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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 9, 1999
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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COLLEGIATE PACIFIC INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-2795073
(State of incorporation or organization) (I.R.S. Employer Identification No.)
13950 SENLAC DRIVE NO. 200
FARMERS BRANCH, TEXAS 75235
(Address of principal executive offices) (Zip Code)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Title of each class Name of each exchange on which
To be so registered each class is to be registered
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COMMON STOCK, PAR VALUE $.01 PER SHARE CHICAGO STOCK EXCHANGE
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [X]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
SECURITIES ACT REGISTRATION STATEMENT FILE NUMBER TO WHICH THIS FORM RELATES:
NOT APPLICABLE
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SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
NONE
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
All of the issued outstanding shares of Collegiate Pacific Inc. Common
Stock, par value $.01 per share (the "Common Stock") are, and when
issued and paid for will be, fully paid and non-assessable. Collegiate
Pacific Inc. is authorized to issue 50,000,000 shares of Common Stock.
A. Voting Rights.
Holders of the Common Stock are entitled to one vote per share
on matters to be voted upon by the shareholders. Shareholders do not
have cumulative voting rights.
B. Dividends.
Holders of the Common Stock are entitled to receive dividends
from available funds if and when declared by the Board of Directors of
the Company and to share dividends equally. The Company does not
anticipate paying any dividends for the foreseeable future and
anticipates that any earnings of the Company will be retained for
expansion purposes. Any future dividends will depend upon such factors
as the Company's future earnings, its operating and financial
conditions, its capital requirements and general business conditions.
C. Other Rights.
Holders of the Common Stock are entitled to share ratably in
the assets of the Company legally available for distribution to
shareholders in the event of liquidation, dilution or winding up of the
Company. Holders of the Common Stock have no pre-emptive, subscription,
redemption or conversion rights.
ITEM 2. EXHIBITS.
The following is a list of all exhibits filed as part of this
registration statement:
Exhibit 1. Form of the Registrant's Certificate of Incorporation
Exhibit 2. Form of the Registrant's Bylaws.
Exhibit 3. Specimen of stock certificate representing the
securities registered hereunder.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Dated: September 9, 1999
COLLEGIATE PACIFIC INC.
By: /s/ MICHAEL J. BLUMENFELD
-----------------------------------
Michael J. Blumenfeld
Chairman, President and Chief
Executive Officer
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<S> <C>
1 Form of the Registrant's Certificate of Incorporation
2 Form of the Registrant's Bylaws.
3 Specimen of stock certificate representing the securities registered hereunder.
</TABLE>
<PAGE> 1
EXHIBIT 1
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE
OF "COLLEGIATE PACIFIC INC." AS RECEIVED AND FILED IN THIS COURT.
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF INCORPORATION, FILED THE FIFTEENTH DAY OF DECEMBER, A.D.
1998, AT 9 O'CLOCK A.M.
CERTIFICATE OF MERGER, CHANGING ITS NAME FROM "COPA DELAWARE INC." TO
"COLLEGIATE PACIFIC INC." FILED THE TWENTIETH DAY OF JULY, A.D. 1999, AT
9 O'CLOCK A.M.
/s/ EDWARD J. FREEL
------------------------------------------
EDWARD J. FREEL, SECRETARY OF STATE
[SEAL] AUTHENTICATION: 9934899
DATE: 08-23-99
<PAGE> 2
CERTIFICATE OF INCORPORATION OF COPA DELAWARE INC.
ARTICLE I
The name of the Corporation is CoPa Delaware Inc.
ARTICLE II
The name of the Corporation's registered agent and the address of its
registered office in the State of Delaware is Corporation Service Company, 1013
Centre Road, Wilmington, New Castle County, Delaware 19805-1297.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE IV
A. The total number of shares of capital stock which the Corporation
shall have the authority to issue is 51,000,000 shares consisting of (a)
1,000,000 shares of Preferred Stock, $.01 par value per share, and (b)
50,000,000 shares of Common Stock, $.01 par value.
B. Designations of Preferred Stock
1. Shares of Preferred Stock may be issued from time to time in one
or more series, each such series to have distinctive serial designations, as
shall hereafter be determined in the resolution or resolutions providing for the
issue of such series from time to time adopted by the Board of Directors
pursuant to the authority which is hereby vested in the Board of Directors.
