<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
KOLL REAL ESTATE GROUP, INC.
(Exact name of registrant as specified in its charger)
DELAWARE 02-0426634
(State of incorporation or organization) (IRS Employer Identification No.)
4343 VON KARMAN AVENUE,
NEWPORT BEACH, CALIFORNIA 92660
(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
----------------------------- ------------------------------
Common Stock, $0.05 par value Nasdaq National Market
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
(Title of Class)
<PAGE>
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
This Exchange Act Registration Statement relates to the registration with
the Securities and Exchange Commission of shares of Common Stock, par value
$0.05 per share (the "Common Stock"), of Koll Real Estate Group, Inc., a
Delaware corporation (the "Exchange Act Registration"). The description of the
Common Stock to be registered hereunder set forth under the caption "Description
of the Common Stock" at page 105 of Amendment No. 1 of the Company's
Registration Statement on Form S-4 originally filed with the Securities and
Exchange Commission (the "Commission") on February 20, 1997 and amended on April
10, 1997, Registration No. 333-22121 (the "Securities Act Registration
Statement") is incorporated herein by this reference.
ITEM 2. EXHIBITS.
2.1 The following documents are included as Exhibits to this Exchange Act
Registration Statement or, as indicated, are incorporated herein by this
reference as set forth from documents filed with the Commission pursuant to the
Securities Act of 1933, as amended, or the Securities and Exchange Act of 1934,
as amended:
3.01 Restated Certificate of Incorporation of the Registrant, incorporated by
reference to Exhibit 3.01 to the Registrant's Annual Report on Form 10-K for
1992.
3.02 Amended By-Laws of the Registrant, incorporated by reference to Exhibit
3.02 to the Registrant's Annual Report on Form 10-K for 1992.
4.01 Form of Certificate of the Registrant's Common Stock registered hereunder.*
4.02 Proposed Amended and Restated Certificate of Incorporation of the
Registrant to be implemented upon the effectiveness of the Recapitalization
(as defined in the Securities Act Registration Statement).*
4.03 Proposed Amended and Restated By-Laws of the Registrant to be implemented
upon the effectiveness of the Recapitalization (as defined in the Securities
Act Registration Statement).*
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* Filed herewith
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities and Exchange
Act of 1934, the Registrant has duly caused this Exchange Act Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized.
KOLL REAL ESTATE GROUP, INC.
(Registrant)
Dated: April 16, 1997 By: /s/ RAYMOND J. PACINI
-----------------------------------------
Raymond J. Pacini
Executive Vice President and
Chief Financial Officer
<PAGE>
<TABLE>
<CAPTION>
KOLL
COMMON STOCK REAL ESTATE COMMON STOCK
NUMBER KOLL GROUP SHARES
<S> <C> <C> <C>
INCORPORATED UNDER
THE LAWS OF SEE REVERSE FOR
THE STATE CERTAIN DEFINITIONS
OF DELAWARE CUSIP 500434 30 3
</TABLE>
THIS CERTIFIES THAT
IS THE RECORD HOLDER OF
FULLY PAID AND NONASSESSABLE SHARES OF THE COMMON STOCK, $.05 PAR VALUE, OF
KOLL REAL ESTATE GROUP, INC.
transferable on the books of the Corporation in person or by duly authorized
attorney upon surrender of this Certificate properly endorsed. This Certificate
is not valid unless countersigned and registered by the Transfer Agent and
Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signature of
its duly authorized officer.
CERTIFICATE OF STOCK
Dated:
[SEAL]
SECRETARY CHAIRMAN OF THE BOARD
AMERICAN BANK NOTE COMPANY
3504 ATLANTIC AVENUE
SUITE 12
LONG BEACH, CA 90807
(882) 959-2333
(FAX) (662) 425-7480
APR 15, 1997 fm
050072fc
42X
NEW
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The Corporation will furnish without charge to each stockholder who so
requests a statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock of the
corporation or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights. Such requests shall be made to
the Corporation's Secretary at the principal office of Corporation.
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:
TEN COM -- as tenants in common
UNIF GIFT MIN ACT -- ____Custodian____
TEN ENT -- as tenants by the
entrance
under Uniform Gifts to Minors
JT TEN -- as joint tenants with
right
Act ______________
of surviorship and not
as
UNIF TRF MIN ACT -- ____Custodian____
tenants in
common
____under Uniform Transfers
to Minors Act____
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, ______________hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER
IDENTIFYING NUMBER OF
ASSIGNEE
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Shares of the common 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
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X
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X
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NOTICE: THE SIGNATURES TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULATE,
WITHOUT ALTERATION OR ENLARGEMENT
OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED
BY
- -------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED
BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND DIRECT
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UNIONS WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM,
PURUSANT TO B.E.O. RULE 17AS-18.
<PAGE>
PROPOSED
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KOLL REAL ESTATE GROUP, INC.
