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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
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CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
SEPTEMBER 16, 1996 0-16132
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Date of Report (Date of earliest event reported) Commission File Number
CELGENE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 22-2711928
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(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
7 POWDER HORN DRIVE
WARREN, NEW JERSEY 07059
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(Address of Principal Executive Offices) (Zip Code)
(908) 271-1001
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(Registrant's telephone number, including area code)
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ITEM 5. OTHER EVENTS.
Adoption of Rights Plan
On September 16, 1996, the Board of Directors of Celgene Corporation
(the "Corporation") declared a dividend distribution of one right (a "Right") to
purchase one one-tenth of a share of the Common Stock, $.01 par value, of the
Corporation (the "Common Shares") for each outstanding share of Common Stock,
payable to the stockholders of record on September 26, 1996 (the "Record Date").
The Board of Directors also authorized and directed the issuance of one Right
with respect to each Common Share issued thereafter until the Distribution Date
(as defined below). Except as set forth below, each Right, when it becomes
exercisable, entitles the registered holder to purchase from the Corporation one
one-tenth of a Common Share at a price of $100.00 per whole Common Share (the
"Purchase Price"), subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights Agreement") between the
Corporation and American Stock Transfer & Trust Company, as Rights Agent (the
"Rights Agent"), dated as of September 16, 1996.
Initially, the Rights will be attached to all certificates representing
Common Shares then outstanding, and no separate Right Certificates will be
distributed. Subject to certain exceptions, the Rights will separate from the
Common Shares upon the earliest to occur of (i) a person or group of affiliated
or associated persons having acquired beneficial ownership of 15% or more of the
outstanding Common Shares (except pursuant to a Permitted Offer, as defined); or
(ii) 10 days (or such later date as the Board of Directors may determine)
following the commencement or, announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in a person or
group of affiliated or associated persons becoming an Acquiring Person (as
hereinafter defined) (the earliest of such dates being called the
"Distribution Date"). A person or group whose acquisition of Common Shares
causes a Distribution Date pursuant to clause (i) above is an "Acquiring
Person." The date that a person or group becomes an Acquiring Person is the
"Shares Acquisition Date." Notwithstanding the foregoing, if the Board
determines in good faith that a person or group crossed the 15 percent threshold
inadvertently, the rights will not be triggered if such person or group divests
as promptly as practicable a sufficient number of Common Shares to reduce its
holding to below the 15 percent threshold. Furthermore, a person who acquires
Common Shares pursuant to a tender or exchange offer which is for all
outstanding Common Shares at a price and on terms which the Board of Directors
determines (prior to acquisition) to be adequate and in the best interests of
the Corporation and its stockholders (other than such person, its affiliates and
associates) (a "Permitted Offer") will not be deemed to be an Acquiring Person
and such person's ownership will not constitute a Distribution Date.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Shares. Until the
Distribution Date (or earlier redemption or expiration of the Rights), Common
Share certificates issued after the Record Date upon the transfer or new
issuance of Common Shares will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates for
Common Shares outstanding as of the Record Date, even without such notation or a
copy of this Summary of Rights being attached thereto, will also constitute the
transfer of the Rights associated with the Common Shares
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represented by such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Common Shares as of
the close of business on the Distribution Date (and to each initial record
holder of certain Common Shares issued after the Distribution Date), and such
separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date, and will
expire at the close of business on September 15, 2006, unless earlier redeemed
by the Corporation as described below.
In the event that any person becomes an Acquiring Person, each holder of
Rights (other than Rights that have become void as described below) will
thereafter have the right (the "Flip-In Right") to receive, upon exercise of
such Rights, the number of Common Shares (or, in certain circumstances, other
securities of the Corporation) having a value (immediately prior to such
triggering event) equal to two times the aggregate exercise price of such
Rights.