2. Each series of Preferred Stock
(i) may have such number of shares;
(ii) may have such voting power, full or limited, or may be
without voting power;
(iii) may be subject to redemption at such time or times and at
such prices;
(iv) may be entitled to receive dividends (which may be
cumulative or noncumulative), payable in cash, securities
or property, at such rate or rates, on such conditions,
and at such times, and payable in preference to, or in
such relation to, the dividends payable in any other class
or classes or series of stock;
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(v) may be made convertible into, or exchangeable for, shares
of any other class or classes or of any other series of
the same or any other class or classes of stock of the
Corporation at such price or prices or at such rates of
exchange, and with such adjustments;
(vi) may be entitled to the benefit of a sinking fund or
purchase fund to be applied to the purchase or redemption
of shares of such series in such amount or amounts;
(vii) may be entitled to the benefit of conditions and
restrictions upon the creation of indebtedness of the
Corporation or any subsidiary, upon the issue of any
additional stock (including additional shares of such
series or of any other series) and upon payment of
dividends or the making of other distributions on, and the
purchase, redemption, or other acquisition by the
Corporation or any subsidiary, of any outstanding stock of
the Corporation, or of other affirmative or negative
covenants;
(viii) may have certain rights in the event of voluntary or
involuntary liquidation, dissolution, or winding up of the
Corporation, and relative rights of priority of payment of
shares of that series; and
(ix) may have such other relative, participating, optional or
other special rights and qualifications, limitations or
restrictions thereof;
all as shall be stated in a resolution or resolutions providing for the issue of
such Preferred Stock. Except where otherwise set forth in the resolution or
resolutions adopted by the Board of Directors providing for the issue of any
series of Preferred Stock, the number of shares comprising such series may be
increased or decreased (but not below the number of shares then outstanding)
from time to time by action of the Board of Directors.
ARTICLE V
In furtherance and not limitation of the powers conferred by the laws
of the State of Delaware, the Board of Directors is expressly authorized to
alter, amend or repeal the bylaws of the Corporation or to adopt new bylaws.
ARTICLE VI
The incorporator is Michael S. J. Lozich, whose mailing address is 1717
Main Street, Suite 2800, Dallas, Texas 75201.
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ARTICLE VII
The number of directors constituting the initial Board of Directors is
six, and the name and address of the persons who are to serve as directors until
the first annual meeting of the stockholders or until their respective
successors are elected and qualified are:
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Michael J. Blumenfeld 13950 Senlac, Suite 200
Farmers Branch, Texas 75235
Jeff Davidowitz 13950 Senlac, Suite 200
Farmers Branch, Texas 75235
Arthur Coerver 13950 Senlac, Suite 200
Farmers Branch, Texas 75235
Robert W. Philip 13950 Senlac, Suite 200
Farmers Branch, Texas 75235
William H. Watkins, Jr. 13950 Senlac, Suite 200
Farmers Branch, Texas 75235
Harvey Rothenberg 13950 Senlac, Suite 200
Farmers Branch, Texas 75235
</TABLE>
ARTICLE VIII
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit. If the Delaware General Corporation Law is amended after the
filing of this Certificate of Incorporation to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
ARTICLE IX
A. Right to Indemnification. Each person who was or is made a party or
is threatened to be made a party to or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a
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person of whom he or she is the legal representative, is or was a director or
officer of the Corporation or is or was serving at the request of the
Corporation as a director or officer of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director or officer or
in any other capacity while serving as a director or officer, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than permitted prior thereto), against all expense, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, excise taxes
or penalties and amounts paid or to be paid in settlement) incurred or suffered
by such indemnitee in connection therewith and such indemnification shall
continue with respect to an indemnitee who has ceased to be a director or
officer and shall inure to the benefit of the indemnitee's heirs, executors and
administrators; provided, however, that, except as provided in paragraph (B)
hereof with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee in connection with a proceeding
initiated by such indemnitee only if such proceeding was authorized by the Board
of Directors of the Corporation. The right to indemnification conferred in this
Article IX shall be a contract right and shall include the right to be paid by
the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition (hereinafter an "advancement of expenses");
provided, however, that, if the Delaware General Corporation Law requires, an
advancement of expenses incurred by an indemnitee shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Article or otherwise.
B. Right of Indemnitee to Bring Suit. If a claim under paragraph (A) of
this Article is not paid in full by the Corporation within sixty days after a
written claim has been received by the Corporation (except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be twenty days), the indemnitee may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim. If successful in
whole or in part in any such suit, the indemnitee shall also be entitled to be
paid the expense of prosecuting or defending such suit. In (i) any suit brought
by the indemnitee to enforce a right to indemnification hereunder (but not in a
suit brought by the indemnitee to enforce a right to an advancement of expenses)
it shall be a defense that, and (ii) in any suit by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final adjudication
that, the indemnitee has not met the applicable standard of conduct set forth in
the Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit
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brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled under this Article or otherwise to
be indemnified, or to such advancement of expenses, shall be on the Corporation.
C. Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses conferred in this Article IX shall not be exclusive of
any other right which any person may have or hereafter acquire under this
Certificate of Incorporation or any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
D. Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any indemnitee against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General Corporation
Law.
E. Indemnity of Employees and Agents of the Corporation. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the provisions
of this Article IX or as otherwise permitted under the Delaware General
Corporation Law with respect to the indemnification and advancement of expenses
of directors and officers of the Corporation.
