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U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES ACT OF 1934
Date of Report (Date of earliest event reported): November 6,1996
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Metro Global Media, Inc.
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(Exact name of registrant as specified in its charter)
Florida 0-21634 65-0025871
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State or other jurisdiction (Commission (IRS Employer
of incorporation File Number) Identification No.)
One Metro Park Drive, Cranston, Rhode Island 02910
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:(401) 942-7876
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(Former name or former address, if changed since last report)
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Item 5. Other Events
On November 6, 1996 Kenneth F. Guarino, the Company's President,
indicated that due to personal reasons he will step down as President of the
Company effective immediately. A. Daniel Geribo, who has served as a Director
of the Company since October 1995, will become President of the Company. Mr.
Geribo has served, since November 1994, and will continue to serve as President
of Capital Video Corporation, which operates a chain of retail video stores in
the New England and upstate New York area. From September 1993 to
November 1994, Mr. Geribo served as General Manager of Capital Video
Corporation, and from January 1983 to May 1993, Mr. Geribo served as President
of Unfinished Furniture House, Inc., a chain of retail furniture stores. Mr.
Geribo holds a B.S. in Finance from Northeastern University and a MBA from
Babson College. Mr. Geribo is 53 years old.
Effective November 7, 1996, the Company merged into Metro Sub, Inc., a
Delaware corporation and wholly-owned subsidiary of the Company ("Metro
Delaware"), pursuant to the Agreement and Plan of Merger between the Company
and Metro Delaware (the "Merger"). Concurrent with the Merger, Metro Delaware
changed its name to Metro Global Media, Inc. The Merger was approved by a
majority of the shareholders of the Company at the Annual Meeting of
Shareholders held October 31, 1996.
As a result of the Merger, the Certificate of Incorporation and Bylaws of
the Metro Delaware will be the Articles of Incorporation and Bylaws,
respectively, of the Company. Copies of the Agreement and Plan of Merger and
the Certificate of Incorporation and Bylaws of Metro Delaware are attached
hereto as Exhibits 2.01, 3.01 and 3.02, respectively.
Item 7. Financial Statements and Exhibits
(a) Financial statements of businesses acquired
not applicable
(b) Pro forma financial information
not applicable
(c) Exhibits
Number Description
* 2.01 Agreement and Plan of Merger by and
between Metro Global Media, Inc. and
Metro Sub, Inc.
* 3.01 Certificate of Incorporation of Metro
Sub, Inc.
* 3.02 Bylaws of Metro Sub, Inc.
* filed herewith
Item 8. Change in Fiscal Year
To facilitate the business operations of the Company by reducing
accounting distractions, commencing with the fiscal year ended May 31, 1997,
the Company will adopt the so-called 4-4-5 fiscal year, with all months ending
on a Saturday. Quarterly reports on Form 10-QSB for the balance of the 1997
fiscal year will be filed for the periods ended November 30, 1996 and March 1,
1997.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this amendment to be signed on its behalf by the
undersigned, thereunto duly authorized.
METRO GLOBAL MEDIA, INC.
November 7, 1996 By: /s/ T. James Blair
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T. James Blair, Treasurer
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Exhibit 2.01
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of November 6, 1996 (the "Merger
Agreement"), between Metro Global Media, Inc., a Florida corporation ("Metro
Florida") and Metro Sub, Inc., a Delaware corporation and a wholly-owned
subsidiary of Metro Florida ("Metro Delaware").
WITNESSETH
WHEREAS, on the date hereof, Metro Florida has authority to issue 10,000
shares of Common Stock, par value $.0001 per share (the "Metro Florida Common
Stock"), of which 3,518,034 shares are issued and outstanding and 115,000
shares are held in treasury as of the date hereof, and 2,000,000 shares of
Preferred Stock, of which no shares are issued and outstanding and no shares
are held in treasury as of the date hereof.
WHEREAS, on the date hereof Metro Delaware has authority to issue
10,000,000 shares of Common Stock, par value $.0001 per share (the "Metro
Delaware Common Stock"), of which 100 shares are issued and outstanding and no
shares are held in treasury as of the date hereof, and 2,000,000 shares of
Preferred Stock, of which no shares are issued and outstanding and no shares
are held in treasury as of the date hereof.