PURSUANT TO SECTION 245 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
KOLL REAL ESTATE GROUP, INC. (the "Corporation"), a corporation organized
and existing under the General Corporation Law of the State of Delaware (the
"General Corporation Law"), hereby certifies as follows:
1. The name of the Corporation is Koll Real Estate Group, Inc. The
Corporation was originally incorporated under the name "Henley Newco Inc." The
name of the Corporation was changed from "Henley Newco Inc." to "The Henley
Group, Inc." pursuant to a Certificate of Amendment to the Certificate of
Incorporation of the Corporation filed with the Secretary of State of the State
of Delaware (the "Secretary of State") on December 29, 1988, and the name of the
Corporation was further changed from "The Henley Group, Inc." to "Henley
Properties Inc." pursuant to a Certificate of Ownership and Merger of the
Corporation filed with the Secretary of State on December 29, 1989.
2. The name of the Corporation was further changed from "Henley Properties
Inc." to "The Bolsa Chica Company," and the capitalization increased to
900,000,000 shares, of which 750,000,000 shares are Common Stock, par value
$0.05 per share and 150,000,000 shares are Preferred Stock, par value $0.01 per
share, all pursuant to a Certificate of Amendment to Restated Certificate of
Incorporation of the Corporation filed with the Secretary of State on July 16,
1992.
3. The name of the Corporation was further changed from "The Bolsa Chica
Company" to "Koll Real Estate Group, Inc." pursuant to a Certificate of
Ownership and Merger merging Koll Real Estate Group, Inc. into the Bolsa Chica
Company filed with the Secretary of State on September 13, 1993.
4. The address of the registered office of the Corporation was changed from
"229 South Street, in the City of Dover, County of Kent" to "32 Loockerman
Square, Suite L-100, City of Dover, County of Kent" pursuant to a Certificate of
Change of Address of Registered Office and of Registered Agent filed with the
Secretary of State on October 27, 1989.
5. A Certificate of Designations, Preferences and Relative, Participating,
Optional and Other Special Rights of Series A Convertible Redeemable Preferred
Stock and Qualifications, Limitations and Restrictions Thereof was filed with
the Secretary of State on July 16, 1992, the terms of which are included in this
Restated Certificate of Incorporation.
6. The date of filing of the original Certificate of Incorporation of the
Corporation with the Secretary of State was September 20, 1988.
7. This Amended and Restated Certificate of Incorporation was duly adopted
in accordance with Section 245 of the General Corporation Law by the Board of
Directors of the Corporation.
8. The text of the Restated Certificate of Incorporation of the Corporation
as heretofore amended and/or supplemented, is hereby amended and restated to
read in its entirety as herein set forth:
FIRST: The name of the Corporation is Koll Real Estate Group, Inc. (the
"Corporation").
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SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1013 Centre Road, in the City of Wilmington, County of
Newcastle. The name of its registered agent at that address is CSC Corporation,
Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The Corporation shall have the authority to issue one class of
stock. The total number of shares of stock which the Corporation shall have the
authority to issue is 18 million shares of Common Stock, par value $0.05 per
share (the "Common Stock").
FIFTH: Effective upon the filing of this amendment to the Restated
Certificate of Incorporation, the Class A Common Stock, Class B Common Stock and
Series A Convertible Preferred Stock shall be reclassified and combined to
create one class and series of stock designated "Common Stock." Effective
immediately upon the filing of this amendment to the designated "Common Stock."
Effective immediately upon the filing of this amendment to the Restated
Certificate of Incorporation, each outstanding share of Class A Common Stock
shall be automatically reclassified to be one (1) share of Common Stock and each
outstanding share of Series A Convertible Preferred Stock shall be automatically
reclassified to be one and three quarter (1.75) shares of Common Stock.
Effective on the date of the filing of this amendment to the restated
Certificate of Incorporation, and immediately following the effectiveness of the
combination of the Class A Common Stock, Class B Common Stock and Series A
Preferred Stock, the resulting outstanding shares of Common Stock shall be
reverse split so that each 100 shares of outstanding Common Stock shall be
automatically reclassified into one share of Common Stock. The Company shall not
issue, and no stockholder of the Company shall be deemed to hold, fractional
shares of Common Stock as a result of the above described capital stock
combination and reverse stock split. Instead, the Company's exchange agent will
aggregate all such fractional shares of Common Stock that would otherwise result
from the above described capital stock combination and reverse stock split and
sell such aggregated shares of Common Stock, rounded to the nearest whole share,
as whole shares, in an orderly manner. Upon completion of such sales,
stockholders who would otherwise have held such fractional shares of Common
Stock, will receive in lieu thereof, the cash proceeds from such sales (without
interest) in amounts proportionate to the fractional shares of Common Stock
which such stockholders would otherwise have held. The designations and the
powers, preferences and rights, and qualifications, limitations or restrictions
thereof, of each share of Common Stock shall be governed by the follow:
(i) Identical Rights. All shares of Common Stock shall be identical and
shall entitle the holders thereof to the same rights and privileges.
(ii) Voting Rights. On all matters submitted to the Corporation's
stockholders, the holders of Common Stock shall be entitled to one vote per
share.
(iii) Dividend Rights. When and as dividends or other distributions are
declared, whether in cash, in property or in securities of the Corporation,
the holders of shares of Common Stock shall be entitled to share equally,
share for share, in such dividends or distributions.
(iv) Stock Splits. If the Corporation shall in any manner subdivide,
split or combine the outstanding shares of Common Stock, each share of
outstanding Common Stock shall be proportionately subdivided, split or
combined.