ARTICLE X
No stockholder of the Corporation shall by reason of his holding shares
of any class of its capital stock have any preemptive or preferential right to
purchase or subscribe for any shares of any class of the Corporation, now or
hereafter to be authorized, or any notes, debentures, bonds or other securities
convertible into or carrying warrants, rights or options to purchase shares of
any class or any other security, now or hereafter to be authorized, whether or
not the issuance of any such shares or such notes, debentures, bonds or other
securities would adversely affect the dividend, voting or any other rights of
such stockholder; and the Board of Directors may issue shares of any class of
the Corporation, or any notes, debentures, bonds or other securities convertible
into or carrying warrants, rights or options to purchase shares of any class,
without offering any such shares of any class, either in whole or in part, to
the existing holders of any class of stock of the Corporation.
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ARTICLE XI
Cumulative voting for the election of Directors shall not be permitted.
IN WITNESS WHEREOF, the undersigned incorporator of the Corporation
hereby certifies that the facts herein stated are true, and accordingly has
signed this instrument this 11th day of December, 1998.
/s/ MICHAEL S. J. LOZICH
------------------------------
MICHAEL S. J. LOZICH
Incorporator
6
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 07/20/1999
991298460 - 2980248
CERTIFICATE OF MERGER
OF
COLLEGIATE PACIFIC INC.
(A PENNSYLVANIA CORPORATION)
AND
COPA DELAWARE INC.
(A DELAWARE CORPORATION)
It is hereby certified that:
1. The constituent business corporations participating in the merger
herein certified are:
(i) Collegiate Pacific Inc., which is incorporated under the laws of
the State of Pennsylvania; and
(ii) CoPa Delaware Inc., which is incorporated under the laws of the
State of Delaware.
2. An Agreement of Merger has been approved, adopted, certified,
executed, and acknowledged by each of the aforesaid constituent corporations in
accordance with the provisions of subsection (c) of Section 252 of the General
Corporation Law of the State of Delaware, to wit, by Collegiate Pacific Inc. in
accordance with the laws of the State of its incorporation and by CoPa Delaware
Inc. in the same manner as is provided in Section 251 of the General Corporation
Law of the State of Delaware.
3. The name of the surviving corporation in the merger herein certified
in CoPa Delaware Inc., which will continue its existence as said surviving
corporation under the name of Collegiate Pacific Inc. upon the effective date of
said merger pursuant to the provisions of the General Corporation Law of the
State of Delaware.
4. The Certificate of Incorporation of CoPa Delaware Inc. is to be
amended and changed by reason of the merger herein certified by striking out
article I thereof, relating to the name of said surviving corporation, and by
substituting in lieu thereof the following article:
"ARTICLE I
The name of the corporation is Collegiate Pacific Inc."
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and said Certificate of Incorporation as so amended and changed shall continue
to be the Certificate of Incorporation of said surviving corporation until
further amended and changed in accordance with the provisions of the General
Corporation Law of the State of Delaware.
5. The executed Agreement of Merger between the aforesaid constituent
corporations is on file at an office of the aforesaid surviving corporation, the
address of which is as follows: 13950 Senlac Drive, Suite 200, Farmers Branch,
Texas 75235
6. A copy of the aforesaid Agreement of Merger will be furnished by the
aforesaid surviving corporation, on request, and without cost, to any
stockholder of each of the aforesaid constituent corporations.
7. The authorized capital stock of Collegiate Pacific Inc. consists of
20,000,000 shares of Common Stock, par value of $.01 per share, and 2,000 shares
of Class A Preferred Stock, par value of $.01 per share.
8. The Merger shall be effective as of 12:01 a.m. on July 21, 1999.
Dated: July 20, 1999.
COLLEGIATE PACIFIC INC.,
a Pennsylvania corporation
By: /s/ MICHAEL J. BLUMENFELD
--------------------------------
Michael J. Blumenfeld, President
COPA DELAWARE INC.,
a Delaware corporation
By: /s/ MICHAEL J. BLUMENFELD
--------------------------------
Michael J. Blumenfeld, President
<PAGE> 1
EXHIBIT 2
BY-LAWS OF COLLEGIATE PACIFIC INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The corporation may also have offices at
such other places, both within and without the State of Delaware, as the Board
of Directors may from time to time determine or as the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of stockholders may be held at
such time and place, within or without the State of Delaware, as shall be
stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual Meetings. An annual meeting of stockholders shall be
held on such day in each fiscal year of the corporation and at such time and
place as may be fixed by the Board of Directors, at which meeting the
stockholders shall elect a Board of Directors and transact such other business
as may properly be brought before the meeting.
Section 3. Notice of Annual Meeting. Written or printed notice of the
annual meeting, stating the place, day and hour thereof, shall be given to each
stockholder entitled to vote thereat at such address as appears on the books of
the corporation, not less than ten days nor more than sixty days before the
date of the meeting.
Section 4. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or the
certificate of incorporation, may be called by the President, and shall be
called by the President or the Secretary at the request in writing of a
majority of the Board of Directors, or at the request in writing of
stockholders of record owning at least one-tenth (1/10) of all shares issued
and outstanding and entitled to vote at such meeting. Such request shall state
the purpose or purposes of the proposed meeting.
Section 5. Notice of Special Meetings. Written or printed notice of a
special meeting of stockholders, stating the place, day and hour and purpose or
purposes thereof, shall be given to each stockholder entitled to vote thereat
at such address as appears on the books of the corporation, not less than ten
days nor more than sixty days before the date of the meeting.
