SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): January 29, 1998
APHTON CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 0-19122 95-3640931
(State of other (Commission File Number) (IRS Employer
jurisdiction of Identification
incorporation) Number)
80 S.W. 8th Street, Miami, Florida 33130-3047
(Address of principal executive offices including zip code)
Registrant's telephone number including area code: (305) 374-7338
<PAGE>
Item 5. Other Events
REINCORPORATION IN DELAWARE
On January 29, 1998, Aphton Corporation, a California corporation
("Aphton California"), completed a reincorporation (the "Reincorporation") in
Delaware through the merger of Aphton California with and into its wholly owned
subsidiary Aphton Corporation, a Delaware corporation ("Aphton Delaware" or the
"Company"), with Aphton Delaware being the surviving corporation. As of the
effective date of such merger (the "Effective Date"), Aphton California ceased
to exist. The Reincorporation effects only a change in domicile. It will not
result in any change of the name, business, management, employees, assets or
liabilities or trading symbol of the Company. Appropriate consents and approvals
were obtained for the reincorporation, including the approval of the
shareholders of Aphton California at a Special Meeting of shareholders of Aphton
California on November 5, 1997 and the approval of the sole stockholder of
Aphton Delaware.
Pursuant to the Agreement and Plan of Merger between the Aphton
Delaware and Aphton California, dated as of January 29, 1998, each outstanding
share of Aphton California's Common Stock, no par value, was automatically
converted into one share of Common Stock, par value $.001 per share, of the
Company. Each stock certificate representing issued and outstanding shares of
Aphton California's Common Stock represents the same number of shares of the
Company's Common Stock. In addition, each outstanding option or right to acquire
shares of Aphton California's Common Stock was converted into an option or right
to acquire an equal number of shares of the Company's Common Stock, under the
same terms and conditions as the original options or rights.
Item 7. Financial Statements and Exhibits
(c) Exhibits
2.1 Agreement and Plan of Merger of Aphton Corporation, a
Delaware corporation, and Aphton Corporation, a
California corporation, dated as of January 29, 1998.
3.1 Certificate of Incorporation of the Company.
3.2 Bylaws of the Company.
Item 8. Change in Fiscal Year
The fiscal year of the Company begins on February 1 of each year and
ends on January 31 of each year. This represents a change from the fiscal year
of Aphton California, which has been from May 1 to April 30 of each year. The
report covering the transition period will be filed on Form 10-K.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
APHTON CORPORATION
Date: January 30, 1998 By: /s/ Frederick W. Jacobs
--------------------------
Frederick W. Jacobs
Treasurer and Chief Accounting Officer
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
2.1 Agreement and Plan of Merger of Aphton
Corporation, a Delaware corporation, and
Aphton Corporation, a California corporation,
dated as of January 29, 1998.
3.1 Certificate of Incorporation of the Company.
3.2 Bylaws of the Company.
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF APHTON CORPORATION,
A DELAWARE CORPORATION,
AND
APHTON CORPORATION,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER, dated as of January 29, 1998 (the
"Agreement"), is between Aphton Corporation, a Delaware corporation ("Aphton
Delaware"), and Aphton Corporation, a California corporation ("Aphton
California"). Aphton Delaware and Aphton California are sometimes referred to
herein as the "Constituent Corporations."
RECITALS
A. Aphton Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 32,000,000
shares, $.001 par value, of which 30,000,000 shares are designated "Common
Stock" and 2,000,000 shares are designated "Preferred Stock." As of January 27,
1998, 1,000 shares of Common Stock were issued and outstanding, all of which are
held by Aphton California, and no shares of Preferred Stock were issued and
outstanding.
B. Aphton California is a corporation duly organized and existing
under the laws of the State of California and has an authorized capital of
20,000,000 shares, no par value, all of which are designated "Common Stock." As
of January 27, 1998, 14,187,217 shares of Common Stock were issued and
outstanding.