(v) No Charge. The issuance of certificates representing shares of
Common Stock in exchange for outstanding certificates of Class A Common
Stock or Series A Preferred Stock shall be made without charge to the
holders of such certificates, PROVIDED that the Corporation shall not be
required to pay any tax which may be payable in respect of any transfer
involving the issuance and delivery of any certificate in a name other than
that of the holder of record of such shares of Class A Common Stock or
Series A Preferred Stock exchanged.
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SIXTH: Intentionally Omitted.
SEVENTH: The duration of the Corporation is to be perpetual.
EIGHTH: (a) The number of directors of the Corporation shall be determined
from time to time in the manner described in the Bylaws. Each director shall
serve for a term ending on the next annual meeting following the meeting at
which such director was elected, or on such later date as such director's
successor shall have been elected and qualified.
(b) Newly created directorships resulting from any increase in the number of
directors and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled by the
affirmative vote of a majority of the remaining directors then in office, even
if less than a quorum of the Board of Directors, or by a sole remaining
director. Any director elected in accordance with the preceding sentence shall
hold office until the next annual meeting of stockholders and until such
director's successor shall have been duly elected and qualified. No decrease in
the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
(c) Any director may be removed from office, with or without cause, by the
affirmative vote of the holders of a majority of the voting power of the then
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (the "Voting Stock"), voting together as
a single class."
(d) Intentionally Omitted
NINTH: Special meetings of stockholders may be called either (i) by the
Board of Directors or by the Chief Executive Officer pursuant to a resolution
approved by a majority of the then authorized number of directors of the
Corporation (as determined in accordance with the By-Laws) or (ii) by the
holders of capital stock of the Company representing at least ten percent (10%)
of the outstanding shares of capital stock of the Company entitled to vote in
the election of directors.
TENTH: Intentionally Omitted.
ELEVENTH: Unless and except to the extent that the By-Laws of the
Corporation shall so require, the election of directors of the Corporation need
not be by written ballot.
TWELFTH: No contract or other transaction of the Corporation shall be void,
voidable, fraudulent or otherwise invalidated, impaired or affected, in any
respect, by reason of the fact that any one or more of the officers, directors
or stockholders of the Corporation shall individually be party or parties
thereto or otherwise interested therein, or shall be officers, directors or
stockholders of any other corporation or corporations which shall be party or
parties thereto or otherwise interested therein; PROVIDED that such contract or
otherwise transactions be duly authorized or ratified by the Board of Directors,
with the assenting vote of a majority of the disinterested directors then
present, or, if only one such is present, with his assenting vote.
THIRTEENTH: The Board of Directors may from time to time make, amend,
supplement or repeal any By-Laws; PROVIDED, however, that the stockholders may
change or repeal any By-Law adopted by the Board of Directors; and PROVIDED,
FURTHER, that no amendment or supplement to the By-Laws adopted by the Board of
Directors shall vary or conflict with any amendment or supplement adopted by the
stockholders.
FOURTEENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated 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.
3
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FIFTEENTH: (a) A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for beach 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 an
improper personal benefit.
(b)(1) RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a part to or is 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 the
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, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action or inaction in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
employee or agent, 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 then said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorney's fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators;
PROVIDED, HOWEVER, that except as provided in this paragraph (b), the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this paragraph (b)
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; PROVIDED, HOWEVER, that, if the Delaware General
Corporation Law requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director of officer of the Corporation (and
not in any other capacity in which service was or is rendered by such person
while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a proceeding,
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation may, by action if
its Board of Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
(2) RIGHT OF CLAIMANT TO BRING SUIT. If a claim under subparagraph (b)(1)
is not paid in full by the Corporation within 30 days after a written claim has
been received by the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by
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the Corporation (including its Board of Directors, independent legal counsel, or
its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(3) NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this paragraph (b) shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Amended and Restated Certificate of Incorporation, By-Laws,
agreement, vote of stockholders or disinterested directors or otherwise.
(4) INSURANCE. The Corporation may maintain insurance, as its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprises
against any such 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.
SIXTEENTH: The Corporation expressly elects not to be governed by Section
203 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the undersigned, being a duly authorized Executive Vice
President and Chief Financial Officer of the Corporation, for the purpose of
amending and restating the Restated Certificate of Incorporation of the
Corporation pursuant to Section 245 of the General Corporation Law, does make
and file this Certificate, hereby declaring and certifying that the facts herein
stated are true, and accordingly has hereunto set his hand, this day of
, 1997.
--------------------------------------
Raymond J. Pacini
Executive Vice President and
Chief Financial Officer
5
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PROPOSED
AMENDED AND RESTATED BY-LAWS
OF
THE KOLL REAL ESTATE GROUP, INC.
ARTICLE I
OFFICES
Section 1. DELAWARE OFFICE. The office of The Koll Real Estate Group, Inc.
(the "Corporation") within the State of Delaware shall be in the City of
Wilmington, County of Newcastle.
Section 2. OTHER OFFICES. The Corporation may also have an office or
offices and keep the books and records of the Corporation, except as otherwise
may be required by law, in such other place or places, either within or without
the State of Delaware, as the Board of Directors of the Corporation (the
"Board") may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of holders of shares of capital
stock of the Corporation shall be held at the office of the Corporation in the
State of Delaware or at such other place, within or without the State of
Delaware, as may from time to time be fixed by the Board or specified or fixed
in the respective notices or waivers of notice thereof.