<PAGE> 2
Section 6. Business at Special Meetings. Business transacted at all
special meetings of stockholders shall be confined to the purpose or purposes
stated in the notice thereof.
Section 7. Stockholder List. At least ten days before each meeting of
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 the number of voting shares held by each, shall be prepared by
the Secretary. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for
such ten day period, 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. 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 meeting.
Section 8. Quorum. The holders of a majority of the votes attributed
to the shares of capital stock issued and outstanding and entitled to vote
thereat, represented in person or by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business except as
otherwise provided by statute, the certificate of incorporation or these
bylaws. The stockholders present may adjourn the meeting despite the absence of
a quorum. When a meeting is adjourned for less than thirty days in any one
adjournment and a new record date is not fixed for the adjourned meeting, it
shall not be necessary to give any notice of the adjourned meeting if the time
and place to which the meeting is adjourned are announced at the meeting at
which the adjournment is taken, and at the adjourned meeting any business may
be transacted that might have been transacted on the original date of the
meeting. When a meeting is adjourned for thirty days or more, or when after the
adjournment a new record date is fixed for the adjourned meeting, notice of the
adjourned meeting shall be given as in the case of an original meeting.
Section 9. Majority Vote. When a quorum is present at any meeting, the
vote of the holders of a majority of the shares having voting power represented
in person or by proxy shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of statute, the
certificate of incorporation or these bylaws, a different vote is required, in
which case such express provision shall govern and control the decision of such
question.
Section 10. Proxies. (a) Each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act for
him by proxy, but no such proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period.
(b) Without limiting the manner in which a stockholder may
authorize another person or persons to act for him as proxy pursuant to
subsection (a) of this Section, the following shall constitute a valid means by
which a stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing
another person or persons to act for him as proxy. Execution may be
accomplished by the stockholder or his
<PAGE> 3
authorized officer, director, employee or agent signing such writing or causing
his or her signature to be affixed to such writing by any reasonable means
including, but not limited to, by facsimile signature.
(ii) A stockholder may authorize another person or
persons to act for him as proxy by transmitting or authorizing the transmission
of a telegram, cablegram, or other means of electronic transmission to the
person who will be the holder of the proxy or to a proxy solicitation firm,
proxy support service organization or like agent duly authorized by the person
who will be the holder of the proxy to receive such transmission, provided that
any such telegram, cablegram or other means of electronic transmission must
either set forth or be submitted with information from which it can be
determined that the telegram, cablegram or other electronic transmission was
authorized by the stockholder. If it is determined that such telegrams,
cablegrams or other electronic transmissions are valid, the inspectors or, if
there are no inspectors, such other persons making that determination shall
specify the information upon which they relied.
(c) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to subsection (b)
of this Section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
(d) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to subsection (b)
of this Section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
Section 11. Voting. Unless otherwise provided by statute or the
certificate of incorporation, each stockholder shall have one vote for each
share of stock having voting power, registered in his name on the books of the
corporation.
Section 12. Consent of Stockholders in Lieu of Meeting. Any action
required to be taken at any annual or special meeting of stockholders, or any
action which may be taken at any annual or special meeting of stockholders, may
be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted and
such consent or consents are delivered to the corporation. Every written
consent shall bear the date of signatures of each stockholder and no written
consent shall be effective to take the corporate action referred to therein
unless, within sixty days of the earliest dated consent, written consents
signed by a sufficient number of holders to take action are delivered to the
corporation. Prompt notice of the taking of the corporate
<PAGE> 4
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
Section 13. Inspectors. (a) The corporation shall, in advance of any
meeting of stockholders, appoint one or more inspectors to act at the meeting
and make a written report thereof. The corporation may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. If
no inspector or alternate is able to act at a meeting of stockholders, the
chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the shares represented
at a meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares represented at the
meeting, and their count of all votes and ballots. The inspectors may appoint
or retain other persons or entities to assist the inspectors in the performance
of the duties of the inspectors.
(c) The date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at a meeting shall
be announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Delaware Court of Chancery, upon application by
a stockholder, shall determine otherwise.
(d) In determining the validity and counting of proxies and
ballots, the inspectors shall be limited to an examination of the proxies, any
envelopes submitted with those proxies, any information provided in accordance
with Article II, Section 10(b)(ii), ballots and the regular books and records
of the corporation, except that the inspectors may consider other reliable
information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons
that represent more votes than the holder of a proxy is authorized by the
record owner to cast, or more votes than the stockholder holds of record. If
the inspectors consider other reliable information for the limited purpose
permitted herein, the inspectors at the time they make their certification
pursuant to subsection (b)(v) of this Section shall specify the precise
information considered by them including the person or persons from whom they
obtained the information, when the information was obtained, the means by which
the information was obtained and the basis for the inspector's belief that such
information is accurate and reliable.