WHEREAS, the respective Boards of Directors of Metro Florida and Metro
Delaware have determined that it is advisable and in the best interests of each
of such corporation that Metro Florida merge with and into dispensing upon the
terms and subject to the conditions set forth herein for the purpose of
effecting the change of the state of incorporation of Metro Florida from the
State of Florida to the State of Delaware;
WHEREAS, the Board of Directors of Metro Florida has by resolutions duly
adopted and approved this Merger Agreement;
WHEREAS, Metro Florida has approved this Merger Agreement in its capacity
as the sole stockholder of Metro Delaware; and
WHEREAS, the Board of Director of Metro Florida has directed that this
Merger Agreement be submitted to a vote of its shareholders at the annual
meeting of shareholders to be held on October 31, 1996, or at any and all
adjournments thereof;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
herein contained, Metro Florida and Metro Delaware hereby agree as follows:
Section 1. Merger. Metro Florida shall be merged with and into Metro
Delaware (the "Merger"), and Metro Delaware shall be the surviving corporation
(hereinafter sometimes referred to as the "Surviving Corporation"). The
Surviving Corporation shall be the only corporation surviving the Merger and
its name shall,
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effective upon the Effective Time as defined herein, shall be changed to "Metro
Global Media, Inc." The Merger shall become effective upon the date and time
of filing of appropriate articles of merger, providing for the Merger, with the
Secretary of State of the State of Florida and an appropriate certificate of
ownership and merger, providing for the Merger, with the Secretary of State of
the State of Delaware, whichever later occurs (the "Effective Time").
Section 2. Governing Documents. The Certificate of Incorporation of
Metro Delaware, as in effect immediately prior to the Effective Time, shall be
the Certificate of Incorporation of the Surviving Corporation without change or
amendment (other than the name change to "Metro Global Media, Inc." set forth
in Section 1) until thereafter amended in accordance with the provisions
thereof and applicable law. The Bylaws of Metro Delaware, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation without change or amendment until thereafter amended in accordance
with the provisions thereof, the Certificate of Incorporation of the Surviving
Corporation and applicable law.
Section 3. Succession. At the Effective Time, the separate corporate
existence of Metro Florida shall cease, and Metro Delaware shall succeed to all
of the assets and property (whether real, personal or mixed), rights,
privileges, franchises, immunities and powers of Metro Florida, and Metro
Delaware shall assume and be subject to all of the duties, liabilities,
obligations and restrictions of every kind and description of Metro Florida,
all in the manner and as more fully set forth in Section 259 of the General
Corporation Law of the State of Delaware.
Section 4. Directors. The directors and the members of the various
committees of the Board of Directors of Metro Florida immediately prior to the
Effective Time shall be the directors and members of such committees of the
Surviving Corporation at and after the Effective Time to serve until the
expiration of their respective terms and until their successors are duly
elected and qualified.
Section 5. Officers. The officers of Metro Florida immediately preceding
the Effective Time shall be the officers of the Surviving Corporation at and
after the Effective Time until their successors are duly elected and qualified.
Section 6. Further Assurances. From time to time, as and when required
by the Surviving Corporation or by its successors or assigns, there shall be
executed and delivered on behalf of Metro Florida such deeds and other
instruments, and there shall be taken or caused to be taken by it all such
further and other action, as shall be appropriate, advisable or necessary in
order
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to vest, perfect or conform, of record or otherwise, in the Surviving
Corporation, the title to and lien of all property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of Metro Florida, and
otherwise to carry out the purposes of this Merger Agreement, and the officers
and directors of the Surviving Corporation are fully authorized, in the name
and on behalf of Metro Florida or otherwise, to take any and all such action
and to execute and deliver any and all such deeds and other instruments.
Section 7. Conversion of Securities. At the Effective Time, by virtue of
the Merger and without any action on the part of the holder thereof:
(a) each share of Metro Florida Common Stock issued and outstanding
immediately prior to the Effective Time shall, except as provided in Section 8
hereof, be changed and converted into and shall be one fully paid and
nonassessable share of Metro Delaware Common Stock;
(b) each share of Metro Florida Common Stock held in the treasury of
Metro Florida immediately prior to the Effective Time shall be automatically
converted into one share of Metro Delaware Common Stock, which shares shall
continue to be retained and held by the Surviving Corporation in the treasury
thereof;
(c) each option, warrant, purchase right, unit or other security of Metro
Florida issued and outstanding immediately prior to the Effective Time shall be
changed and converted into and shall be identical security of Metro Delaware,
and the same number of shares of Metro Delaware Common Stock shall be reserved
for purposes of the exercise of such options, warrants, purchase rights, units
or other securities as is equal to the number of shares of Metro Florida Common
Stock so reserved as of the Effective Time; and
(d) each share of Metro Delaware Common Stock issued and outstanding in
the name of Metro Florida immediately prior to the Effective Time shall be
canceled and retired and resume the status of authorized and unissued shares of
Metro Delaware Common Stock or other securities of Metro Delaware shall be
issued in respect thereof.