Section 2. ANNUAL MEETINGS. An annual meeting of stockholders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before the meeting (an "Annual Meeting") shall be
held at 9:00 a.m. on the first Wednesday of May of each year or on such other
date and at such other time as may be fixed by the Board. If the Annual Meeting
shall not be held on the day designated, the Board shall call a special meeting
of stockholders as soon as practicable for the election of directors.
Section 3. SPECIAL MEETINGS. Special meetings of stockholders, unless
otherwise provided by law, may be called at any time by the Board pursuant to a
resolution adopted by a majority of the then authorized number of directors (as
determined in accordance with Section 2 of Article III of these By-Laws), by the
Chief Executive Officer or by holders of capital stock of the Company
representing at least ten percent (10%) of the outstanding shares of capital
stock of the Company entitled to vote in the election of directors. Any such
call must specify the matter or matters to be acted upon at such meeting and
only such matter or matters shall be acted upon thereat.
Section 4. NOTICE OF MEETINGS. Except as otherwise may be required by law,
notice of each meeting of stockholders, whether an Annual Meeting or a special
meeting, shall be in writing, shall state the purpose or purposes of the
meeting, the place, date and hour of the meeting and, unless it is an Annual
Meeting, shall indicate that the notice is being issued by or at the direction
of the person or persons calling the meeting, and a copy thereof shall be
delivered or sent by mail, not less than 10 or more than 60 days before the date
of said meeting, to each stockholder entitled to vote at such meeting. If
mailed, such notice shall be directed to such stockholder at his address as it
appears on the stock records of the Corporation, unless he shall have filed with
the Secretary a written request that notices to him be mailed to some other
address, in which case it shall be directed to him at such other address. Notice
of an adjourned meeting need not be given if the time and place to which the
meeting is to be adjourned was announced at the
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meeting at which the adjournment was taken, unless (i) the adjournment is for
more than 30 days or (ii) the Board shall fix a new record date for such
adjourned meeting after the adjournment.
Section 5. QUORUM. At each meeting of stockholders of the Corporation, the
holders of shares having a majority of the voting power of the capital stock of
the Corporation issued and outstanding and entitled to vote thereat shall be
present or represented by proxy to constitute a quorum for the transaction of
business, except as otherwise provided by law.
Section 6. ADJOURNMENTS. In the absence of a quorum at any meeting of
stockholders or any adjournment or adjournments thereof, holders of shares
having a majority of the voting power of the capital stock present or
represented by proxy at the meeting may adjourn the meeting from time to time
until a quorum shall be present or represented by proxy. At any such adjourned
meeting at which a quorum shall be present or represented by proxy, any business
may be transacted which might have been transacted at the meeting as originally
called if a quorum had been present or represented by proxy thereat.
Section 7. ORDER OF BUSINESS. (a) At any Annual Meeting, only such
business shall be conducted as shall have been brought before the Annual Meeting
(i) by or at the direction of the Board of Directors or (ii) by any stockholder
who complies with the procedures set forth in this Section 7.
(b) For business properly to be brought before an Annual Meeting by a
stockholder, the stockholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation. To be timely, a stockholder's
notice must be delivered to or mailed and received at the principal executive
offices of the Corporation not less than 30 days nor more than 60 days prior to
the Annual Meeting; PROVIDED, HOWEVER, that in the event that less than 40 days'
notice or prior public disclosure of the date of the Annual Meeting is given or
made to stockholders, notice by the stockholder to be timely must be received
not later than the close of business on the tenth day following the day on which
such notice of the date of the Annual Meeting was mailed or such public
disclosure was made. To be in proper written form, a stockholder's notice to the
Secretary shall set forth in writing as to each matter the stockholder proposes
to bring before the Annual Meeting: (i) a brief description of the business
desired to be brought before the Annual Meeting and the reasons for conducting
such business at the Annual Meeting; (ii) the name and address, as they appear
on the Corporation's books, of the stockholder proposing such business; (iii)
the class and number of shares of the Corporation which are beneficially owned
by the stockholder; and (iv) any material interest of the stockholder in such
business. Notwithstanding anything in these By-Laws to the Contrary, no business
shall be conducted at an Annual Meeting except in accordance with the procedures
set forth in this Section 7. The chairman of an Annual Meeting shall, if the
facts warrant, determine and declare to the Annual Meeting that business was not
properly brought before the Annual Meeting in accordance with the provisions of
this Section 7 and, if he should so determine, he shall so declare to the Annual
Meeting and any such business not properly brought before the Annual Meeting
shall not be transacted.
Section 8. VOTING. Except as otherwise provided in the Amended and
Restated Certificate of Incorporation, as amended from time to time (the
"Certificate of Incorporation") or in a resolution of the Board of Directors
adopted pursuant to the Certificate of Incorporation establishing a series of
Preferred Stock of the Corporation ("Preferred Stock") or a class of Common
Stock of the Corporation having special, limited or no voting rights, at each
meeting of stockholders, every stockholder of the Corporation shall be entitled
to one vote for every share of capital stock standing in his name on the stock
records of the Corporation (i) at the time fixed pursuant to Section 6 of
Article VII of these By-Laws as the record date for the determination of
stockholders entitled to vote at such meeting, or (ii) if no such record date
shall have been fixed, then at the close of business on the day next preceding
the day on which notice thereof shall be given. At each meeting of stockholders,
all matters (except as otherwise provided in Section 3 of Article III of these
By-Laws and except in cases where a larger vote is required by law or by the
Certificate of Incorporation of the Corporation or these By-Laws) shall be
decided by a majority of the
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votes cast at such meeting by the holders of shares of capital stock present or
represented by proxy and entitled to vote thereon, a quorum being present.