Section 14. Advance Notice of Shareholder Proposals. (a) In order to
properly submit any business to an annual meeting of shareholders, a
shareholder must give timely notice in writing to the Secretary of the
corporation. To be considered timely, a shareholder's notice must be delivered
either personally or by certified mail, postage prepaid, and received at the
principal or registered office of the corporation (i) not less
<PAGE> 5
than 120 days nor more than 150 days before the first anniversary date of the
corporation's proxy statement in connection with the last annual meeting of
shareholders or (ii) if no annual meeting has been called after the expiration
of more than 30 days from the date for such meeting contemplated at the time of
the previous year's proxy statement, not less than a reasonable time, as
determined by the Board of Directors, prior to the date of the applicable
annual meeting.
(b) Nomination of persons for election to the board of
directors may be made by the Board of Directors or any committee designated by
the Board of Directors or by any shareholder entitled to vote for the election
of directors at the applicable meeting of shareholders. However, nominations
other than those made by the Board of Directors or its designated committee
must comply with the procedures set forth in this Section 14, and no person
shall be eligible for election as a director unless nominated in accordance
with the terms of this Section 14. A shareholder may nominate a person or
persons for election to the Board of Directors by giving written notice to the
Secretary of the corporation in accordance with the procedures set forth above.
In addition to the timeliness requirements set forth above for notice to the
corporation by a shareholder of business to be submitted at an annual meeting
of shareholders, with respect to any special meeting of shareholders called for
the election of directors, written notice must be delivered in the manner
specified above and not later than the close of business on the seventh day
following the date on which notice of such meeting is first given to
shareholders.
(c) The Secretary of the corporation shall deliver any
shareholder proposals and nominations received in a timely manner for review by
the Board of Directors or a committee designated by the Board of Directors.
(d) A shareholder's notice to submit business to an annual
meeting of shareholders shall set forth (i) the name and address of the
shareholder, (ii) the class and number of shares of stock beneficially owned by
such shareholder, (iii) the name in which such shares are registered on the
stock transfer books of the corporation, (iv) a representation that the
shareholder intends to appear at the meeting in person or by proxy to submit
the business specified in such notice, (v) any material interest of the
shareholder in the business to be submitted, and (vi) a brief description of
the business desired to be submitted to the annual meeting, including the
complete text of any resolutions to be presented at the annual meeting, and the
reasons for conducting such business at the annual meeting. In addition, the
shareholder making such proposal shall promptly provide any other information
reasonably requested by the corporation.
(e) In addition to the information required above to be given
by a shareholder who intends to submit business to a meeting of shareholders,
if the business to be submitted is the nomination of a person or persons for
election to the Board of Directors then such shareholder's notice must also set
forth, as to each person whom the shareholder proposes to nominate for election
as a director, (i) the name, age, business address and, if known, residence
address of such person, (ii) the principal occupation or
<PAGE> 6
employment of such person, (iii) the class and number of shares of stock of the
Corporation which are beneficially owned by such person, (iv) any other
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors or is otherwise required by
the rules and regulations of the Securities and Exchange Commission promulgated
under the Securities Exchange Act of 1934, as amended, (v) the written consent
of such person to be named in the proxy statement as a nominee to serve as a
director if elected, and (vi) a description of all arrangements or
understandings between such shareholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by such shareholder.
(f) Any person nominated for election as director by the
Board of Directors or any committee designated by the Board of Directors shall,
upon the request of the Board of Directors or such committee, furnish to the
Secretary of the Corporation all such information pertaining to such person
that is required to be set forth in a shareholder's notice of nomination.
(g) Notwithstanding the foregoing provisions of this Section
14, a shareholder who seeks to have any 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."
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers. The business and affairs of the corporation shall
be managed by a Board of Directors. The Board may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute,
by the certificate of incorporation or these bylaws directed or required to be
exercised or done by the stockholders.
Section 2. Number of Directors. The number of directors which shall
constitute the whole Board shall be fixed from time to time by resolution of
the Board of Directors, provided that such number shall not be less than three
(3) nor more than nine (9).
Section 3. Election and Term. Except as provided in Section 4 of this
Article III, directors shall be elected at the annual meeting of the
stockholders, and each director shall be elected to serve until the next annual
meeting and until his successor shall have been elected and shall qualify, or
until his death, resignation or removal from office. Directors need not be
stockholders of the corporation.
Section 4. Vacancies and Newly Created Directorships. If the office of
any director or directors becomes vacant by reason of death, resignation,
retirement, disqualification, removal from office, or otherwise, or the number
of directors constituting the whole Board shall be increased, a majority of the
remaining or existing directors, though less than a quorum, may choose a
successor or successors, or the director or directors to fill the new
directorship or
<PAGE> 7
directorships, who shall hold office for the unexpired term in respect to which
such vacancy occurred or, in the case of a new directorship or directorships,
until the next annual meeting of the stockholders.
Section 5. Removal. The stockholders may remove a director either for
or without cause at any meeting of stockholders, provided notice of the
intention to act upon such matter shall have been given in the notice calling
such meeting.