C. The Board of Directors of Aphton California has determined that,
for the purpose of effecting the reincorporation of Aphton California in the
State of Delaware, it is advisable and in the best interests of Aphton
California and its shareholders that Aphton California merge with and into
Aphton Delaware upon the terms and conditions herein provided.
D. The respective Boards of Directors and shareholders of Aphton
Delaware and Aphton California have approved this Agreement and the respective
Boards of Directors have directed that this Agreement be executed by the
undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, Aphton Delaware and Aphton California hereby agree,
subject to the terms and conditions hereinafter set forth, as follows:
I
MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California Corporations Code, Aphton
California shall be merged with and into Aphton Delaware (the "Merger"), the
separate existence of Aphton California shall cease and Aphton Delaware shall
survive the Merger and shall continue to be governed by the laws of the State of
Delaware, and Aphton Delaware shall be, and is herein sometimes referred to as,
the "Surviving Corporation," and the name of the Surviving Corporation shall be
Aphton Corporation.
1.2 Filing and Effectiveness. The Merger shall become effective when
the following actions shall have been completed:
(a) All of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof;
(b) An executed and acknowledged counterpart of this Agreement or
certificate of merger meeting the requirements of the Delaware General
Corporation Law shall have been filed with the Secretary of State of the
State of Delaware; and
(c) An executed counterpart of this Agreement or certificate of merger
meeting the requirements of the California Corporations Code shall have been
submitted to the Secretary of State of the State of California.
The date and time when the Merger shall become effective, as
aforesaid, is herein called the "Effective Date of the Merger."
1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of Aphton California shall cease and Aphton Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date of
the Merger, (ii) shall be subject to all actions previously taken by its and
Aphton California's Boards of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of Aphton California
in the manner as more fully set forth in Section 259 of the Delaware General
Corporation Law, (iv) shall continue to be subject to all of its debts,
liabilities and obligations as constituted immediately prior to the Effective
Date of the Merger, and (v) shall succeed, without other transfer, to all of the
debts, liabilities and obligations of Aphton California in the same manner as if
Aphton Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the Delaware General Corporation Law and the California
Corporations Code.
II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of
Aphton Delaware as in effect immediately prior to the Effective Date of the
Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.2 Bylaws. The Bylaws of Aphton Delaware as in effect immediately
prior to the Effective Date of the Merger shall continue in full force and
effect as the Bylaws of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
2.3 Directors and Officers. The directors and officers of Aphton
California immediately prior to the Effective Date of the Merger shall be the
directors and officers of the Surviving Corporation until their respective
successors shall have been duly elected and qualified or until as otherwise
provided by law, or the Certificate of Incorporation of the Surviving
Corporation or the Bylaws of the Surviving Corporation.
III
MANNER OF CONVERSION OF STOCK
3.1 Aphton California Common Stock. Upon the Effective Date of the
Merger, each share of Aphton California Common Stock, no par value, issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by the Constituent Corporations, the holder of such shares or any
other person, be changed and converted into and exchanged for one fully paid and
nonassessable share of Common Stock, $.001 par value, of the Surviving
Corporation.
3.2 Aphton California Employee Benefit Plans, Options, Warrants,
Convertible Securities. Upon the Effective Date of the Merger, the Surviving
Corporation shall assume and continue all employee benefit plans of Aphton
California. As of January 27, 1998, there are options, warrants, purchase rights
for or securities convertible into an aggregate of 2,022,300 shares of Common
Stock of Aphton California. Each outstanding and unexercised option, warrant or
other right to purchase Aphton California Common Stock or security convertible
into Aphton California Common Stock shall become an outstanding and unexercised
option, warrant or right to purchase the Surviving Corporation's Common Stock or
a security convertible into the Surviving Corporation's Common Stock on the
basis of one share of the Surviving Corporation's Common Stock for each share of
Aphton California Common Stock issuable pursuant to any such option, warrant,
stock purchase right or convertible security, on the same terms and conditions
and at an exercise price per share equal to the exercise price applicable to any
such Aphton California option, warrant, stock purchase right or convertible
security at the Effective Date of the Merger.