Section 8. Dissenting Shareholders. Notwithstanding the provisions of
Section 7(a) hereof, any outstanding shares of Metro Florida Common Stock held
by a shareholder who shall have elected to dissent from the Merger and who
shall have exercised and perfected appraisal rights with respect to such shares
in accordance with Section 607.1320 of the Florida Business Corporation Act (a
"Dissenting Stockholder") shall not be converted into shares of Metro Delaware
Common Stock as a result of the Merger, but Dissenting Stockholders shall be
entitled to receive in lieu thereof only such consideration as shall be
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provided in such Section 607.1320, except that shares of Metro Florida Common
Stock outstanding immediately prior to the Effective Time and held by a
Dissenting Stockholder who shall thereafter withdraw his election to dissent
from the Merger or lose his right to dissent from the Merger as provided in
such Section 607.1320 shall be deemed converted, as of the Effective Time, into
such number of shares of Metro Delaware Stock as such holder otherwise would
have been entitled to receive as a result of the Merger.
Section 9. Employee Option and Benefit Plans. Each option or other right
to purchase or otherwise acquire shares of Metro Florida Common Stock granted
under any employee option, stock purchase or other benefit plan of Metro
Florida (collectively, the "Plans") which is outstanding immediately prior to
the Effective Time shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into and become an option or right to
acquire (and Metro Delaware hereby assumes the obligation to delivery) the same
number of shares of Metro Delaware Common Stock, at the same price per share,
and upon the same terms, and subject to the same conditions, as set forth in
the respective Plan as in effect immediately prior to the Effective Time. The
same number of shares of Metro Delaware Common Stock shall be reserved for
purposes of the Plans as is equal to the number of shares of Metro Florida
Common Stock so reserved immediately prior to the Effective Time. Metro
Delaware hereby assumes, as of the Effective Time, (i) the Plans and all
obligations of Metro Florida under the Plans, including the outstanding
options, stock purchase rights or awards or portions thereof granted pursuant
to the Plans and the right to grant additional options and stock purchase
rights thereunder and (ii) all obligations of Metro Florida under all other
benefit plans in effect as of the Effective Time with respect to which employee
rights or accrued benefits are outstanding as of the Effective Time.
Section 10. Dividends and Distributions. In the event that any dividend
or other distribution shall hereafter be declared by the Board of Directors of
Metro Florida in respect of the outstanding shares of Metro Florida Common
Stock payable subsequent to the Effective Time, the obligation to make payment
of such dividend or other distribution shall, by virtue of the Merger, become
the obligation of the Surviving Corporation and shall be satisfied in the
manner specified in such declaration, except that, to the extent such dividend
or other distributions shall have been declared payable in whole or in part in
shares of Metro Florida Common Stock, the Surviving Corporation shall issue, in
place thereof, to the persons entitled thereto, the identical number of shares
of Metro Delaware Common Stock.
Section 11. Condition to the Merger. The consummation of the Merger and
the other transactions herein provided is subject
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to receipt prior to the Effective Time of the requisite approval of the Merger
by the holders of Metro Florida Common Stock pursuant to the Florida Business
Corporation Law.
Section 12. Certificates. At and after the Effective Time all of the
outstanding certificates which immediately prior thereto represented shares of
Metro Florida Common Stock or warrants, units or other securities of Metro
Florida shall be deemed for all purposes to evidence ownership of and to
represent the shares of Metro Delaware Common Stock or warrants, units or other
securities of Metro Delaware, as the case may be, into which the shares of
Metro Florida Common Stock or warrants, units or other securities of Metro
Florida Common Stock or warrants, units or other securities of Metro Florida
represented by such certificates have been converted as herein provided and
shall be so registered on the books and records of the Surviving Corporation or
its transfer agent. The registered owner of any such outstanding certificate
shall, until such certificate shall have been surrendered for transfer or
otherwise accounted for to the Surviving Corporation or its transfer agent,
have and be entitled to exercise any voting and other rights with respect to,
and to receive any dividends and other distributions upon, the shares of Metro
Delaware Common Stock or warrants, units or other securities of Metro Delaware,
as the case may be, evidenced by such outstanding certificate, as above
provided.
Section 13. Amendment. The parties hereto may amend, modify or
supplement this Merger Agreement prior to the Effective Time; provided,
however, that no amendment, modification or supplement may be made after the
adoption of this Merger Agreement by the shareholders of Metro Florida which
changes this Merger Agreement in a way which, in the judgment of the Board of
Directors of Metro Florida, would have a material adverse effect on the
shareholders of Metro Florida, unless such amendment, modification or
supplement is approved by such shareholders.