ARTICLE IV
MEETINGS OF THE BOARD
Section 1. First Meeting. The first meeting of each newly elected
Board of Directors shall be held at the location of and immediately following
the annual meeting of 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; or the Board may meet at such
place and time as shall be fixed by the consent in writing of all the
directors. All meetings of the Board of Directors may be held at such place,
either within or without the State of Delaware, as from time to time shall be
determined by the Board of Directors.
Section 2. Regular Meetings. Regular meetings of the Board may be held
at such time and place and on such notice, if any, as shall be determined from
time to time by the Board.
Section 3. Special Meetings. Special meetings of the Board may be
called by the President or the Chairman of the Board on twenty-four hours'
notice to each director, delivered either personally or by mail or by telegram
or telecopier. Special meetings shall be called by the President or the
Secretary in like manner and on like notice on the written request of one
director.
Section 4. Quorum and Voting. At all meetings of the Board, a majority
of the directors at the time in office shall be necessary and sufficient to
constitute a quorum for the transaction of business; and the act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, the certificate of incorporation or these bylaws. If a quorum shall
not be present at any meeting 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 5. Telephone Meetings. Directors may attend any meeting of the
Board or any committee thereof by conference telephone, radio, television or
similar means of communication by means of which all persons participating in
the meeting can hear each other, and all members so attending shall be deemed
present at the meeting for all purposes including the determination of whether
a quorum is present.
Section 6. Action by Written Consent. Any action required or permitted
to be taken by the Board or any committee thereof, under the applicable
provisions of any statute, the certificate
<PAGE> 8
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 the members of
the Board or committee, as the case may be.
ARTICLE V
COMMITTEES
Section 1. Executive Committee. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate one or more directors
to constitute an Executive Committee, which Committee, to the extent provided
in such resolution, shall have and may exercise all of the authority of the
Board of Directors in the business and affairs of the corporation except where
action by the Board of Directors is expressly required by statute. The
Executive Committee shall keep regular minutes of its proceedings and report
the same to the Board when required.
Section 2. Other Committees. The Board of Directors may similarly
create other committees for such terms and with such powers and duties as the
Board deems appropriate.
Section 3. Committee Rules; Quorum. Each committee may adopt rules
governing the method of calling and time and place of holding its meetings.
Unless otherwise provided by the Board of Directors, a majority of any
committee shall constitute a quorum for the transaction of business, and the
act of a majority of the members of such committee present at a meeting at
which a quorum is present shall be the act of such committee.
ARTICLE VI
COMPENSATION OF DIRECTORS
The Board of Directors shall have authority to determine, from time to
time, the amount of compensation, if any, which shall be paid to its members
for their services as directors and as members of committees. The Board shall
also have power in its discretion to provide for and to pay to directors
rendering services to the corporation not ordinarily rendered by directors as
such, special compensation appropriate to the value of such services as
determined by the Board from time to time. Nothing herein contained shall be
construed to preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
ARTICLE VII
NOTICES
Section 1. Methods of Notice. Whenever any notice is required to be
given to any stockholder, director or committee member under the provisions of
any statute, the certificate of incorporation or these bylaws, such notice
shall be delivered personally or shall be given in writing by mail addressed to
such stockholder, director or committee member at such address as
<PAGE> 9
appears on the books of the corporation, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail
with postage thereon prepaid. Notice to directors and committee members may
also be given by telegram, which notice shall be deemed to be given at the time
it is delivered to the telegraph office, or by telecopy, which notice shall be
deemed to be given at the time it is transmitted or in person, which notice
shall be deemed to be given when received.
Section 2. Waiver of Notice. Whenever any notice is required to be
given to any stockholder, director or committee member 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. Attendance at any meeting shall constitute a waiver of
notice thereof except as otherwise provided by statute.
ARTICLE VIII
OFFICERS
Section 1. Executive Officers. The executive officers of the
corporation shall consist of at least a President and a Secretary, each of whom
shall be elected by the Board of Directors. The Board of Directors may also
elect as officers of the corporation a Chairman of the Board, one or more Vice
Presidents, one or more of whom may be designated Executive or Senior Vice
Presidents and may also have such descriptive titles as the Board shall deem
appropriate, and a Treasurer. 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 after each annual meeting of stockholders shall elect the
officers of the corporation.
Section 3. Other Officers and Agents. The Board may elect or appoint
Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers, and
such other officers and agents as it shall 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 of Directors.
Section 4. Salaries. The salaries of all officers of the corporation
shall be fixed by the Board of Directors except as otherwise directed by the
Board.
Section 5. Term, Removal and Vacancies. The officers of the
corporation shall hold office until their successors are chosen and qualify.
Any officer or agent of the corporation may be removed at any time by the
affirmative vote of a majority of the Board of Directors, or by the President.
Any vacancy occurring in any office of the corporation may be filled by the
Board of Directors or otherwise as provided in this Article.