In the event that, at any time following the Shares Acquisition Date,
(i) the corporation is acquired in a merger or other business combination
transaction in which the holders of all of the outstanding Common Shares
immediately prior to the consummation of the transaction are not the holders of
all of the surviving corporation's voting power, or (ii) more than 50% of the
assets or earning power of the Corporation and its majority-owned subsidiaries
(taken as a whole) are sold or transferred, then each holder of Rights (except
Rights which previously have been voided as set forth above) shall thereafter
have the right (the "Flip-Over Right") to receive, upon exercise of such Rights,
common shares of the acquiring party having a value equal to two times the
aggregate exercise price of the Rights; provided, however, that the Flip-Over
Right shall not apply to any transaction described in clause (i) if (x) such
transaction is with a person or persons (or a wholly owned subsidiary of any
such person or persons) that acquired Common Shares pursuant to a Permitted
offer and (y) the price and form of consideration offered in such transaction is
the same as that paid to all holders of Common Shares whose shares were
purchased pursuant to the Permitted Offer. The holder of a Right will continue
to have the Flip-Over Right whether or not such holder exercises or surrenders
the Flip-In Right.
Notwithstanding the foregoing, following the occurrence of a triggering
event described above, all Rights that are or (under certain circumstances
specified in the Rights Agreement) were beneficially owned by any Acquiring
Person or any affiliate or associate thereof will be null and void.
The Purchase Price payable, and the number of Common Shares or other
securities issuable, upon exercise of the Rights are subject to adjustment from
time to time to prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Common Shares, (ii) upon
the grant to holders of the Common Shares of certain options, rights or warrants
to subscribe for or purchase Common Shares or equivalent securities of the
Corporation at a price, or securities convertible into Common Shares or
equivalent securities of the Corporation with a conversion price, less than the
current market price of the Common Shares, or (iii) upon the distribution to
holders of the Common Shares of evidences of indebtedness or assets (excluding
regular quarterly cash dividends, if any) or of subscription rights or warrants
(other than those referred to above).
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With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Common Shares will be issued and, in lieu
thereof, an adjustment in cash will be made based on the current market value of
a whole Right on the last trading day prior to the date of exercise.
At any time prior to the earlier to occur of (i) a person becoming an
Acquiring Person or (ii) the expiration of the Rights, the Corporation may
redeem all but not less than all of the Rights at a price of $ .01 per Right
(the "Redemption Price") which redemption shall be effective at such time, on
such basis and with such conditions as the Board of Directors may establish in
its sole discretion. The Corporation may, at its option, pay the Redemption
Price in Common Shares.
All of the Provisions of the Rights Agreement may be amended by the
Board of Directors prior to the Distribution Date. From and after the
Distribution Date, the provisions of the Rights Agreement may be amended by the
Board in order to cure any ambiguity, defect or inconsistency, to make changes
which do not adversely affect the interests of holders of Rights (excluding the
interests of any Acquiring Person), or to shorten or lengthen, subject to
certain limitations, any time period under the Rights Agreement.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Corporation, including, without limitation, the
right to vote or to receive dividends. While the distribution of the Rights will
not be taxable to stockholders of the Corporation, stockholders may, depending
upon the circumstances, recognize taxable income should the Rights become
exercisable or upon the occurrence of certain events thereafter.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Board of Directors except pursuant to a Permitted
Offer. The Rights should not interfere with any merger or other business
combination approved by the Board of Directors, as the Rights may be redeemed by
the Corporation at $.01 per Right prior to the time that a person or group has
acquired beneficial ownership of 15% or more of the Common Shares.
The Rights Agreement, dated as of September 16, 1996, between the
Corporation and American Stock Transfer & Trust Company, as Rights Agent,
specifying the terms of the Rights is attached hereto as an exhibit and is
incorporated herein by reference. The foregoing description of the Rights
Agreement is qualified in its entirety by reference to such exhibit.