Section 14. Termination. This Merger Agreement may be terminated, and
the Merger and the other transactions provided for herein may be abandoned, at
any time prior to the Effective Time, whether before or after approval of this
Merger Agreement by the shareholders of Metro Florida, by action of the Board
of Directors of Metro Florida if:
(a) the condition specified in Section 11 hereof shall not have been
satisfied or waived; or
(b) the Board of Directors of Metro Florida determines for any reason, in
its sole judgment and discretion, that the consummation of the Merger would be
inadvisable or not in the best interests of Metro Florida and its shareholders.
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Section 15. Counterparts. This Merger Agreement may be executed in one
or more counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but
one agreement.
Section 16. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Merger Agreement.
Section 17. Florida Appointment. The Surviving Corporation hereby agrees
that it may be served with process in the State of Florida in any action or
special proceeding for enforcement of any liability or obligation of Metro
Florida or the Surviving Corporation arising from the Merger. The Surviving
Corporation appoints the Secretary of State of the State of Florida as its
agent to accept service of process in any such suit or other proceeding and a
copy of such process shall be mailed by the Secretary of State of the State of
Florida to the Surviving Corporation at 1060 Park Avenue, Cranston, RI 02910,
Attention: President.
Section 18. Governing Law. This Merger Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware.
Section 19. Severability. Should any part of this Merger Agreement for
any reason be declared invalid, such declaration shall not affect the validity
of any remaining portion thereof which remaining portion shall remain in full
force and effect as if this Merger Agreement had been executed with the invalid
portion thereof eliminated.
Section 20. Entire Agreement. This Merger Agreement embodies the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
between the parties hereto relating to such subject matter.
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IN WITNESS WHEREOF, Metro Florida and Metro Delaware have caused this
Merger Agreement to be executed and delivered as of the date first above
written.
METRO GLOBAL MEDIA, INC.
a Florida corporation
By:/s/ T. James Blair
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Name:T. James Blair
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Title:Treasurer
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METRO SUB, INC.
A Delaware corporation
By:/s/ T. James Blair
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Name:T. James Blair
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Title:Treasurer
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Exhibit 3.01
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CERTIFICATE OF INCORPORATION
OF
METRO SUB, INC.
I, the undersigned, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware, do hereby certify as follows:
FIRST: The name of the Corporation is Metro Sub, Inc., Inc.
SECOND: The address of the Corporation's registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: 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 Delaware.
FOURTH: The total number of shares which the Corporation shall have the
authority to issue shall be TWELVE MILLION (12,000,000) SHARES, of which (i)
TEN MILLION (10,000,00) SHARES of Common Stock at ONE TENTH MIL ($0.0001) par
value per share, and (ii) and TWO MILLION (2,000,000) SHARES OF PREFERRED STOCK
at ONE TENTH MIL ($0.0001) par value per share.
The designations and powers, preferences and rights, and the
qualifications, limitations and restrictions thereof in respect of
each class are as follows:
Common Stock
(1) Dividends. After the requirements with respect to
preferential dividends upon the Preferred Stock shall have been set,
then and not otherwise, the holders of Common Stock shall be entitled
to receive such dividends as may be declared from time to time by the
Board of Directors.
(2) Voting Rights. Each holder of Common Stock shall be
entitled to one vote for each share held and, except as otherwise
herein or by law provided, voting rights shall be vested exclusively
in the holders of Common Stock.
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(3) Voting by Ballot. At each meeting of stockholders for the
election of Directors the voting for Directors need not be by ballot
unless the holders of record of a majority of the shares of Common
Stock present in person or represented by proxy at such meeting shall
so determine.
(4) Preemptive Rights. No holder of shares of any class of
stock of the Corporation, whether now or hereafter authorized, shall
by reason of holding any such share or shares, purchase or subscribe
for any shares of any class of stock of the Corporation, whether now
or hereafter authorized, or any bonds, debentures, notes or other
obligations or securities convertible into or carrying options or
warrants to purchase shares of any class of stock of the Corporation,
whether now or hereafter authorized.