Section 9. INSPECTORS. For each election of directors by the stockholders
and in any other case in which it shall be advisable, in the opinion of the
Board, that the voting upon any matter shall be conducted by inspectors of
election, the Board shall appoint two inspectors of election. If, for any such
election of directors or the voting upon any such other matter, any inspector
appointed by the Board shall be unwilling or unable to serve, or if the Board
shall fail to appoint inspectors, the chairman of the meeting shall appoint the
necessary inspector or inspectors. The inspectors so appointed, before entering
upon the discharge of their duties, shall be sworn faithfully to execute the
duties of inspectors with strict impartiality, and according to the best of
their ability, and the oath so taken shall be subscribed by them. Such
inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each of the shares represented
at the meeting, the existence of a quorum, and the validity and effect of
proxies, and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the result, and do such acts
as are proper to conduct the election or vote with fairness to all stockholders.
On request of the chairman of the meeting or any stockholder entitled to vote
thereat, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and shall execute a certificate of any
fact found by them. No director or candidate for the office of director shall
act as an inspector of election of directors. Inspectors need not be
stockholders.
ARTICLE III
DIRECTORS
Section 1. POWERS. The business of the Corporation shall be managed under
the direction of the Board. The Board may exercise all such authority and powers
of the Corporation and do all such lawful acts and things as are not by law or
otherwise directed or required to be exercised or done by the stockholders.
Section 2. NUMBER, ELECTION AND TERMS. The authorized number of directors
may be determined from time to time by a vote of a majority of the then
authorized number of directors or by the affirmative vote of the holders of at
least a majority of the voting power of the then outstanding shares of capital
stock of the corporation entitled to vote generally in the election of
directors, voting together as a single class; PROVIDED, HOWEVER, that such
number initially shall be ten (10). Except as otherwise provided in the
Certificate of Incorporation, newly created directorships resulting from any
increase in the number of directors and any vacancies on the Board resulting
from death, resignation, disqualification, removal or other cause shall be
filled by the affirmative vote of a majority of the remaining directors then in
office, even if less than a quorum of the Board, or by a sole remaining
director. Any director elected in accordance with the preceding sentence shall
hold office until the next Annual Meeting and until such director's successor
shall have been duly elected and qualified. No decrease in the number of
directors constituting the Board shall shorten the term of any incumbent
director.
Section 3. NOMINATIONS OF DIRECTORS; ELECTION. Nominations for the
election of directors may be made by the Board or a committee appointed by the
Board, or by any stockholder entitled to vote generally in the election of
directors who complies with the procedures set forth in this Section 3.
Directors shall be at least 21 years of age. Directors need not be stockholders.
At each meeting of stockholders for the election of directors at which a quorum
is present, the persons receiving a plurality of the votes cast shall be elected
directors. All nominations by stockholders shall be made pursuant to timely
notice in proper written form to the Secretary of the Corporation. To be timely,
a stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 30 days nor more
than 60 days prior to the meeting; PROVIDED, HOWEVER, that in the event that
less than 40 days' notice or prior public disclosure of the date of the meeting
is given or made to stockholders, notice by the
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stockholder to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. To be in proper
written form, such stockholder's notice shall set forth in writing (i) as to
each person whom the stockholder proposes to nominate for election or reelection
as a director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended, including, without limitation, such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected; and (ii) as to the stockholder giving the notice, (x) the
name and address, as they appear on the Corporation's books, of such stockholder
and (y) the class and number of shares of the Corporation which are beneficially
owned by such stockholder. At the request of the Board of Directors, any person
nominated by the Board of Directors for election as a director shall furnish to
the Secretary of the Corporation the information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. In the event
that a stockholder seeks to nominate one or more directors, the Secretary shall
appoint two inspectors, who shall not be affiliated with the Corporation, to
determine whether a stockholder has complied with this Section 3. If the
inspectors shall determine that a stockholder has not complied with this Section
3, the inspectors shall direct the chairman of the meeting to declare to the
meeting that a nomination was not made in accordance with the procedures
prescribed by the By-Laws of the Corporation, and the chairman shall so declare
to the meeting and the defective nomination shall be disregarded.
Section 4. PLACE OF MEETINGS. Meetings of the Board shall be held at the
Corporation's office in the State of Delaware or at such other place, within or
without such State, as the Board may from time to time determine or as shall be
specified or fixed in the notice or waiver of notice of any such meeting.
Section 5. REGULAR MEETINGS. Regular meetings of the Board shall be held
in accordance with a yearly meeting schedule as determined by the Board; or such
meetings may be held on such other days and at such other times as the Board may
from time to time determine. Notice of regular meetings of the Board need not be
given except as otherwise required by these By-Laws.
Section 6. SPECIAL MEETINGS. Special meetings of the Board may be called
by the Chief Executive Officer and shall be called by the Secretary at the
request of any two of the other directors.