Amendments to Bylaws
In addition, the Board of Directors of the Company has adopted certain
amendments to the Company's Bylaws intended to strengthen the Board's position
in the event of a hostile takeover attempt. The amendments to the Bylaws have
the following effects:
1. Providing that (i) only persons who are nominated in accordance with
the procedures set forth in the Bylaws shall be eligible for election as
directors of the Corporation, except as may be otherwise provided in the Bylaws,
and that (i) only business brought before the
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annual meeting by the Board of Directors or by a stockholder who complies with
the procedures set forth in the Bylaws may be transacted at an annual meeting of
stockholders. In addition to any other applicable requirements, for a nomination
to be made by a stockholder, or proposals of new business to be transacted at
the annual meeting to be made by a stockholder, such stockholder must have given
timely notice thereof in proper written form to the Secretary of the
Corporation. For notice of nominations of directors or proposals of new business
at stockholder meetings to be timely, a stockholder's notice to the Secretary
must be delivered to or mailed and received at the principal executive offices
of the Corporation not less than sixty (60) days nor more than ninety (90) days
prior to the date of the annual meeting; provided, however, that in the event
that less than seventy (70) days' notice or prior public disclosure of the date
of the annual meeting is given or made to stockholders, notice by the
stockholder (in order to be timely) must be so received not later than the close
of business on the tenth (10th) day following the day on which such notice of
the date of the annual meeting was mailed or such public disclosure of the date
of the annual meeting was made, whichever first occurs. To be in proper written
form, a stockholder's notice to the Secretary must set forth (a) as to each
person whom the stockholder proposes to nominate for election as a director (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class or series and
number of shares of capital stock of the Corporation which are owned
beneficially or of record by the person and (iv) any other information relating
to the person that would be required to be disclosed in a proxy statement or
other filing required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations promulgated
thereunder; and (b) as to the stockholder giving the notice (i) the name and
record address of such stockholder, (ii) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or of
record by such stockholder, (iii) a description of all arrangements or
understandings between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be made by such stockholder, (iv) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to nominate the
persons named in his notice and (v) any other information relating to such
stockholder that would be required to be disclosed in a proxy statement or other
filing required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Exchange Act and the rules
and regulations promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a nominee and to
serve as a director if elected.
2. Eliminating the ability of persons other than members of the Board of
Directors to call special meetings of the stockholders of the Company.
3. Establishing a procedure for the Board of Directors to fix the record
date whenever stockholder action by written consent is undertaken. The provision
of the Bylaws provides that in order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which date shall not be more than ten (10) days
after the date upon which the resolution fixing the record date is adopted by
the Board of Directors. Any stockholder of record seeking to have the
stockholders authorize or take corporate action by
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written consent shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but in
all events within ten (10) days after the date on which such a request is
received, adopt a resolution fixing the record date. If no record date has been
fixed by the Board of Directors within ten (10) days of the date on which such a
request is received, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is required by applicable law, shall be the first date
on which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business or an officer or agent of
the Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded, to the attention of the Secretary of the Corporation.
This provision of the Bylaws also provides for a procedure by which the
Secretary of the Corporation shall conduct such reasonable investigation as he
deems necessary or appropriate for the purpose of ascertaining the validity of
written consents submitted by stockholders and all matters incident thereto.
4. Requiring a 2/3 vote of stockholders to amend Sections 1.2, 1.8 and
2.2 of the Company's Bylaws.
The Company's Bylaws, as amended and restated as of September 16, 1996
are attached hereto as an exhibit and are incorporated herein by reference. The
foregoing description of the Bylaws is qualified in its entirety by reference to
such exhibit.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
1. Rights Agreement, dated as of September 16, 1996, between
Celgene Corporation and American Stock Transfer & Trust
Company (incorporated by reference to the Company's
Registration Statement on Form 8-A, filed on September 16,
1996.
2. Celgene Corporation Bylaws, as amended and restated as of
September 16, 1996.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: September 16, 1996 CELGENE CORPORATION
By: /s/ John W. Jackson
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Name: John W. Jackson
Title: Chairman of the Board and
Chief Executive Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description Page
<C> <S> <C>
1. Rights Agreement, dated as of September 16, 1996, between Celgene
Corporation and American Stock Transfer & Trust Company (incorporated by
reference to the Company's Registration Statement on Form 8-A, filed on
September 16, 1996).
2. Celgene Corporation Bylaws, as amended and restated as of September 16,
1996.
</TABLE>
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EXHIBIT 2
BY-LAWS
of
CELGENE CORPORATION
As Amended and Restated As of September 16, 1996
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CELGENE CORPORATION
A Delaware Corporation
BY-LAWS
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ARTICLE I
STOCKHOLDERS
Section 1.1 Annual Meeting.
