . . . . . . . . . . . . . 21
ARTICLE X
GENERAL PROVISIONS. . . . . . . . . . . . . . 21
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2. Reserves. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3. Checks. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5. Seal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE XI
INDEMNIFICATION . . . . . . . . . . . . . . 22
ARTICLE XII
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AMENDMENTS. . . . . . . . . . . . . . . . 23
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<PAGE>
BYLAWS
OF
PRONET INC.
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office shall be located
in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. OTHER OFFICES. The corporation also may 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 as the business of the corporation
may require.
ARTICLE II
MEETINGS OF THE STOCKHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of the stockholders for the
election of directors or for any other proper purpose shall be held in the City
of Dallas, State of Texas, or at such other place within or without the State of
Texas as the Board of Directors may from time to time designate, as stated in
the notice of such meeting or a duly executed waiver of notice thereof.
Section 2. ANNUAL MEETING. An annual meeting of the stockholders shall
be held at 10:00 a.m. on the third Wednesday in May in each year, or as
otherwise specifically provided by resolution of the Board of Directors, or
unless such day is a legal holiday, in which case such meeting shall be held at
the specified time on the first full business day thereafter which is not a
legal holiday. At such meeting the stockholders entitled to vote thereat shall
elect by a plurality vote the successors to the directors whose terms shall
expire that year, and may transact such other business as properly may be
brought before the meeting.
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Section 3. SPECIAL MEETING. Special meetings of the stockholders may
be called by the Chief Executive Officer, the President or the Board of
Directors.
Section 4. NOTICE OF ANNUAL OR SPECIAL MEETING. Written or printed
notice stating the place, day and hour of the meeting and, in case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than ten (10) nor more than sixty (60) days before the date
of the meeting, either personally or by mail, by or at the direction of the
Chairman of the Board, the President, the Secretary, or the officer or person
calling the meeting, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail, addressed to the stockholder at his address as it
appears on the stock transfer books of the corporation, with postage thereon
prepaid.
Section 5. BUSINESS AT SPECIAL MEETING. The business transacted at any
special meeting of the stockholders shall be limited to the purposes stated in
the notice thereof.
Section 6. QUORUM OF STOCKHOLDERS. Unless otherwise provided in the
Certificate of Incorporation, the holders of a majority of the shares entitled
to vote, represented in person or by proxy, shall constitute a quorum at a
meeting of the stockholders, except as otherwise provided by any applicable
statute. If, however, a quorum shall not be present or represented at any
meeting of the stockholders, the stockholders present in person or represented
by proxy 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 notified.
Section 7. ACT OF STOCKHOLDERS' MEETING. The vote of the holders of a
majority of the shares entitled to vote and represented at a meeting at which a
quorum is present shall be
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the act of the stockholders' meeting, unless the vote of a greater number is
required by law or the Certificate of Incorporation.
Section 8. VOTING OF SHARES. Each outstanding share shall be entitled
to one vote on each matter submitted to a vote at a meeting of the stockholders,
except to the extent that the voting rights of the shares of any class are
limited or denied by the Certificate of Incorporation or by a resolution of the
Board of Directors designating a series of preferred stock. At each election
for directors, every stockholder entitled to vote at such election shall have
the right to vote, in person or by proxy, the number of shares owned by him for
as may persons as there are directors to be elected and for whose election he
has the right to vote.
Section 9. PROXIES. At any meeting of the stockholders, each
stockholder having the right to vote shall be entitled to vote either in person
or by proxy executed in writing by the stockholder or by his duly authorized
attorney-in-fact. Any such proxy shall be delivered to the secretary of such
meeting at or prior to the time designated by the chairman of the meeting or in
the order of business for so delivering such proxies. No proxy shall be voted
or acted upon after three (3) years from its date unless otherwise provided in
the proxy. Each proxy shall be revocable unless expressly provided therein to
be irrevocable and unless otherwise made irrevocable by law. Except with
respect to the election of directors, and unless required by statute or
determined by the chairman of the meeting to be advisable, the vote on any
question need not be by ballot. On a vote by ballot, each ballot shall be
signed by the stockholder voting or by such stockholder's proxy, if there be
such proxy.