Section 7. NOTICE OF MEETINGS. Notice of each special meeting of the Board
(and of each regular meeting for which notice shall be required), stating the
time, place and purposes thereof, shall be mailed to each director, addressed to
him at his residence or usual place of business, or shall be sent to him by
telex, cable or telegram so addressed, or shall be given personally or by
telephone, on 24 hours' notice.
Section 8. QUORUM AND MANNER OF ACTING. The presence of at least a
majority of the authorized number of directors shall be necessary and sufficient
to constitute a quorum for the transaction of business at any meeting of the
Board. If a quorum shall not be present at any meeting of the Board, a majority
of 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. Except where a different vote is required or permitted by law or these
By-Laws or otherwise, the act of a majority of the directors present at any
meeting at which a quorum shall be present shall be the act of the Board. Any
action required or permitted to be taken by the Board may be taken without a
meeting if all the directors consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consents thereto by the
directors shall be filed with the minutes of the proceedings of the Board. Any
one or more directors may participate in any meeting of the Board by means of a
conference telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time. Participation
by such means shall be deemed to constitute presence in person at a meeting of
the Board.
Section 9. RESIGNATION. Any director may resign at any time by giving
written notice to the Corporation; PROVIDED, HOWEVER, that written notice to the
Board, the Chairman of the Board, the Chief Executive Officer or the Secretary
shall be deemed to constitute notice to the Corporation. Such
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resignation shall take effect upon receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, acceptance of such
resignation shall not be necessary to make it effective.
Section 10. REMOVAL OF DIRECTORS. Any director may be removed from office,
with or without cause, by the affirmative vote of a majority of the voting power
of all shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
Section 11. COMPENSATION OF DIRECTORS. The Board may provide for the
payment to any of the directors, other than officers or employees of the
Corporation, of a specified amount for services as director or member of a
committee of the Board, or of a specified amount for attendance at each regular
or special Board meeting or committee meeting, or of both, and all directors
shall be reimbursed for expenses of attendance at any such meeting; PROVIDED,
HOWEVER, that nothing herein contained shall be construed to preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV
COMMITTEES OF THE BOARD
Section 1. APPOINTMENT AND POWERS OF EXECUTIVE COMMITTEE. The Board may,
by resolution adopted by the affirmative vote of a majority of the authorized
number of directors, designate an Executive Committee of the Board which shall
consist of such number of members as the Board shall determine. Except as
provided by Delaware law, during the interval between the meetings of the Board,
the Executive Committee shall possess and may exercise all of the powers of the
Board in the management and direction of all the business and affairs of the
Corporation (except the matters hereinafter assigned to any other Committee of
the Board), in such manner as the Executive Committee shall deem in the best
interests of the Corporation in all cases in which specific directions shall not
have been given by the Board. A majority of the members of the Executive
Committee shall constitute a quorum for the transaction of business by the
committee and the act of a majority of the members of the committee present at a
meeting at which a quorum shall be present shall be the act of the committee.
Either the Chairman of the board, the Chief Executive Officer or the Chairman of
the Executive Committee may call the meetings of the Executive Committee.
Section 2. APPOINTMENT AND POWERS OF AUDIT COMMITTEE. The Board may, by
resolution adopted by the affirmative vote of a majority of the authorized
number of directors, designate an Audit Committee of the Board, which shall
consist of such number of members as the Board shall determine. The Audit
Committee shall (i) make recommendations to the Board as to the independent
accountants to be appointed by the Board; (ii) review with the independent
accountants the scope of their examination; (iii) receive the reports of the
independent accountants and meet with representatives of such accountants for
the purpose of reviewing and considering questions relating to their examination
and such reports; (iv) review, either directly or through the independent
accountants, the internal accounting and auditing procedures of the Corporation;
and (v) perform such other functions as may be assigned to it from time to time
by the Board. The Audit Committee may determine its manner of acting and fix the
time and place of its meetings, unless the Board shall otherwise provide. A
majority of the members of the Audit Committee shall constitute a quorum for the
transaction of business by the committee and the act of a majority of the
members of the committee present at a meeting at which a quorum shall be present
shall be the act of the committee.
Section 3. COMPENSATION COMMITTEE; OTHER COMMITTEES. The Board may, by
resolution adopted by the affirmative vote of a majority of the authorized
number of directors, designate members of the Board to constitute a Compensation
Committee and such other committees of the Board as the Board may determine.
Such committees shall in each case consist of such number of directors as the
Board may determine, and shall have and may exercise, to the extent permitted by
law, such powers as the Board may
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delegate to them, in the respective resolutions appointing them. Each such
committee may determine its manner of acting and fix the time and place of its
meetings, unless the Board shall otherwise provide. A majority of the members of
any such committee shall constitute a quorum for the transaction of business by
the committee and the act of a majority of the members of such committee present
at a meeting at which a quorum shall be present shall be the act of the
committee.
Section 4. ACTION BY CONSENT; PARTICIPATION BY TELEPHONE OR SIMILAR
EQUIPMENT. Unless the Board shall otherwise provide, any action required or
permitted to be taken by any committee may be taken without a meeting if all
members of the committee consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consents thereto by the
members of the committee shall be filed with the minutes of the proceedings of
the committee. Unless the Board shall otherwise provide, any one or more members
of any such committee may participate in any meeting of the committee by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other. Participation by
such means shall constitute presence in person at a meeting of the committee.