Preferred Stock
The Preferred Stock shall be issued in one or more series. The
Board of Directors is expressly authorized to issue the shares of
Preferred Stock in such series and to fix from time to time before
issuance the number of shares to be included in any series and the
voting powers, designations, preferences and relative participating
options or other rights, if any, and the qualifications, limitations
or restrictions thereof, if any, of all shares of such series. The
authority of the Board of Directors with respect to each series shall
include, without limitation thereto, the determination of all of the
following, and the shares of each series may vary from the shares of
any other series in any or all of the following respects:
(1) the number of shares constituting such series, and the
designation thereof to distinguish the shares of all other series;
(2) the annual dividend rate on the shares of such series,
whether such dividends are payable in installments and whether such
dividends shall be cumulative and, if cumulative, the date from which
such dividends shall accumulate;
(3) the preference, if any, of the shares of such series in the
event of any voluntary or involuntary liquidation or dissolution of
the Corporation;
(4) the voting rights, if any, of the shares of
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such series, in addition to the voting rights prescribed by law, and
the terms and conditions of exercise of any such voting rights;
(5) the redemption price or prices, if any, of the shares of
such series, and the terms and conditions of any such redemption;
(6) the right, if any, of the shares of such series to be
converted into shares of any other series or class, and the terms and
conditions of any such conversion; and
(7) any other relative rights, preferences and limitations of
the shares of such series.
FIFTH: The name and mailing address of the incorporator is Francis D.
Parisi, Esq., James P. Redding & Associates, 170 Westminster Street,
Providence, RI 02903.
SIXTH: Elections of Directors need not be by written ballot except and
to the extent provided in the by-laws of the Corporation.
SEVENTH: In addition to the powers conferred on stockholders of the
Corporation by Section 109 of the General Corporation Law of Delaware, the
Board of Directors of the Corporation is expressly authorized to make, alter or
repeal the by-laws of the Corporation.
EIGHTH: The Corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have
power to indemnify under said section from and against any and all of the
expenses, liabilities, or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which such indemnified person may be entitled
under any Bylaw, agreement, 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, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors, and administrators of such a person.
NINTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of
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Delaware may, on the application in a summary way of this Corporation or of any
creditor or stockholder thereof or on the application of any receiver or
receivers appointed for this Corporation under the provisions of Section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution
or of any receiver or receivers appointed for this Corporation under the
provisions of Section 279 of Title 8 of the Delaware Code, order a meeting of
the creditors or class of creditors, and/or the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manners as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
creditors, and/or on all the stockholders or class of stockholders, of this
Corporation, as the case may be, and also on this Corporation.
TENTH: To the fullest extent that the General Corporation Law of the
State of Delaware as it exists on the date hereof or as it my hereafter be
amended permits the limitation or elimination of the liability of directors, no
director of this Corporation shall be liable to this Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
No amendment to or repeal of this Article shall apply to or have any effect on
the liability or alleged liability of any director of this Corporation for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
ELEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 6th day of
November, 1996.
/s/ T. James Blair
T. James Blair, Incorporator
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Exhibit 3.02
METRO SUB, INC.
BYLAWS
ARTICLE I
Offices
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. 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.
ARTICLE II
Meetings of Stockholders
Section 1. All meetings of the stockholders for the election of directors
shall be held at such place, either within or without the State of Delaware, as
shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting. Meetings of stockholders for any other purpose may
be held at such time and place, within or without the State of Delaware, as
shall be stated in the notice or waiver of notice of such meeting.
Section 2. The Annual Meeting of the stockholders for the election of
directors and for the transaction of any other proper business, shall be held
on the last Thursday of October, or on such other day as may be fixed by the
Board of Directors in each year commencing with the fiscal year 1997.
Section 3. Written notice of the Annual Meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting.
Section 4. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise provided by statute or by the certificate of
incorporation, may be called by the president or the secretary and shall be
called by the president or secretary at the request in writing of a majority of
the Board of Directors or at the request in writing of the holders of not less
than ten percent of the shares of common stock of the corporation issued and
outstanding and entitled to vote at such meeting. Any such request shall state
the purpose or purposes of the proposed meeting.
<PAGE> 2
Section 5. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called shall be given to each stockholder entitled to vote at such meeting not
less than ten nor more than sixty days before the date of the meeting.
Section 6. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 7. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 8. At each meeting of the stockholders, except as otherwise
provided by statute or by the certificate of incorporation, the holders of a
majority of the issued and outstanding shares of each class of stock entitled
to vote thereat, present in person or represented by proxy, shall be necessary
and sufficient to constitute a quorum for the transaction of business. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until the quorum
shall be present or represented. At any such adjourned meeting at which a
quorum shall be present or represented any business may be transacted which
might have been transacted at the meeting in accordance with the original
notice. 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 9. When a quorum is present or represented at any meeting, the
vote of the holders of a majority of the shares of stock having voting power
present in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by express provision
of the statutes or of the certificate of incorporation or of these by-laws a
different vote is required, in which case such express
<PAGE> 3
provision shall govern and control the decision of such question.