Section 6. Execution of Instruments. The Chairman of the Board and the
President (and such other officers as are authorized thereunto by resolution of
the Board of Directors) may execute in the name of the corporation bonds,
notes, debentures and other evidences of
<PAGE> 10
indebtedness, stock certificates, deeds, mortgages, deeds of trust, indentures,
contracts, leases, agreements and other instruments, requiring a seal under the
seal of the corporation, and may execute such documents where not requiring a
seal, except where such documents are required by law to be otherwise signed
and executed, and except where the signing and execution thereof shall be
exclusively delegated to some other officer or agent of the corporation.
Section 7. Duties of Officers. The duties and powers of the officers
of the corporation shall be as provided in these bylaws, or as provided for
pursuant to these bylaws, or (except to the extent inconsistent with these
bylaws or with any provision made pursuant hereto) shall be those customarily
exercised by corporate officers holding such offices.
Section 8. Chairman of the Board. The Chairman of the Board shall
preside when present at all meetings of the Board of Directors. He shall advise
and counsel the other officers of the corporation and shall exercise such
powers and perform such duties as shall be assigned to or required of him from
time to time by the Board of Directors. The Chairman of the Board may, if so
designated by the Board of Directors, be the Chief Executive Officer of the
corporation; in such event he shall have all of the powers granted by the
bylaws to the President and from time to time may delegate all, or any, of his
powers and duties to the President.
Section 9. President. The President shall preside at all meetings of
the stockholders and shall be ex-officio a member of all standing committees,
have general powers of oversight, supervision and management of the business
and affairs of the corporation, and see that all orders and resolutions of the
Board of Directors are carried into effect.
In the event another executive officer has been designated Chief
Executive Officer of the corporation by the Board of Directors, then (i) such
other executive officer shall have all of the powers granted by the bylaws to
the President; and (ii) the President shall, subject to the powers of
supervision and control thereby conferred upon the Chief Executive Officer, be
the chief operating officer of the corporation and shall have all necessary
powers to discharge such responsibility including general supervision of the
affairs of the corporation and general and active control of all of its
business.
The President shall perform all the duties and have all the powers of
the Chairman of the Board in the absence of the Chairman of the Board.
Section 10. Vice Presidents. The Vice Presidents in the order
determined by the Board of Directors shall, in the absence or disability of the
President, perform the duties and exercise the powers of the President, and
shall perform such other duties as the Board of Directors, the Chairman of the
Board and the President may prescribe.
Section 11. Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all votes
and the minutes of all proceedings in a book to be kept for that purpose and
shall perform like duties for the committees of the Board of Directors when
required. Except as may be otherwise provided in these bylaws, he shall give,
or cause to be given, notice of all meetings of the stockholders and special
meetings of the Board of
<PAGE> 11
Directors, and shall perform such other duties as may be prescribed by the
Board of Directors and the President. He shall keep in safe custody the seal of
the corporation, if any, and shall have authority to affix the same to any
instrument requiring it, and when so affixed it may be attested by his
signature. The Board of Directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature. In the absence of the Treasurer and all Assistant Treasurers, the
Secretary shall perform all the duties and have all the powers of the
Treasurer.
Section 12. Assistant Secretaries. The Assistant Secretaries in the
order determined by the Board of Directors shall, in the absence or disability
of the Secretary, perform the duties and exercise the powers of the Secretary
and shall perform such other duties as the Board of Directors, the Chairman of
the Board and President may prescribe. Assistant secretaries may be appointed
by the president without prior approval of the board of directors.
Section 13. 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 monies and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the corporation as may be ordered by
the Board, taking proper vouchers for such disbursements, and shall render to
the Board of Directors, the Chairman of the Board and the President, whenever
they may require it, an account of all of his transactions as Treasurer and of
the financial condition of the corporation.
Section 14. Assistant Treasurers. The Assistant Treasurers in the
order determined by the Board of Directors shall, in the absence or disability
of the Treasurer, perform the duties and exercise the powers of the Treasurer
and shall perform such other duties as the Board of Directors, the Chairman of
the Board and the President may prescribe.
ARTICLE IX
SHARES AND STOCKHOLDERS
Section 1. Certificates Representing Shares. Every holder of stock in
the corporation shall be entitled to have a certificate, signed by, or in the
name of the corporation by, the Chairman or Vice Chairman of the Board of
Directors, or the President or a Vice President and the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the
corporation, certifying the number of shares owned by him in the corporation.
The signature of any such officer may be facsimile. 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 shall be authorized to issue more
than one class of stock or more than one series of any class, the powers,
designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set
forth in full or summarized on the face or back of the certificate which the
corporation shall issue to
<PAGE> 12
represent such class or series of stock, provided that, except as otherwise
provided in Section 202 of the General Corporation Law of the State of
Delaware, in lieu of the foregoing requirements, there may be set forth on the
face or back of the certificate which the corporation shall issue to represent
such class or series of stock a statement that the corporation will furnish
without charge to each stockholder who so requests the designations,
preferences and relative, participating, optional or other special rights of
each class or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 2. Transfer of Shares. Subject to valid transfer restrictions
and to stop-transfer orders directed in good faith by the corporation to any
transfer agent to prevent possible violations of federal or state securities
laws, rules or regulations, or for any other lawful purpose, upon surrender to
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. Fixing Record Date.