Section 10. VOTING LIST. The officer or agent having charge of the
stock transfer books for shares of the corporation shall make, at least ten (10)
days before each meeting of the stockholders, a complete list of the
stockholders entitled to vote at such meeting or any adjournment thereof,
arranged in alphabetical order, with the address of and number of shares
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held by each, which list shall be maintained, for a period of ten (10) days
prior to such 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, if not
so specified, at the place where the meeting is to be held, and shall be subject
to inspection by any stockholder at any time during the usual business hours.
Such list shall also be produced and kept open at the time and place of the
meeting and shall be subject to the inspection of any stockholder during the
whole time of the meeting. The 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 such meeting of stockholders.
Section 11. ORDER OF BUSINESS. The order of business of each meeting of
the stockholders of the corporation shall be determined by the chairman of the
meeting. The chairman of the meeting shall have the right and authority to
prescribe such rules, regulations, and procedures and to do all such acts and
things as necessary or desirable for the conduct of the meeting, including,
without limitations, the establishment of procedures for the dismissal of
business not properly presented, the maintenance of order and safety,
limitations on the time allotted to questions or comments on the affairs of the
corporation, restrictions on entry to such meetings after the time prescribed
for commencement thereof and opening and closing of the voting polls.
Section 12. NOTICE OF STOCKHOLDER BUSINESS. At an annual or special
meeting of the stockholders, 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 stockholder of the corporation entitled to vote at such
annual or special meeting who complies with the notice procedures set forth in
this Section 12. For business to be properly brought before an annual or
special meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the corporation. To be timely, a
stockholder's notice must be
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delivered to or mailed and received at the principal executive offices of the
corporation, not less than sixty (60) days prior to the meeting; provided,
however, that in the event that less than forty (40) days' notice or prior
public disclosure of the date of the meeting is given or made to the
stockholders, notice by the stockholder 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 or special meeting was mailed or such public
disclosure was made. Such stockholder's notice to the Secretary shall set forth
as to each matter the stockholder proposes to bring before the annual or special
meeting (a) a brief description of the business desired to be brought before the
annual or special meeting and the reasons for conducting such business at the
annual or special meeting; (b) the name and address, as they appear on the
corporation's books, of such stockholder; (c) the class and number of shares of
the corporation which are beneficially owned by such stockholder; and (d) any
material interest of such stockholder in such business. Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at an
annual or special meeting except in accordance with the procedures set forth in
this Section 12. The chairman of an annual or special meeting shall, if the
facts warrant, determine that business was not properly brought before the
meeting in accordance with the provisions of this Section 12, 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. Notwithstanding
the foregoing provisions of this Section 12, a stockholder seeking to have a
proposal included in the corporation's proxy statement shall comply with the
requirements of Regulation 14A under the Securities Exchange Act of 1934, as
amended (including, but not limited to, Rule 14a-8 or its successor provision).
Section 13. ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action
required or permitted to be taken at any annual or special meeting of
stockholders may be taken without
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a meeting, without prior notice and without a vote, if a written consent or
consents thereto setting forth such action shall be signed by the holders of
record of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or to take such action at a meeting at
which all shares entitled to vote thereon were present and voted, and shall be
delivered to the corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
Every written consent shall bear the date of signature of each stockholder
who signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty days of the earliest
dated consent delivered to the corporation, written consents signed by a
sufficient number of holders to take action are delivered to the corporation at
such places required by this Section.
Prompt notice of the taking of such action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented thereto in writing.