Section 5. CHANGES IN COMMITTEES; RESIGNATIONS; REMOVALS. The Board shall
have power, by the affirmative vote of a majority of the authorized number of
directors, at any time to change the members of, to fill vacancies in, and to
discharge any committee of the Board. Any member of any such committee may
resign at any time by giving notice to the Corporation; PROVIDED, HOWEVER, that
notice to the Board, the Chairman of the Board, the Chief Executive Officer, the
chairman of such committee or the Secretary shall be deemed to constitute notice
to the Corporation. Such resignation shall take effect upon receipt of such
notice or at any later time specified therein; and, unless otherwise specified
therein, acceptance of such resignation shall not be necessary to make it
effective. Any member of any such committee may be removed at any time, either
with or without cause, by the affirmative vote of a majority of the authorized
number of directors at any meeting of the Board called for that purpose.
ARTICLE V
OFFICERS
Section 1. NUMBER AND QUALIFICATION. The Corporation shall have such
officers as may be necessary or desirable for the business of the Corporation.
The elected officers of the Corporation shall be a Chairman of the Board, a
Chief Executive Officer, a Treasurer and Secretary, and such other persons
having such other titles and such other duties as the Board may prescribe. The
same person may hold more than one office. The Chairman of the Board and the
Chief Executive Officer shall be elected from among the directors. The Chief
Executive Officer may appoint one or more deputies, associates or assistant
officers, or such other agents as may be necessary or desirable for the business
of the Corporation. In case one or more deputies, associates or assistant
officers shall be appointed, the officer such appointee assists may delegate to
him the authority to perform such of the officer's duties as the officer may
determine.
Section 2. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Corporation; PROVIDED, HOWEVER, that notice to the Board,
the Chairman of the Board, the Chief Executive Officer or the Secretary shall be
deemed to constitute notice to the Corporation. Such resignation shall take
effect upon receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 3. REMOVAL. Any officer or agent may be removed, either with or
without cause, at any time, by the Board at any meeting called for that purpose;
PROVIDED, HOWEVER, that the Chief Executive Officer may remove any agent
appointed by him.
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Section 4. VACANCIES. Any vacancy among the officers, whether caused by
death, resignation, removal or any other cause, shall be filled in the manner
prescribed for election or appointment to such office.
Section 5. CHAIRMAN OF THE BOARD. The Chairman of the Board shall, if
present, preside at all meetings of the Board and, in the absence of the Chief
Executive Officer, at all meetings of the stockholders. The Chairman of the
Board shall perform the duties incident to the office of the Chairman of the
Board and all such other duties as are specified in these By-Laws or as shall be
assigned to the Chairman of the Board from time to time by the Board.
Section 6. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall, if
present, preside at all meetings of the stockholders. The Chief Executive
Officer shall have, under the control of the Board, general supervision and
direction of the business and affairs of the Corporation. The Chief Executive
Officer shall at all times see that all resolutions or determinations of the
Board are carried into effect. The Chief Executive Officer may from time to time
appoint, remove or change members of and discharge one or more advisory
committees, each of which shall consist of such number of persons (who may, but
need not, be directors or officers of the Corporation), and have such advisory
duties, as the Chief Executive Officer shall determine. The Chief Executive
Officer shall perform the duties incident to the office of the Chief Executive
Officer and all such other duties as are specified in these By-Laws or as shall
be assigned to the Chief Executive Officer from time to time by the Board.
Section 7. TREASURER. The Treasurer shall have charge and custody of, and
be responsible for, all funds and securities of the Corporation, shall keep full
and accurate accounts of receipts and disbursements in books belonging to the
Corporation, shall deposit all moneys and other valuables to the credit of the
Corporation in such depositories as may be designated pursuant to these By-Laws,
shall receive, and give receipts for, moneys due and payable to the Corporation
from any source whatsoever, shall disburse the funds of the Corporation and
shall render to all regular meetings of the Board, or whenever the Board may
require, an account of all the Treasurer's transactions as Treasurer. The
Treasurer shall, in general, perform all the duties incident to the office of
Treasurer and all such other duties as may be assigned to the Treasurer from
time to time by the Chief Executive Officer or such other officer to whom the
Treasurer reports.
Section 8. SECRETARY. The Secretary shall, if present, act as secretary
of, and keep the minutes of, all meetings of the Board, the Executive Committee
and other committees of the Board and the stockholders in one or more books
provided for that purpose, shall see that all notices are duly given in
accordance with these By-Laws and as required by law, shall be custodian of the
seal of the Corporation and shall affix and attest the seal to all documents to
be executed on behalf of the Corporation under its seal. The Secretary shall, in
general, perform all the duties incident to the office of Secretary and all such
other duties as may be assigned to the Secretary from time to time by the Chief
Executive Officer or such other officer to whom the Secretary reports.
Section 9. BONDS OF OFFICERS. If required by the Board, any officer of the
Corporation shall give a bond for the faithful discharge of such Officer's
duties in such amount and with such surety or sureties as the Board may require.
Section 10. COMPENSATION. The salaries of the officers shall be fixed from
time to time by the Compensation Committee of the Board; PROVIDED, HOWEVER, that
the Chief Executive Officer may fix or delegate to others the authority to fix
the salaries of any agents appointed by the Chief Executive Officer.