An annual meeting of stockholders for the purpose of electing
directors and of transacting such other business as may come before it shall be
held each year at such date, time, and place, either within or without the State
of Delaware, as may be specified by the Board of Directors.
Section 1.2 Special Meetings.
Special meetings of stockholders for any purpose or purposes may
be held at any time upon call of the Chairman of the Board, if any, the Chief
Executive Officer, the President, the Secretary, or a majority of the Board of
Directors, at such time and place either within or without the State of Delaware
as may be stated in the notice.
Section 1.3 Notice of Meetings.
Written notice of stockholders meetings, stating the place, date,
and hour thereof, and, in the case of a special meeting, the purpose or purposes
for which the meeting is called, shall be given by the Chairman of the Board, if
any, the Chief Executive Officer, the President, any Vice President, the
Secretary, or an Assistant Secretary, to each stockholder entitled to vote
thereat at least ten days but not more than sixty days before the date of the
meeting, unless a different period is prescribed by law.
Section 1.4 Quorum.
Except as otherwise provided by law or in the Certificate of
Incorporation or these By-Laws, at any meeting of stockholders, the holders of a
majority of the outstanding shares of each class of stock entitled to vote at
the meeting shall be present or represented by proxy in order to constitute a
quorum for the transaction of any business. In the absence of a quorum, a
majority in interest of the stockholders present or the chairman of the meeting
may adjourn the meeting from time to time in the manner provided in Section 1.5
of these By-Laws until a quorum shall attend.
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Section 1.5 Adjournment.
Any meeting of stockholders, annual or special, may adjourn from
time to time to reconvene at the same or some other place, and notice need not
be given of any such adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting, the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
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 1.6 Organization.
The Chairman of the Board, if any, or in his absence the
President, or in their absence any Vice President, shall call to order meetings
of stockholders and shall act as chairman of such meetings. The Board of
Directors or, if the Board fails to act, the stockholders may appoint any
stockholder director, or officer of the Corporation to act as chairman of any
meeting in the absence of the Chairman of the Board, the Chief Executive
Officer, the President, and all Vice Presidents.
The Secretary of the Corporation shall act as secretary of all
meetings of stockholders, but, in the absence of the Secretary, the chairman of
the meeting may appoint any other person to act as secretary of the meeting.
Section 1.7 Voting.
Except as otherwise provided by law or in the Certificate of
Incorporation or these By-Laws and except for the election of directors, at any
meeting duly called and held at which a quorum is present, a majority of the
votes cast at such meeting upon a given question by the holders of outstanding
shares of stock of all classes of stock of the Corporation entitled to vote
thereon who are present in person or by proxy shall decide such question. At any
meeting duly called and held for the election of directors at which a quorum is
present, directors shall be elected by a plurality of the votes cast by the
holders (acting as such) of shares of stock of the Corporation entitled to elect
such directors.
Section 1.8 Transaction of business.
No business may be transacted at an annual meeting of
stockholders, other than business that is either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board
of Directors (or any duly authorized committee thereof), (b) otherwise
properly brought before the annual meeting by or at the direction of the Board
of Directors (or any duly authorized committee thereof) or (c) otherwise
properly brought before the annual meeting by any stockholder of the
Corporation (i) who is a stockholder of record on the date of the giving of the
notice provided for in this Section and on the record date for the determination
of stockholders
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entitled to vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this Section.
In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than sixty (60) days nor more than ninety (90) days prior
to the date of the annual meeting; provided, however, that in the event that
less than seventy (70) days' notice or prior public disclosure of the date of
the annual meeting is given or made to stockholders, notice by the stockholder
(in order to be timely) must be so received not later than the close of business
on the tenth (10th) day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to bring
before the annual meeting (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (ii) the name and record address of such stockholder,
(iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such stockholder, (iv)
a description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business and (v) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in accordance
with the procedures set forth in this Section; provided, however, that, once
business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this Section shall be deemed to preclude discussion
by any stockholder of any such business. If the Chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Number and Term of Office.
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The business, property, and affairs of the Corporation shall be
managed by or under the direction of a Board of no less than three and no more
than 15 Directors; provided, however, that the Board, by resolution adopted by
vote of a majority of the then authorized number of directors, may increase or
decrease the number of directors. The directors shall be elected by the holders
of shares entitled to vote thereon at the annual meeting of stockholders, and
each shall serve (subject to the provisions of Article IV) until the next
succeeding annual meeting of stockholders and until his respective successor has
been elected and qualified.