Section 10. At each meeting of the stockholders, each stockholder shall,
unless otherwise provided by the certificate of incorporation, be entitled to
one vote in person or by proxy for each share of stock held by him which has
voting power upon the matter in question, but no proxy shall be voted after
three years from its date, unless the proxy provides for a longer period.
Section 11. Whenever the vote of stockholders at a meeting thereof is
required or permitted to be taken for or in connection with any corporate
action, whether by any provision of the statutes or of the certificate of
incorporation or otherwise, the meeting and vote of stockholders may be
dispensed with if all of the stockholders who would have been entitled to vote
upon the action if such meeting were held shall consent in writing to the
taking of such corporate action.
ARTICLE III
Board of Directors
Section 1. The number of directors which shall constitute the whole board
initially shall be seven (7) and thereafter shall be such as from time to time
may be fixed by resolution of the Board of Directors at a duly held regular or
special meeting.
Section 2. Directors shall, except as otherwise required or provided by
statute or by the certificate of incorporation, be elected by a majority of the
votes cast at a meeting of the stockholders by the holders of shares entitled
to vote in the election.
Section 3. Any director may resign at any time by giving written notice
to the president or the secretary. The resignation of any director shall take
effect at the time specified therein; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
Section 4. Any director may be removed, either with or without cause, at
any time by the affirmative vote of the holders of record of a majority of the
outstanding shares of stock entitled to vote in the election of directors, at a
special meeting of the stockholders called for the purpose.
Section 5. Vacancies. Any vacancy occurring on the Board of Directors
(death, resignation, retirement, removal or otherwise) may be filled by (1) and
election at an annual or special meeting called for that purpose; or (2) the
affirmative vote of a majority of the remaining directors. A director so
elected shall serve during the unexpired term of his predecessor
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director in office.
Section 6. After each annual election of directors and on the same day,
the Board of Directors may meet for the purpose of organization, the election
of officers and the transaction of other business at the place where regular
meetings of the Board of Directors are held. Notice of such meeting need not
be given. Such meeting may be held at any other time or place which shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors or in a consent and waiver of notice thereof signed by all
the directors.
Section 7. Regular meetings of the Board of Directors may be held at such
places and at such times as the board shall by resolution determine. If any
day fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting which would otherwise be held on that
day shall be held at such place at the same hour and on the next succeeding
business day not a legal holiday. Notice of regular meetings need not be
given.
Section 8. Special meetings of the Board of Directors shall be held
whenever called by the president or the secretary or any two of the directors.
Notice of each such meeting shall be mailed to each director, addressed to him
at his residence or usual place of business, at least three days before the day
on which the meeting is to be held, or shall be sent to him by telegraph, cable
or wireless so addressed, or shall be delivered personally or by telephone, at
least 24 hours before the time the meeting is to be held. Each such notice
shall state the time and place of the meeting but need not state the purposes
thereof, except as otherwise provided by statute or by these bylaws. Notice of
any meeting of the board need not be given to any director who shall be present
at such meeting; and any meeting of the board shall be a legal meeting without
any notice thereof having been given, if all of the directors then in office
shall be present thereat.
Section 9. Except as otherwise provided by statute or by these bylaws, a
majority of the directors then in office shall be required to constitute a
quorum for the transaction of business at any meeting, and the affirmative vote
of a majority of the directors present at the meeting shall be necessary for
the adoption of any resolution or the taking of any other action. In the
absence of a quorum, the director or directors present may adjourn any meeting
from time to time until a quorum be had. Notice of any adjourned meeting need
not be given.
Section 10. Any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee thereof may be taken without a
meeting if all members of the board or of such committee, as the case may be,
consent thereto in writing and such written consent is filed with the minutes
or proceedings of the board or such committee.
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Section 11. Directors, as such, shall not receive any stated salary for
their services, but by resolution of the Board of Directors a fixed sum and
expenses of attendance, if any, may be allowed for attendance at each regular
and special meeting of the board or of any committee thereof. Nothing herein
contained shall be construed so as to preclude any director from serving the
corporation in any other capacity, or from serving any of its stockholders,
subsidiaries or affiliated corporations in any capacity, and receiving
compensation therefor.
Section 12. The Board of Directors, by resolution passed by a majority of
the whole board, may designate one or more committees, each committee to
consist of two 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. Any
such committee, to the extent provided in the resolution, shall have and may
exercise the powers of the Board of Directors in the management of the business
and affairs of the corporation, and may authorize the seal of the corporation
to be affixed to all papers which may require it; provided, however, that in
the absence or disqualification of any member of such committee or committees,
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 the place of
any such absent or disqualified member. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors.