Section 14. NOTICE OF STOCKHOLDER NOMINEES. Only persons who are
nominated in accordance with the procedures set forth in these Bylaws shall be
eligible for election as directors. Nominations of persons for election to the
Board of Directors of the corporation may be made at a meeting of stockholders
(a) by or at the direction of the Board of Directors or (b) by any stockholder
of the corporation entitled to vote for the election of directors at the meeting
who complies with the notice procedures set forth in this Section 14.
Nominations by stockholders shall be made pursuant to timely notice in writing
to the Secretary of the corporation. To be timely, a stockholder's notice shall
be delivered to or mailed and received
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at the principal executive offices of the corporation not less than thirty (30)
days nor more than sixty (60) days prior to the meeting; provided, however, that
in the event that less than forty (40) days' notice or prior public disclosure
of the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or re-election as a director, all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (including
such person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected); and (b) as to the stockholder giving
the notice (i) the name and address, as they appear on the corporation's books,
of such stockholder and (ii) the class and number of shares of the corporation
which are beneficially owned by such stockholder. At the request of the Board
of Directors, any person nominated by the Board of Directors for election as a
director shall furnish to the Secretary of the corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set forth in
these Bylaws. The chairman of the meeting shall, if the facts warrant,
determine that a nomination was not made in accordance with the procedures
prescribed by these Bylaws, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
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ARTICLE III
BOARD OF DIRECTORS
Section 1. POWERS. The business and affairs of the corporation shall
be managed by or under the direction of its Board of Directors, which may
exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
Bylaws directed or required to be exercised and done by the stockholders. The
Board of Directors may choose from among their number a Chairman of the Board
with such duties as may be determined by the Board.
Section 2. CHAIRMAN OF THE BOARD. The Chairman of the Board, if any,
shall preside at all meetings of the stockholders and of the Board of Directors
and shall have such other powers and duties as usually pertain to such office or
as may be prescribed by the Board of Directors.
Section 3. NUMBER OF DIRECTORS. The number of directors of the
corporation constituting the Board of Directors shall be determined from time to
time in accordance with these Bylaws by resolution of the Board of Directors or
of the stockholders.
Section 4. ELECTION AND TERM. The directors shall be elected at the
annual meeting of the stockholders, except as herein provided, and shall be
elected by a plurality of the votes of the shares present in person or
represented by proxy at such meeting which are entitled to vote on the election
of directors. Each director of the corporation shall hold office until his
successor is elected and qualified. Directors need not be residents of the
State of Delaware or stockholders of the corporation.
Section 5. VACANCIES. Any vacancy occurring in the Board of Directors
may be filled by the affirmative vote of a majority of the remaining directors
though less than a quorum of the Board of Directors. A director elected to fill
a vacancy shall be elected for the unexpired
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term of his predecessor in office. Any directorship to be filled by reason of
an increase in the number of directors may be filled by the affirmative vote of
a majority of the directors. A director elected to fill a newly created
directorship shall hold office until his successor is elected and qualified.
Section 6. RESIGNATION AND REMOVAL. Any director may resign at any
time upon given written notice to the corporation. At any meeting of
stockholders called expressly for the purpose of removing a director or
directors, any director or the entire Board of Directors may be removed, with or
without cause, by a vote of the holders of a majority of the shares then
entitled to vote at an election of directors.
ARTICLE IV
MEETINGS OF THE BOARD
Section 1. FIRST MEETING. The first meeting of each newly elected
Board of Directors shall be held immediately following the annual meeting of the
stockholders and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, provided a quorum
shall be present.
Section 2. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held with or without notice at such time and at such place
either within or without the State of Delaware as from time to time shall be
prescribed by resolution of the Board of Directors.
Section 3. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President, and shall
be called by the Chairman of the Board, the President or the Secretary on the
written request of two directors. Written notice of special meeting of the
Board of Directors shall be given to each director at least three (3) days
before the date of the meeting.
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Section 4. BUSINESS AT REGULAR OR SPECIAL MEETING. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Board of Directors need be specified in the notice or waiver of notice of
such meeting.