A number of shares of the Surviving Corporation's Common Stock shall
be reserved for issuance upon the exercise of options, warrants, stock purchase
rights or convertible securities equal to the number of shares of Aphton
California Common Stock so reserved immediately prior to the Effective Date of
the Merger.
3.3 Aphton Delaware Common Stock. Upon the Effective Date of the
Merger, each share of Common Stock, $.001 par value, of Aphton Delaware issued
and outstanding immediately prior thereto shall, by virtue of the Merger and
without any action by Aphton Delaware, the holder of such shares or any other
person, be canceled and returned to the status of authorized but unissued
shares.
3.4 Certificates. After the Effective Date of the Merger, each
outstanding certificate theretofore representing shares of Aphton California
Common Stock shall be deemed for all purposes to represent the same number of
whole shares of the Surviving Corporation's Common Stock.
IV
GENERAL
4.1 Covenants of Aphton Delaware. Aphton Delaware covenants and agrees
that it will, on or as soon as practicable following the Effective Date of the
Merger:
(a) Qualify to do business as a foreign corporation in the State of
California and in connection therewith irrevocably appoint an agent for
service of process as required under the provisions of Section 2105 of the
California Corporations Code;
(b) File any and all documents with the California Franchise Tax Board
necessary for the assumption by Aphton Delaware of all of the franchise tax
liabilities of Aphton California and for obtaining a tax clearance
certificate; and
(c) Take such other actions as may be required by the California
Corporations Code.
4.2 Further Assurances. From time to time, as and when required by
Aphton Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Aphton California such deeds and other instruments, and
there shall be taken or caused to be taken by Aphton Delaware and Aphton
California such further and other actions, as shall be appropriate or necessary
in order to vest or perfect in or conform of record or otherwise by Aphton
Delaware the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of Aphton
California and otherwise to carry out the purposes of this Agreement, and the
officers and directors of Aphton Delaware are fully authorized in the name and
on behalf of Aphton California or otherwise to take any and all such action and
to execute and deliver any and all such deeds and other instruments.
4.3 Abandonment. At any time before the filing of this Agreement with
the Secretary of State of the State of Delaware, this Agreement may be
terminated and the Merger may be abandoned for any reason whatsoever by the
Board of Directors of either Aphton California or Aphton Delaware, or both,
notwithstanding the approval of this Agreement by the shareholders of Aphton
California or by the sole stockholder of Aphton Delaware, or by both.
4.4 Amendment. The Boards of Directors of the Constituent Corporations
may amend this Agreement at any time prior to the filing of this Agreement with
the Secretaries of State of the States of California and Delaware, provided that
an amendment made subsequent to the adoption of this Agreement by the
shareholders of either Constituent Corporation shall not: (1) alter or change
the amount or kind of shares, securities, cash, property and/or rights to be
received in exchange for or on conversion of all or any of the shares of any
class or series thereof of such Constituent Corporation, (2) alter or change any
term of the Certificate of Incorporation of the Surviving Corporation to be
effected by the Merger, (3) alter or change any of the terms and conditions of
this Agreement if such alteration or change would adversely affect the holders
of any class of shares or series thereof of such Constituent Corporation, or (4)
alter or change any of the principal terms of this Agreement.
4.5 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is located at Corporation Trust Center,
1209 Orange Street, in the city of Wilmington, County of New Castle, 19801 and
The Corporation Trust Company is the registered agent of the Surviving
Corporation at such address.
4.6 Expenses. Each party to the transactions contemplated by this
Agreement shall pay its own expenses, if any, incurred in connection with such
transactions.
4.7 Agreement. Executed copies of this Agreement will be on file at
the principal place of business of the Surviving Corporation at 80 S.W. 8th
Street, Suite 2160, Miami, Florida 33130-3047 and copies thereof will be
furnished to any shareholder of either Constituent Corporation, upon request and
without cost.
4.8 Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
California Corporations Code.