Section 13. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
Section 14. No contract or transaction between the corporation and one or
more of its directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the board of directors or
the committee, and the board or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
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(2) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the shareholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the shareholders; or (3) The contract or transaction is
fair as to the corporation as of the time it is authorized, approved or
ratified, by the board of directors, a committee thereof, or the shareholders.
(b) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
Notices
Section 1. Whenever under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be
given to any director or stockholder, it shall not be necessary that personal
notice be given, and such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of
the corporation, with postage thereon prepaid, and such notice shall be deemed
to be given at the time when the same shall be deposited in the United States
mail. Notice to directors may also be given by telegraph, cable or wireless,
and such notice shall be deemed to be given when the same shall be filed.
Notice to directors may also be given in person or by telephone, and such
notice shall be deemed to be given when the same shall be delivered.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
ARTICLE V
Officers
Section 1. The officers of the corporation shall be a president, one or
more vice presidents, a secretary, a treasurer, and, if the board shall so
determine, such other subordinate officers as may be appointed by the Board of
Directors. Any two or more offices may be held by the same person.
Section 2. The officers shall be elected annually by the Board of
Directors, and except in the case of officers appointed in accordance with the
provisions of Section 3 of this Article, each shall hold office until the next
annual election of officers
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and until his successor shall have been elected and qualified, unless his
death, resignation or removal from office, in the manner hereinafter provided,
shall earlier occur.
Section 3. In addition to the officers named in Section 1 of this
Article, the corporation may have such other officers and agents as may be
deemed necessary by the Board of Directors. Such other officers and agents
shall be appointed in such manner, have such duties and hold their offices for
such terms, as may be determined by resolution of the Board of Directors.
Section 4. Any officer may resign at any time by giving written notice of
his resignation to the Board of Directors, to the president or to the secretary
of the corporation. Any such resignation shall take effect at the time
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 5. Any officer may be removed, either with or without cause, by
action of the directors.
Section 6. A vacancy in any office because of death, resignation, removal
or any other cause shall be filled for the unexpired portion of the term in the
manner prescribed in these bylaws for election or appointment to such office.
Section 7. The president shall have direct charge of the business of the
corporation, subject to the general control of the Board of Directors, and
shall be the chief executive officer of the corporation unless the chairman of
the Board of Directors is designated chief executive officer by the board.
Section 8. In the event of the absence or disability of the president,
the vice president, or, in case there shall be more than one vice president,
the vice president designated by the Board of Directors, shall perform all of
the duties of the president, and when so acting, shall have all the powers of,
and be subject to all the restrictions upon, the president. Except where by
law the signature of the president is required, each of the vice presidents
shall possess the same power as the president to sign all certificates,
contracts, obligations and other instruments of the corporation. Any vice
president shall perform such other duties and may exercise such other powers as
from time to time may be assigned to him by these bylaws or by the Board of
Directors or by the president.
Section 9. The secretary of the corporation, if present, shall act as
secretary of, and keep the minutes of, all the proceedings of the meeting of
the stockholders and of the Board of Directors and of any committee of the
Board of Directors in one or more books to be kept for that purpose; shall
perform such other duties as shall be assigned to him by the president or the
Board of Directors; and, in general, shall perform all duties incident to the
office of secretary.
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Section 10. If required by the Board of Directors, the treasurer shall
give a bond for the faithful discharge of his duties, in such sum and with such
surety or sureties as the Board of Directors shall determine. The treasurer
shall keep or cause to be kept full and accurate records of all receipts and
disbursements in the books of the corporation and shall have the care and
custody of all funds and securities of the corporation. He shall disburse the
funds of the corporation as may be ordered by the Board of Directors, shall
render to the president and directors, whenever they request it, an account of
all of his transactions as treasurer and shall perform such other duties as may
be assigned to him by the president or the Board of Directors; and, in general,
shall perform all duties incident to the office of treasurer.
Section 11. The salaries of the officers shall be fixed from time to time
by the Board of Directors. Nothing contained herein shall preclude any officer
from serving the corporation in any other capacity, including that of director,
or from serving any of its stockholders, subsidiaries or affiliated
corporations in any capacity, and receiving a proper compensation therefor.
ARTICLE VI
Contracts, Loans, Checks, Deposits, Etc.