Section 5. QUORUM OF DIRECTORS. A majority of the Board of Directors
shall constitute a quorum for the transaction of business, unless a greater
number is required by law or the Certificate of Incorporation. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 6. ACT OF DIRECTORS' MEETING. The act of a majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors, unless the act of a greater number is required by law or
the Certificate of Incorporation.
Section 7. ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action
required or permitted to be taken at a meeting of the Board of Directors or any
executive committee under the applicable provisions of the statutes, the
Certificate of Incorporation or these Bylaws may be taken without a meeting if a
consent in writing setting forth the action so taken is signed by all members of
the Board of Directors or of the executive committee, as the case may be. Such
consent shall have the same force and affect as a unanimous vote of the Board of
Directors or of the executive committee, as the case may be.
Section 8. COMPENSATION OF DIRECTORS. As specifically prescribed from
time to time by resolution of the Board of Directors, the directors of the
corporation may be paid their expenses of attendance at each meeting of the
Board and may be paid reasonable compensation for their services as directors.
This provision shall not 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 their services in such
capacities.
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ARTICLE V
COMMITTEES
The Board of Directors, by resolution adopted by a majority of the full
Board of Directors, may designate from among its members an executive committee
and one or more other committees, each of which, to the extent provided in such
resolution or in the Certificate of Incorporation or in these Bylaws, shall have
and may exercise all the authority of the Board of Directors, except that no
such committee shall have the authority of the Board of Directors in reference
to amending the Certificate of Incorporation, approving a plan of merger or
consolidation, recommending to the stockholders the sale, lease, or exchange of
all or substantially all of the property and assets of the corporation otherwise
than in the usual and regular course of its business, recommending to the
stockholders a voluntary dissolution of the corporation or a revocation thereof,
amending, altering, or repealing the Bylaws of the corporation or adopting new
Bylaws for the corporation, filling vacancies in or removing members of the
Board of Directors or any such committee, fixing the compensation of any member
of such committee, or altering or repealing any resolution of the Board of
Directors which by its terms provides that it shall not be so amendable or
repealable. Unless such resolution, the Certificate of Incorporation or these
Bylaws so provides, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of shares of the corporation.
Vacancies in the membership of any such committee shall be filled by resolution
adopted by the majority of the Board of Directors at a regular or special
meeting of the Board. Any action required or permitted to be taken at a meeting
of any such committee may be taken without a meeting if a consent in writing,
setting forth the action so taken, is signed by all the members of such
committee, such consent having the same force and effect as a unanimous vote at
a meeting. The designation of any such committee and the delegation thereto of
authority
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shall not operate to relieve the Board of Directors, or any member thereof, of
any responsibility imposed upon it or him by law.
Any executive committee designated by the Board of Directors shall consist
of the President and such number (not less than two (2)) of other directors as
the Board may from time to time determine by resolution adopted by the majority
of the Board of Directors, one of the members of which committee shall be
designated the chairman thereof by the Board of Directors. The executive
committee may make rules for the conduct of its business, not inconsistent with
this Article V, as it shall from time to time deem necessary and shall keep
regular minutes of its proceedings and report the same to the Board when
required. A majority of the members of the executive committee shall constitute
a quorum for the transaction of business. If a quorum is not present at a
meeting, the members present may adjourn the meeting until a quorum is present.
The act of a majority of the members present at any meeting at which a quorum is
present shall be the act of the executive committee, except as otherwise
specifically provided by statute, the Certificate of Incorporation or the Bylaws
of the corporation. Any member of the executive committee may be removed by the
Board of Directors by the affirmative vote of a majority of the Board, whenever
in its judgment the best interests of the corporation will be served thereby.