Section 2.2 Nominations for director.
Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors of the
Corporation, except as may be otherwise provided in the Bylaws with respect to
the filling of vacancies on the Board of Directors. Nominations of persons for
election to the Board of Directors may be made at any annual meeting of
stockholders, (a) by or at the direction of the Board of Directors (or any
duly authorized committee thereof) or (b) by any stockholder of the Corporation
(i) who is a stockholder of record on the date of the giving of the notice
provided for in this Section and on the record date for the determination of
stockholders entitled to vote at such annual meeting and (ii) who complies with
the notice procedures set forth in this Section.
In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than sixty (60) days nor more than ninety (90) days prior
to the date of the annual meeting; provided, however, that in the event that
less than seventy (70) days' notice or prior public disclosure of the date of
the annual meeting is given or made to stockholders, notice by the stockholder
(in order to be timely) must be so received not later than the close of business
on the tenth (10th) day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder proposes to
nominate for election as a director (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by the person and (iv)
any other information relating to the person that would be required to be
disclosed in a proxy statement or other filing required to be made in connection
with solicitations of proxies for election of directors pursuant to Section 14
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations promulgated thereunder; and (b) as to the stockholder
giving the notice (i) the name and record address of such stockholder, (ii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such stockholder, (iii)
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a description of all arrangements or understandings between such stockholder and
each proposed nominee and any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to nominate the persons named in his notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filing required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder. Such notice
must be accompanied by a written consent of each proposed nominee to being named
as a nominee and to serve as a director if elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section. If the Chairman of the annual meeting determines that a nomination was
not made in accordance with the foregoing procedures, the Chairman shall declare
to the meeting that the nomination was defective and such defective nomination
shall be disregarded.
Section 2.3 Chairman of the Board.
The directors may elect one of their members to be Chairman of
the Board of Directors. The Chairman shall be subject to the control of and may
be removed by the Board of Directors. He shall perform such duties as may from
time to time be assigned to him by the Board.
Section 2.4 Meetings.
Regular meetings of the Board of Directors may be held without
notice at such time and place as shall from time to time be determined by the
Board.
Special meetings of the Board of Directors shall be held at such
time and place as shall be designated in the notice of the meeting whenever
called by the Chairman of the Board, if any, the Chief Executive Officer, the
President or by a majority of the directors then in office.
Section 2.5 Notice of Special Meetings.
The Secretary, or in his absence any other officer of the
Corporation, shall give each director notice of the time and place of holding of
special meetings of the Board of Directors by mail at least five days before the
meeting, or by telegram, cable, radiogram, or personal service at least two days
before the meeting. Unless otherwise stated in the notice thereof, any and all
business may be transacted at any meeting without specification of such business
in the notice.
Section 2.6 Quorum and Organization of Meetings.
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A majority of the total number of members of the Board of
Directors as constituted from time to time shall constitute a quorum for the
transaction of business, but, if at any meeting of the Board of Directors
(whether or not adjourned from a previous meeting) there shall be less than a
quorum present, a majority of those present may adjourn the meeting to another
time and place, and the meeting may be held as adjourned without further notice
or waiver. Except as otherwise provided by law or in the Certificate of
Incorporation or these By-Laws, a majority of the directors present at any
meeting at which a quorum is present may decide any question brought before such
meeting.
Meetings shall be presided over by the Chairman of the Board, if
any, or in his absence by the President, or in the absence of both by such other
person as the directors may select. The Secretary of the Corporation shall act
as secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.7 Committees.