Section 11. OFFICERS OF OPERATING COMPANIES OR DIVISIONS. The Chief
Executive Officer shall have the power to appoint, remove, and prescribe the
terms of office, responsibilities, duties and salaries of, the officers of the
operating companies or divisions, other than those who are officers of the
Corporation.
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ARTICLE VI
CONTRACTS, CHECKS, LOANS, DEPOSITS, ETC.
Section 1. CONTRACTS. The Board may authorize any officer or officers,
agent or agents, in the name and on behalf of the Corporation, to enter into any
contract or to execute and deliver any instrument, which authorization may be
general, or confined to specific instances; and, unless so authorized by the
Board, no officer, agent or employee shall have any power or authority to bind
the Corporation by an contract or engagement or to pledge its credit or to
render it liable pecuniarily for any purpose or for any amount.
Section 2. CHECKS, ETC. All checks, drafts, bills of exchange or other
orders for the payment of money out of the funds of the Corporation, and all
notes or other evidences of indebtedness of the Corporation, shall be signed in
the name and on behalf of the Corporation in such manner as shall from time to
time be authorized by the Board, which authorization may be general or confined
to specific instances.
Section 3. LOANS. No loan shall be contracted on behalf of the
Corporation, and no negotiable paper shall be issued in its name, unless
authorized by the Board, which authorization may be general or confined to
specific instances. All bonds, debentures, notes and other obligations evidences
of indebtedness of the Corporation issued for such loans shall be made, executed
and delivered as the Board shall authorize.
Section 4. DEPOSITS. 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 depositors as may be selected by or in the
manner designated by the Board. The Board or its designees may make such special
rules and regulations with respect to such bank accounts, not inconsistent with
the provisions of the Certificate of Incorporation or these By-Laws, as they may
deem advisable.
ARTICLE VII
CAPITAL STOCK
Section 1. STOCK CERTIFICATES. Each stockholder shall be entitled to have,
in such form as shall be approved by the Board, a certificate or certificates
signed by the Chairman of the Board or the Chief Executive Officer, and by
either the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary (except that, when any such certificate is countersigned by a transfer
agent or registered by a registrar other than the Corporation or an employee of
the Corporation, the signatures of any such officers may be facsimiles, engraved
or printed), which may be sealed with the seal of the Corporation (which seal
may be a facsimile, engraved or printed), certifying the number of shares of
capital stock of the Corporation owned by such stockholder. In the event any
officer who has signed or whose facsimile signature has been placed upon any
such certificate shall have ceased to be such officer before such certificate is
issued, such certificate may be issued by the Corporation with the same effect
as if he were such officer at the date of its issue.
Section 2. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make or cause to be prepared or made, at least 10 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 of capital stock 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 10 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
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meeting for the duration thereof, and may be inspected by any stockholder of the
Corporation who is present.
Section 3. STOCK LEDGER. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 2 of this Article VII or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 4. TRANSFERS OF CAPITAL STOCK. Transfers of shares of capital
stock of the Corporation shall be made only on the stock ledger of the
Corporation by the holder of record thereof, by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the Corporation, or by the transfer agent of the Corporation, and only on
surrender of the certificate or certificates representing such shares, properly
endorsed or accompanied by a duly executed stock transfer power. The Board may
make such additional rules and regulations as it may deem advisable concerning
the issue and transfer of certificates representing shares of the capital stock
of the Corporation.
Section 5. LOST CERTIFICATES. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate, 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 his legal representative, 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 6. FIXING OF RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividends or other distributions or allotments of any rights, or entitled to
exercise any rights in respect to any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board may fix, in advance, a
record date, which shall not be more than 60 days nor less than 10 days before
the date of such meeting, nor more than 60 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 adjourned
meeting.
Section 7. BENEFICIAL OWNERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner, and 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 shares on the part of any other person, whether or not the Corporation
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VIII
FISCAL YEAR
The Corporation's fiscal year shall coincide with the calendar year.
ARTICLE IX
SEAL
The Corporation's seal shall be circular in form and shall include the words
"THE KOLL REAL ESTATE GROUP, INC., Delaware, 1988, Seal."
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ARTICLE X
WAIVER OF NOTICE
Whenever any notice is required by law, the Certificate of Incorporation or
these By-Laws to be given to any director, member of a committee or stockholder,
a waiver thereof in writing, signed by the person or persons entitled to such
notice, whether signed before or after the time stated in such written waiver,
shall be deemed equivalent to such notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when such person
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the grounds that the meeting is
not lawfully called or convened. Neither the business to be transacted at, nor
the purpose of, any meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
ARTICLE XI
AMENDMENTS
These By-Laws or any of them may be amended or supplemented in any respect
at any time, either (i) at any meeting of stockholders, provided that any
amendment or supplement proposed to be acted upon at any such meeting shall have
been described or referred to in the notice of such meeting; or (ii) at any
meeting of the Board, provided that any amendment or supplement proposed to be
acted upon at any such meeting shall have been described or referred to in the
notice of such meeting or an announcement with respect thereto shall have been
made at the last previous Board meeting, and PROVIDED FURTHER that no amendment
or supplement adopted by the Board shall vary or conflict with any amendment or
supplement adopted by the stockholders.
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