ARTICLE VI
NOTICES
Section 1. METHODS OF GIVING NOTICE. Whenever any notice is required
to be given to any stockholder or director under the provisions of any statute,
the Certificate of Incorporation or these Bylaws, it shall be given in writing
and delivered personally or mailed to such stockholder or director at such
address as appears on the books of the corporation, and such notice shall be
deemed to be given at the time the same shall be deposited in the United
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States mail with sufficient postage thereon prepaid. Notice to directors may
also be given by telegram, telex, telecopy or similar means of visual data
transmission, and notice given by any of such means shall be deemed to be
delivered when transmitted for delivery to the recipient.
Section 2. WAIVER OF NOTICE. Whenever any notice is required to be
given to any stockholder or director under the provisions of any statute, the
Certificate of Incorporation or 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 to the giving of such notice.
Section 3. ATTENDANCE AS WAIVER. Attendance of 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 to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
ARTICLE VII
DIRECTORS' ACTION WITHOUT A MEETING
BY USE OF CONFERENCE TELEPHONE
Subject to the provisions required or permitted for notice of meetings,
unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
members of the Board of Directors or members of any committee designated by such
Board may participate in and hold a meeting of such Board or committee by
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in
such a meeting shall constitute presence in person at such meeting, except where
a person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
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ARTICLE VIII
OFFICERS
Section 1. EXECUTIVE OFFICERS. The officers of the corporation shall
consist of a President (who shall be the Chief Executive Officer unless the
Chairman of the Board, if any, is so designated by the Board of Directors), one
or more Vice Presidents (with such supplemental designation to indicate
seniority or scope of duties as the Board of Directors may determine from time
to time), a Secretary, a Chief Financial Officer, and a Treasurer, each of whom
shall be elected by the Board of Directors as provided in Section 2 of this
Article; provided that any of such offices except President, Secretary and
Treasurer may be allowed to become vacant by failure of the Board of Directors
to fill the office. Any two or more offices may be held by the same person.
Section 2. ELECTION AND QUALIFICATION. The Board of Directors, at its
first meeting held immediately after each annual meeting of stockholders, shall
choose (subject to the provisions of Section 1 of this Article) a President, one
or more Vice Presidents, a Secretary, a Chief Financial Officer and a Treasurer,
none of whom except the President need be a member of the Board.
Section 3. DIVISION OFFICERS. The Board of Directors may from time to
time establish one or more divisions of the corporation and assign to such
division responsibilities for such of the corporation's business, operations and
affairs as the Board may designate. The Board of Directors may appoint or
authorize an officer of the corporation to appoint in writing officers of a
division. Unless elected or appointed an officer of the corporation by the
Board of Directors or pursuant to authority granted by the Board, an officer of
a division shall not as such be an officer of the corporation, except that he
shall be an officer of the corporation for the purposes of executing and
delivering documents on behalf of the corporation or for other
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specific purposes, if and to the extent that he may be authorized to do so by
the Board of Directors. Unless otherwise provided in the writing appointing an
officer of a division, such officer shall hold office until his successor is
appointed and qualified. Any officer of a division may be removed with or
without cause by the Board of Directors or by the officer, if any, of the
corporation then authorized by the Board of Directors to appoint such officer of
a division. The Board of Directors may prescribe or authorize an officer of the
corporation or an officer of a division to prescribe in writing the duties and
powers and authority of officers of divisions and may authorize an officer of
the corporation or an officer of a division to determine the compensation for
officers of divisions.
Section 4. OTHER OFFICERS AND AGENTS. The Board of Directors may elect
or appoint such other officers, assistant officers and agents as the Board may
deem necessary, who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time by
the Board.
Section 5. SALARIES. Subject to the provisions of Section 3 of this
Article, the compensation of all officers and agents of the corporation shall be
determined by the Board of Directors.
Section 6. TERM, REMOVAL AND VACANCIES. Each officer of the
corporation shall hold office until his successor is chosen and qualified. Any
officer may resign at any time upon giving written notice to the corporation.