The Board of Directors may, by resolution passed by a majority of
the whole Board, designate one or more committees, each committee to consist of
one or more of the directors of the Corporation. The Board may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business, property, and affairs
of the Corporation, and may authorize the seal of the Corporation to be affixed
to all papers which may require it; but no such committee shall have power or
authority in reference to amending the Certificate of Incorporation of the
Corporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the Board of Directors pursuant to authority expressly granted to the Board
of Directors by the Corporation's Certificate of Incorporation, fix any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation, or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
Corporation), adopting an agreement of merger or consolidation under Section 251
or 252 of the General Corporation Law of the State of Delaware, recommending to
the stockholders the sale, lease, or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of dissolution, or amending these
By-Laws; and, unless the resolution expressly so provided, no such committee
shall have the power or authority to declare a dividend, to authorize the
issuance of stock, or to adopt a certificate of ownership and merger pursuant to
Section 253 of the General Corporation Law of the State of Delaware. Each
committee which may be
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established by the Board of Directors pursuant to these By-Laws may fix its own
rules and procedures. Notice of meetings of committees, other than of regular
meetings provided for by the rules, shall be given to committee members. All
action taken by committees shall be recorded in minutes of the meetings.
Section 2.8 Action Without Meeting.
Nothing contained in these By-Laws shall be deemed to restrict
the power of members of the Board of Directors or any committee designated by
the Board to take any action required or permitted to be taken by them without a
meeting.
Section 2.9 Telephone Meetings.
Nothing contained in these By-Laws shall be deemed to restrict
the power of members of the Board of Directors, or any committee designated by
the Board, to participate in a meeting of the Board, or committee, by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other.
ARTICLE III
OFFICERS
Section 3.1 Executive Officers.
The executive officers of the Corporation shall be a Chief
Executive Officer, a President, one or more Vice Presidents, a Treasurer, and a
Secretary, each of whom shall be elected by the Board of Directors. The Board of
Directors may elect or appoint such other officers, including a Controller and
one or more Assistant Treasurers and Assistant Secretaries as it may deem
necessary or desirable. Each officer shall hold office for such term as may be
prescribed by the Board of Directors from time to time. Any person may hold at
one time two or more offices.
Section 3.2 Powers and Duties.
The Chairman of the Board, if any, or, in his absence, the Chief
Executive Officer, shall preside at all meetings of the stockholders and of the
Board of Directors. The Chief Executive Officer shall be the chief executive
officer of the Corporation. In the absence of the Chief Executive Officer, the
President or in his absence, a Vice President appointed by the President or, if
the President fails to make such appointment, by the Board, shall perform all
the duties of the Chief Executive Officer. The officers and agents of the
Corporation shall each have such powers and authority and shall perform such
duties in the management of the business, property, and affairs of the
Corporation as generally pertain to their respective offices, as well as such
powers and authorities and such duties as from time to time may be prescribed by
the Board of Directors.
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ARTICLE IV
RESIGNATIONS, REMOVALS, AND VACANCIES
Section 4.1 Resignations.
Any director or officer of the Corporation, or any member of any
committee, may resign at any time by giving written notice to the Board of
Directors, the Chief Executive Officer or the Secretary of the Corporation. Any
such resignation shall take effect at the time specified therein or, if the time
be not specified therein, then upon receipt thereof. The acceptance of such
resignation shall not be necessary to make it effective.
Section 4.2 Removals.
The Board of Directors, by a vote of not less than a majority of
the entire Board, at any meeting thereof, or by written consent, at any time,
may, to the extent permitted by law, remove with or without cause from office or
terminate the employment of any officer or member of any committee and may, with
or without cause, disband any committee.
Any director or the entire Board of Directors may be removed,
with or without cause, by the holders of a majority of the shares entitled at
the time to vote at an election of directors.
Section 4.3 Vacancies.
Any vacancy in the office of any director or officer through
death, resignation, removal, disqualification, or other cause, and any
additional directorship resulting from increase in the number of directors, may
be filled at any time by a majority of the directors then in office even though
less than a quorum remains or in the case of any vacancy in the office of any
director, by the stockholders, and, subject to the provisions of this Article
IV, the person so chosen shall hold office until his successor shall have been
elected and qualified; or, if the person so chosen is a director elected to fill
a vacancy, he shall (subject to the provisions of this Article IV) hold office
for the unexpired term of his predecessor.
ARTICLE V
CAPITAL STOCK
Section 5.1 Stock Certificates.
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The certificates for shares of the capital stock of the
Corporation shall be in such form as shall be prescribed by law and approved,
from time to time, by the Board of Directors.
Section 5.2 Transfer of Shares.