4.9 Counterparts. In order to facilitate the filing and recording of
this Agreement, the same may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Boards of Directors of Aphton Delaware and Aphton California,
is hereby executed on behalf of each of such two corporations and attested by
their respective officers thereunto duly authorized.
APHTON CORPORATION
a Delaware corporation
By: /s/ Sue A. Russell
-----------------------------
Name: Sue A. Russell
Title: Assistant Secretary
APHTON CORPORATION
a California corporation
By: /s/ Sue A. Russell
-----------------------------
Name: Sue A. Russell
Title: Assistant Secretary
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
APHTON CORPORATION
--------------
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, as from time to time amended, do
hereby certify as follows:
FIRST: The name of the Corporation is
APHTON CORPORATION
SECOND: The registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington,
County of New Castle, 19801, Delaware. The name of its registered agent in the
State of Delaware at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage, directly or
indirectly, in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware as from
time to time in effect.
FOURTH: The total authorized capital stock of the Corporation shall be
32,000,000 shares consisting of:
1. 30,000,000 shares of Common Stock, par value $.001; and
2. 2,000,000 shares of Preferred Stock, par value $.001.
The Board of Directors is authorized, subject to any limitations
prescribed by law, to provide for the issuance of shares of Preferred Stock in
series and, by filing a certificate pursuant to the applicable law of the State
of Delaware, to establish from time to time the number of shares to be included
in each such series, and to fix the designation, powers, preferences and rights
of the shares of each such series and any qualifications, limitations or
restrictions thereon.
FIFTH: The name and mailing address of the incorporator is as follows:
Name Mailing Address
Josh DeRienzis 1155 Avenue of the Americas
New York, New York 10036
SIXTH: BOARD OF DIRECTORS
1. The business of the Corporation shall be under the direction of a
Board of Directors except as otherwise provided by law. In addition to the
powers and authority expressly conferred upon them by statute or by this
Certificate of Incorporation or the Bylaws of the Corporation, the directors are
hereby empowered to exercise all such powers and do all such acts and things as
may be exercised or done by the Corporation. Election of Directors need not be
by written ballot unless the Bylaws of the Corporation shall so provide.
2. Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, the number of
directors constituting the entire Board of Directors shall be fixed from time to
time exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the entire Board of Directors (excluding, for the purpose of
determining the number of directors constituting the entire Board, any vacancies
in the Board of Directors). Commencing with the 1998 Annual Meeting of
Stockholders of the Corporation, the directors, other than those who may be
elected by the holders of any series of Preferred Stock under specified
circumstances, shall be divided into three classes, as nearly equal in number as
possible, with the term of office of the first class to expire at the 1999
Annual Meeting of Stockholders, the term of office of the second class to expire
at the 2000 Annual Meeting of Stockholders and the term of office of the third
class to expire at the 2001 Annual Meeting of Stockholders, with each director
to hold office until such director's successor shall have been duly elected and
qualified. At each Annual Meeting of Stockholders, commencing with the 1999
Annual Meeting of Stockholders, (i) Directors elected to succeed those directors
whose terms expire shall be elected for a term of office to expire at the third
succeeding Annual Meeting of Stockholders after their election and (ii) if
authorized by a resolution of the Board of Directors, directors may be elected
to fill any vacancy on the Board of Directors, regardless of how such vacancy
shall have been created.
3. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, and unless the Board of Directors otherwise determines,
newly created directorships resulting from any increase in the authorized number
of directors or any vacancies in the Board of Directors resulting from death,
disability, resignation, retirement, disqualification, removal from office or
other cause shall be filled only by a majority vote of the directors then in
office, though less than a quorum, and directors so chosen shall hold office for
a term expiring at the Annual Meeting of Stockholders at which the term of
office of the class to which they have been elected expires and until such
director's successor shall have been duly elected or qualified. No decrease in
the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
4. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any director, or the entire Board of Directors, may be
removed from office at any time, but only for cause.
5. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the capital stock required by law, this
Certificate of Incorporation or any series of Preferred Stock, the affirmative
vote of the holders of at least 80 percent of the voting power of all of the
then-outstanding shares of the capital stock entitled to vote for the election
of directors, voting together as a single class, shall be required to alter,
amend or repeal this Article SIXTH.
SEVENTH: Subject to the rights of the holders of any series of
Preferred Stock, (A) any action required or permitted to be taken by the
stockholders of the Corporation must be effected at an annual or special meeting
of stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders and (B) special meetings of stockholders of the
Corporation may be called only by the Chairman of the Board of Directors, the
President or by the Board of Directors pursuant to a resolution adopted by a
majority of the entire Board of Directors. Notwithstanding any other provisions
of this Certificate of Incorporation or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any affirmative
vote of the holders of any particular class or series of the capital stock of
the Corporation required by law, this Certificate of Incorporation or any series
of Preferred Stock, the affirmative vote of the holders of at least 80 percent
of the voting power of all of the then-outstanding shares of capital stock
entitled to vote for the election of directors, voting together as a single
class, shall be required to alter, amend or repeal this Article SEVENTH.
EIGHTH: The Board of Directors may make, alter or repeal the ByLaws of
the Corporation subject to the power of the holders of the capital stock of the
Corporation to alter, amend or repeal the Bylaws.
NINTH: The Directors of the Corporation shall be protected from
personal liability, through indemnification or otherwise, to the fullest extent
permitted under the General Corporation Law of the State of Delaware as from
time to time in effect.
1. A Director of the Corporation shall under no circumstances have any
personal liability to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director except for those breaches and acts or
omissions with respect to which the General Corporation Law of the State of
Delaware, as from time to time amended, expressly provides that this provision
shall not eliminate or limit such personal liability of Directors. Neither the
modification or repeal of this paragraph 1 of Article NINTH nor any amendment to
said General Corporation Law that does not have retroactive application shall
limit the right of Directors hereunder to exculpation from personal liability
for any act or omission occurring prior to such amendment, modification or
repeal.
2. Each person who was or is made a party or is threatened to be made
a party 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 a 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 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 than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' 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
paragraph (b) hereof, 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. The right to indemnification conferred in this Bylaw 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 or officer (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 Bylaw or otherwise. The
Corporation may, by action of 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.
3. If a claim under paragraph (a) of this Bylaw is not paid in full by
the Corporation within thirty 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 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.
4. The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in this
Bylaw shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, Bylaw, agreement, vote of stockholders or disinterested directors
or otherwise.
5. The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another Corporation, partnership, joint venture, trust or other enterprise
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.
IN WITNESS WHEREOF, I have hereunto set my hand this 30th day of
October, 1997.
/s/ Josh DeRienzis
------------------
Josh DeRienzis
Sole Incorporator
EXHIBIT 3.2
____________________________________________________________________________
BYLAWS
OF
APHTON CORPORATION
a Delaware Corporation
____________________________________________________________________________
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. GENERAL PROVISIONS..............................................C-1
1.01. Principal Executive Office..................................C-1
1.02. Number of Directors.........................................C-1
ARTICLE II. SHARES AND STOCKHOLDERS........................................C-1
2.01. Meetings of Stockholders....................................C-1
(a) Place of Meetings....................................C-1
(b) Annual Meetings......................................C-1
(c) Special Meetings.....................................C-2
(d) Notice of Meetings...................................C-2
(e) Adjourned Meeting and Notice Thereof.................C-2
(f) Waiver of Notice.....................................C-2
(g) Quorum...............................................C-3
(h) Organization of Meetings.............................C-3
2.02. Voting of Shares............................................C-3
(a) In General...........................................C-3
2.03. Proxies.....................................................C-3