(a) 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 nor less than ten 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 date on which
notice is given, or, if notice is waived, at the close of business on the date
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.
(b) 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 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 this Section, 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 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
<PAGE> 13
Directors is required by statute, 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.
(c) 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 receive 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 a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty 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 4. Registered Stockholders. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of any share or shares to receive dividends, and to vote as such owner,
and for all other purposes as such owner; and the corporation 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.
Section 5. Lost Certificates. 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 of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
ARTICLE X
INDEMNIFICATION
(a) The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause
<PAGE> 14
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b), or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under subsections (a) and (b) (unless ordered
by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b). Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit, or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this Article X. Such expenses incurred by
other employees or agents may be so paid upon such terms and conditions, if
any, as the Board of Directors deems appropriate.
<PAGE> 15
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Article X shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Certificate of Incorporation,
any agreement or vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office.
(g) The corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this Article X.
(h) For purposes of this Article X, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article X with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this Article X, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan;
and references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee,
or agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
Article X.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article X shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
<PAGE> 16
ARTICLE XI
GENERAL
Section 1. Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, or of the resolutions, if any, providing for any series of stock, may be
declared by the Board of Directors at any meeting thereof, or by the Executive
Committee at any meeting thereof. Dividends may be paid in cash, in property or
in shares of the capital stock of the corporation, subject to the provisions of
the certificate of incorporation or of the resolutions, if any, providing for
any series of stock.
Section 2. Reserves. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, deem
proper as a reserve fund to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the corporation, or for such other
purpose or purposes as the directors shall think conducive to the interests of
the corporation, and the directors may modify or abolish any such reserve in
the manner in which it was created.
Section 3. Shares of Other Corporations. The Chairman of the Board,
the President and any Vice President is authorized to vote, represent and
exercise on behalf of the corporation all rights incident to any and all shares
of any other corporation or other entity standing in the name of the
corporation. The authority herein granted to said officer may be exercised
either by said officer in person or by any person authorized so to do by proxy
or power of attorney duly executed by said officer. Notwithstanding the above,
however, the Board of Directors, in its discretion, may designate by resolution
any additional person to vote or represent said shares of other corporations
and other entities.
Section 4. Checks. All checks, drafts, bills of exchange or demands
for money of the corporation shall be signed by such officer or officers or
such other person or persons as the Board of Directors may from time to time
designate.
Section 5. Corporate Records. The corporation shall keep at its
registered office or principal place of business, or at the office of its
transfer agent or registrar, a record of its stockholders giving the names and
addresses of all stockholders and the number and class and series, if any, of
shares held by each. All other books and records of the corporation may be kept
at such place or places within or without the State of Delaware as the Board of
Directors may from time to time determine.
Section 6. Fiscal Year. The fiscal year of the corporation shall be
fixed by the Board of Directors; if not so fixed, it shall be the calendar
year.
<PAGE> 17
ARTICLE XII
AMENDMENTS
These bylaws may be altered, amended or repealed or new bylaws may be
adopted at any annual meeting of the stockholders or at any special meeting of
the stockholders at which a quorum is present or represented, by the
affirmative vote of the holders of a majority of the shares entitled to vote at
such meeting and present or represented thereat, or by the affirmative vote of
a majority of the whole Board of Directors at any regular meeting of the Board
or at any special meeting of the Board, provided notice of the proposed
alteration, amendment or repeal or the adoption of new bylaws is set forth in
the notice of such meeting.
<PAGE> 1
EXHIBIT 3
<TABLE>
<S> <C>
COMMON STOCK COMMON STOCK
NUMBER SHARES
CP COLLEGIATE PACIFIC INC.
INCORPORATED UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
CUSIP 194589 10 7
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFIES THAT
is the owner and registered holder of
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF THE PAR VALUE $.01 OF
COLLEGIATE PACIFIC INC.
transferable only on the books of the corporation by the holder hereof in person or by duly authorized attorney upon surrender of
this Certificate properly endorsed. This certificate is not valid unless countersigned by the Transfer Agent and registered by the
Registrar.
WITNESS the facsimile seal and facsimile signatures of its duly authorized officers.
STATE OF INCORPORATION CHANGED TO DELAWARE
Dated:
/s/ H. Lynn Moore, Jr. /s/ Micheal J. Blumenfeld
SECRETARY [CORPORATE SEAL] PRESIDENT
COUNTERSIGNED AND REGISTERED:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
(JERSEY CITY, N.J.) TRANSFER AGENT
AND REGISTRAR
BY
AUTHORIZED OFFICER
</TABLE>
<PAGE> 2
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - _____________ Custodian ___________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act __________________
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received __________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[ ]
_______________________________________________________________________________
_______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
_______________________________________________________________________________
_______________________________________________________________________________
________________________________________________________________________ Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint ___________________________________________
Attorney to transfer the said stock on the books of the within-named
Corporation with full power of substitution in the premises.
Dated: ___________________________________________
___________________________________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME(S) AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN
EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed:
________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY
AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILATED OR
DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO
THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