Shares of the capital stock of the Corporation may be transferred
on the books of the Corporation only by the holder of such shares or by his duly
authorized attorney, upon the surrender to the Corporation or its transfer agent
of the certificate representing such stock properly endorsed.
Section 5.3 Fixing Record Date.
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 or to express consent to corporate action in writing without
a meeting, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion, or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which, unless
otherwise provided by law, shall not be more than sixty nor less than ten days
before the date of such meeting, nor more than sixty days prior to any other
action.
Section 5.4 Lost Certificates.
The Board of Directors or any transfer agent of the Corporation
may direct a new certificate or certificates representing stock of the
Corporation 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 (or any transfer agent of
the Corporation authorized to do so by a resolution of the Board of Directors)
may, in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen, or destroyed certificate or
certificates, or his legal representative, to give the Corporation a bond in
such sum as the Board of Directors (or any transfer agent so authorized) shall
direct to indemnify the Corporation against any claim that may be made against
the Corporation with respect to the certificate alleged to have been lost,
stolen, or destroyed or the issuance of such new certificates, and such
requirement may be general or confined to specific instances.
Section 5.5 Regulations.
The Board of Directors shall have power and authority to make all
such rules and regulations as it may deem expedient concerning the issue,
transfer, registration, cancellation, and replacement of certificates
representing stock of the Corporation.
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ARTICLE VI
MISCELLANEOUS
Section 6.1 Corporate Seal.
The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization, and the words "Corporate Seal" and
"Delaware".
Section 6.2 Fiscal Year.
The fiscal year of the Corporation shall be determined from time
to time by resolutions of the Board of Directors.
Section 6.3 Notices and Waivers Thereof.
Whenever any notice whatever is required by law, the Certificate
of Incorporation, or these By-Laws to be given to any stockholder, director, or
officer, such notice, except as otherwise provided by law, may be given
personally, or by mail, or, in the case of directors or officers, by telegram,
cable, or radiogram, addressed to such address as appears on the books of the
Corporation. Any notice given by telegram, cable, or radiogram shall be deemed
to have been given when it shall have been delivered for transmission and any
notice given by mail shall be deemed to have been given when it shall have been
deposited in the United States mail with postage thereon prepaid.
Whenever any notice is required to be given by law, the
Certificate of Incorporation, or these By-Laws, a written waiver thereof, signed
by the person entitled to such notice, whether before or after the meeting or
the time stated therein, shall be deemed equivalent in all respects to such
notice to the full extent permitted by law.
Section 6.4 Stock of Other Corporations
or Other Interests.
Unless otherwise ordered by the Board of Directors, the Chief
Executive Officer, the President, the Secretary, and such attorneys or agents of
the Corporation as may be from time to time authorized by the Board of Directors
or the Chief Executive Officer, the President, shall have full power and
authority on behalf of this Corporation to attend and to act and vote in person
or by proxy at any meeting of the holders of securities of any corporation or
other entity in which this Corporation may own or hold shares or other
securities, and at such meetings shall possess and may exercise all the rights
and powers incident to the ownership of such shares or other securities which
this Corporation, as the owner or holder thereof, might have possessed and
exercised if present. The Chief Executive Officer, the President, the Secretary,
or such attorneys or agents, may also execute
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and deliver on behalf of this Corporation powers of attorney, proxies, consents,
waivers, and other instruments relating to the shares or securities owned or
held by this Corporation.
ARTICLE VII
AMENDMENTS
Except as provided below, the holders of shares entitled at the
time to vote for the election of directors shall have power to adopt, amend, or
repeal the By-Laws of the Corporation by vote of not less than a majority of
such shares, and except as otherwise provided by law, the Board of Directors
shall have power equal in all respects to that of the stockholders to adopt,
amend, or repeal the By-Laws by vote of not less than a majority of the entire
Board. However, any By-Law adopted by the Board may be amended or repealed by
vote of the holders of 2/3 of the shares entitled at the time to vote for the
election of directors. The holders of shares entitled at the time to vote
for the election of directors shall have power to adopt, amend, or repeal
Sections 1.2, 1.8 and 2.2 of the By-Laws of the Corporation by vote of not
less than 2/3 of such shares.
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