Section 1. All contracts and agreements authorized by the Board of
Directors, and all checks, drafts, bills of exchange or other orders for the
payment of money, issued in the name of the corporation, shall be signed by
such person or persons and in such manner as may from time to time be
designated by the Board of Directors, which designation may be general or
confined to specific instances; and unless so designated by the Board of
Directors or in these bylaws, no officer, agent or employee shall have any
power or authority to bind the corporation by any contract or engagement or to
pledge its credit or to render it liable pecuniarily for any purpose or for any
amount.
Section 2. No loan shall be contracted on behalf of the corporation, and
no evidence of indebtedness shall be issued in its name, unless authorized by
the Board of Directors. Such authorization may be general or confined to
specific instances. Loans so authorized by the Board of Directors may be
effected at any time for the corporation from any bank, trust company or other
institution, or from any firm, corporation or individual. All bonds,
debentures, notes and other obligations or evidences of indebtedness of the
corporation issued for such loans shall be made, executed and delivered as the
Board of Directors shall authorize. When so authorized by the Board of
Directors any part of or all the properties, including contract rights, assets,
business or good will of the corporation, whether then owned or thereafter
acquired, may be mortgaged, pledged, hypothecated or conveyed or assigned in
trust as security for the payment of such
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bonds, debentures, notes and other obligations or evidences of indebtedness of
the corporation, and of the interest thereon, by instruments executed and
delivered in the name of the corporation.
Section 3. All funds of the corporation not otherwise employed shall be
deposited from time to time to the credit of the corporation in such banks,
trust companies or other depositaries as the Board of Directors may select.
The Board of Directors may make such special rules and regulations with respect
to such bank accounts, not inconsistent with the provisions of these bylaws, as
it may deem expedient. For the purpose of deposit and for the purpose of
collection for the account of the corporation, checks, drafts and other orders
for the payment of money which are payable to the order of the corporation
shall be endorsed, assigned and delivered by such person or persons and in such
manner as may from time to time be designated by the Board of Directors.
Section 4. Unless otherwise provided by resolution adopted by the Board
of Directors, the president or any vice president may from time to time appoint
an attorney or attorneys, or an agent or agents, to exercise in the name and on
behalf of the corporation the powers and rights which the corporation may have
as the holder of stock or other securities in any other corporation to vote or
to consent in respect of such stock or other securities; and the president or
any vice president may instruct the person or persons so appointed as to the
manner of exercising such powers and rights and the president or any vice
president may execute or cause to be executed in the name and on behalf of the
corporation and under its corporate seal, or otherwise, all such written
proxies, powers of attorney or other written instruments as he may deem
necessary in order that the corporation may exercise such powers and rights.
ARTICLE VII
Shares and Their Transfer
Section 1. Every stockholder shall be entitled to have a certificate
certifying the number of shares of stock of the corporation owned by him,
signed by, or in the name of the corporation by the president or a vice
president and by the treasurer or an assistant treasurer, or the secretary or
an assistant secretary of the corporation (except that when any such
certificate is countersigned by a transfer agent other than the corporation or
its employee the signatures of any such officers may be facsimiles). If the
corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the designation, 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
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corporation shall issue to represent such class or series of stock, provided
that, except in the case of restrictions on transfers of securities which are
required to be noted on the certificate, 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 of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Section 2. 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 to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Section 3. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation, subject to the provisions of Section 1 above, to issue
a new certificate to the person entitled thereto, cancel the old certificate
and record the transaction upon its books.
Section 4. 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 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. 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 adjournment meeting.
Section 5. The corporation shall be entitled to recognize
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the exclusive right of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, and to hold liable for calls
and assessments a person registered on its books as the owner of shares, and
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by the laws
of Delaware.
ARTICLE VIII
General Provisions
Section 1. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
Section 2. The corporate seal shall be in such form or forms as from time
to time may be adopted by the Board of Directors.
ARTICLE IX
Amendments
Section 1. These bylaws may be altered or repealed at any regular meeting
of the stockholders or of the Board of Directors or at any special meeting of
the stockholders or of the Board of Directors if notice of such alteration or
repeal be contained in the notice of such special meeting.
ARTICLE X
Indemnification
Section 1. The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as the
same may be amended and supplemented, indemnify any and all persons whom it
shall have power to indemnify under said section from and against any and all
of the expenses, liabilities, or other matters referred to in or covered by
said section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which such indemnified person may be entitled
under any Bylaw, agreement, 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, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors, and administrators of such a person.
Section 2. To the fullest extent that the General Corporation Law of the
State of Delaware as it exists on the date
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hereof or as it my hereafter be amended permits the limitation or elimination
of the liability of directors, no director of this Corporation shall be liable
to this Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director. No amendment to or repeal of this Article shall
apply to or have any effect on the liability or alleged liability of any
director of this Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal.