Any officer or agent or member of the executive committee elected or appointed
by the Board of Directors may be removed by the Board of Directors whenever in
its judgment the best interests of the corporation will be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed. Election or appointment of an officer or agent shall not of
itself create contract rights. Any vacancy occurring in any office of the
corporation by death, resignation, removal
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or otherwise shall be filled (subject to the provisions of Sections 1 and 3 of
this Article) by the Board of Directors.
Section 7. PRESIDENT. The President shall be the Chief Executive
Officer (unless the Chairman of the Board, if any, is so designated by the Board
of Directors) and shall have general powers of oversight, supervision and
management of the business and affairs of the corporation, and shall see that
all orders and resolutions of the Board of Directors are carried into effect.
The President shall have such other powers and duties as usually pertain to such
office or as may be prescribed by as Board of Directors.
Section 8. VICE PRESIDENTS. Unless otherwise determined by the Board
of Directors, the Vice Presidents, in the order of their seniority as such
seniority may from time to time be designated by the Board of Directors, shall
perform the duties and exercise the powers of the President in the absence or
disability of the President. They shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
Section 9. SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders, and shall record all
the proceedings of the meetings of the corporation and of the Board of Directors
in books to be kept for that purpose, and shall perform like duties for the
standing committees when required. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors. He shall keep in safe custody the seal of the
corporation, and, when authorized by the Board of Directors, affix the same to
any instrument requiring it. When so affixed, such seal shall be attested by
his signature or by the signature of the Treasurer or an Assistant Secretary.
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Section 10. ASSISTANT SECRETARIES. Unless otherwise determined by the
Board of Directors, the Assistant Secretaries, in the order of their seniority
as such seniority may from time to time be designated by the Board of Directors,
shall perform the duties and exercise the powers of the Secretary in the absence
or disability of the Secretary. They shall perform such other duties and have
such other powers as the Board of Directors may from time to time prescribe.
Section 11. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities, and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation, and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the Board of
Directors. 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
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
Section 12. ASSISTANT TREASURER. Unless otherwise determined by the
Board of Directors, the Assistant Treasurer shall perform the duties and
exercise the powers of the Treasurer in the absence or disability of the
Treasurer. He shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
Section 13. OFFICERS' BOND. If required by the Board of Directors, any
officer so required shall give the corporation a bond (which shall be renewed as
the Board may require) 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 any and all
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books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the corporation.
ARTICLE IX
CERTIFICATES FOR SHARES
Section 1. CERTIFICATES REPRESENTING SHARES. The corporation shall
deliver certificates representing all shares to which stockholders are entitled.
Such certificates shall be numbered and shall be entered in the books of the
corporation as they are issued, and shall be signed by the President or a Vice
President, and the Secretary or an Assistant Secretary of the corporation, and
may be sealed with the seal of the corporation or a facsimile thereof. The
signatures of the President or Vice President, Secretary or Assistant Secretary,
upon a certificate may be facsimiles, if the certificate is countersigned by a
transfer agent or registered by a registrar, either of which is other than the
corporation itself or an employee of the corporation. In case any officer who
has signed or whose facsimile signature has been placed upon such certificate
shall have ceased to be such officer before such certificate is issued, it may
be issued by the corporation with the same effect as if he were such officer at
the date of its issuance. If the corporation is authorized to issue shares of
more than one class, there shall be set forth upon the face or back of the
certificate a statement that the corporation will furnish to any stockholder
upon request and without charge, a full statement of all of the powers,
designations, preferences, limitations and relative rights of the shares of each
class authorized to be issued and the qualifications, limitations or
restrictions of such preferences and/or rights and, if the corporation is
authorized to issue any preferred or special class in series, the variations in
the relative rights and preferences between the shares of each such series so
far as the same have been fixed and determined and the authority of the Board of
Directors to fix and determine the relative rights and preferences of subsequent
series. Each certificate representing shares shall
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state upon the face thereof that the corporation is organized under the laws of
the State of Delaware, the name of the person to whom issued, the number and the
class and the designation of the series, if any, which such certificate
represents and the par value of each share represented by such certificate or a
statement that the shares are without par value. No certificate shall be issued
for any share until the consideration therefor has been fully paid.
Section 2. TRANSFER OF SHARES. Subject to the provisions of Section 5
of this Article IX, upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction upon its books.
Section 3. LOST, STOLEN OR DESTROYED CERTIFICATE. The Board of
Directors, the President, or any officer or officers authorized by the Board of
Directors 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 that fact
by the person claiming the certificate to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors, the President, or such officer or officers, in their discretion and
as a condition precedent to the issuance thereof, may require the owner of such
lost, stolen or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require and/or
to give the corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
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Section 4. RECORD DATES. In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, 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 record date shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
In order that the corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, 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
the Delaware General Corporation 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 an officer or agent of the
corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery
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made to the corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
the Delaware General Corporation 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 day on which the Board of
Directors adopts the resolution taking such prior action.
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 the stockholders entitled to exercise any rights in respect of any age,
conversion or exchange of stock, or for the purpose of any other lawful action,
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 adapted,
and which record date shall be not more than sixty (60) days prior to such
action. 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 5. REGISTERED STOCKHOLDERS. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and shall not
be bound to recognize any equitable or other claim to or interest in such share
or shares on the part of any other person, whether or not it shall have express
or other notice thereof, except as otherwise provided by the laws of the State
of Delaware.
ARTICLE X
GENERAL PROVISIONS
Section 1. DIVIDENDS. The Board of Directors from time to time may
declare, and the corporation may pay, dividends on its outstanding shares
in cash, property, or its own shares
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pursuant to law and subject to the provisions of the Certificate of In-
corporation and these Bylaws.
Section 2. RESERVES. The Board of Directors may by resolution create a
reserve or reserves out of earned surplus for any proper purpose or purposes,
and may abolish any such reserve in the same manner.
Section 3. CHECKS. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors from time to time may designate.
Section 4. FISCAL YEAR. The fiscal year of the corporation shall begin
on January 1 and end on December 31 of each year.
Section 5. SEAL. The corporate seal shall have inscribed thereon the
name of the corporation and may be used by causing it or a facsimile thereof to
be impressed or affixed or in any other manner reproduced.
ARTICLE XI
INDEMNIFICATION
The corporation shall indemnify each person required to be indemnified by
it pursuant to the Certificate of Incorporation to the extent and in the manner
provided by (1) the Certificate of Incorporation, (2) any particular
indemnification or similar agreement between the corporation and such person,
and (3) any other arrangement approved by the Board of Directors or
stockholders. To the extent permitted by applicable law, the corporation shall
also indemnity such other persons designated by the Board of Directors to the
extent and in the manner provided by (1) any particular indemnification or
similar agreement between the corporation and any one or more of such persons
and (2) any other arrangement approved by the Board of Directors or
stockholders.
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In addition to or as an alternative to such indemnity, the corporation may
make arrangements (including, without limitation, the purchase and maintenance
of insurance) on behalf of any person required to be indemnified by it pursuant
to the Certificate of Incorporation (or any person designated by the Board of
Directors or stockholders) to compensate such person in respect of any liability
or potential liability (and expenses in respect thereof) to the extent and in
the manner provided by (1) the Certificate of Incorporation, (2) any particular
indemnification or similar agreement between the corporation and such person,
and (3) any other arrangement approved by the Board of Directors or
stockholders.
ARTICLE XII
AMENDMENTS
These Bylaws may be altered, amended, or repealed or new Bylaws may be
adopted by the affirmative vote of a majority of the Board of Directors at any
regular or special meeting of the Board, subject to repeal or change at any
regular or special meeting of stockholders at which a quorum is present or
represented by the affirmative vote of not less than a majority of the shares
entitled to vote at such meeting, voting together as a single class, and present
or represented thereat, provided notice of the proposed repeal or change is
contained in the notice of such meeting of stockholders.
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