2.04. Record Date.................................................C-3
2.05. Share Certificates..........................................C-4
2.06. Lost Certificates...........................................C-4
2.07. Notice of Stockholder Nominations and Proposed Business.....C-5
ARTICLE III. DIRECTORS.....................................................C-6
3.01. Powers......................................................C-6
3.02. Election and Term of Office.................................C-7
3.03. Committees of the Board of Directors........................C-7
3.04. Vacancies...................................................C-8
3.05. Removal.....................................................C-8
3.06. Resignation.................................................C-8
3.07. Meetings of the Board of Directors..........................C-8
(a) Regular Meetings.....................................C-8
(b) Organization Meetings................................C-8
(c) Special Meetings.....................................C-9
(d) Notice of Adjournment................................C-9
(e) Place of Meetings....................................C-9
(f) Presence by Conference Telephone Call................C-9
(g) Quorum...............................................C-9
(h) Waiver of Notice.....................................C-9
3.08. Action Without Meeting.....................................C-10
ARTICLE IV. OFFICERS......................................................C-10
4.01. Officers...................................................C-10
4.02. Elections..................................................C-10
4.03. Other Officers.............................................C-10
4.04. Removal....................................................C-10
4.05. Resignation................................................C-11
4.06. Vacancies..................................................C-11
4.07. Chairman of the Board of Directors.........................C-11
4.08. President..................................................C-11
4.09. Secretary..................................................C-12
4.10. Vice President.............................................C-12
4.11. Treasurer..................................................C-12
ARTICLE V. MISCELLANEOUS..................................................C-13
5.01. Records and Reports........................................C-13
(a) Books of Account and Proceedings....................C-13
5.02. Checks, Drafts, Etc........................................C-13
5.03. Authority to Execute Contracts.............................C-13
5.04. Representation of Shares of Other Corporations.............C-13
5.05. Indemnification and Insurance..............................C-14
(a) Right to Indemnification............................C-14
(b) Right of Claimant to Bring Suit.....................C-14
(c) Non-Exclusivity of Rights...........................C-15
(d) Insurance...........................................C-15
5.06. Construction and Definitions...............................C-15
ARTICLE VI. AMENDMENTS....................................................C-16
6.01. Power of Stockholders......................................C-16
6.02. Power of Directors.........................................C-16
<PAGE>
BYLAWS
of
APHTON CORPORATION
ARTICLE I.
GENERAL PROVISIONS
Section 1.01. Principal Executive Office. The principal executive
office of the Corporation shall be located at World Trade Center, Miami, 80
S.W., 8th Street, Miami, Florida 33149-3047. The Board of Directors shall have
the power to change the principal office to another location and may fix and
locate one or more subsidiary offices.
Section 1.02. Number of Directors. The affairs of the Corporation
shall be managed under the direction of a Board of Directors. Subject to the
rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances, the number of Directors constituting
the entire Board of Directors shall be fixed from time to time exclusively by
the Board of Directors pursuant to a resolution adopted by a majority of the
entire Board of Directors (excluding, for the purpose of determining the number
of directors constituting the entire Board of Directors, any vacancies in the
Board of Directors).
ARTICLE II.
SHARES AND STOCKHOLDERS
Section 2.01. Meetings of Stockholders. (a) Place of Meetings.
Meetings of stockholders shall be held at any place within or without the State
of Delaware designated by the Board of Directors. In the absence of any such
designation, stockholders' meetings shall be held at the principal executive
office of the Corporation.
(b) Annual Meetings. An annual meeting of the stockholders of the
Corporation shall be held on the third Wednesday of June of each year at 10:00
a.m. or at such other date and time as may be designated by the Board of
Directors; provided, however, that should said day fall upon a legal holiday,
the annual meeting of stockholders shall be held at the same time on the next
day thereafter ensuing which is a full business day. At each annual meeting
Directors shall be elected, and any other proper business may be transacted.
(c) Special Meetings. Special meetings of stockholders of the
Corporation may be called only by the Chairman of the Board of Directors, the
President or by the Board of Directors pursuant to a resolution adopted by a
majority of the entire Board of Directors (excluding, for the purpose of
determining the number of directors constituting the entire Board of Directors,
any vacancies in the Board of Directors).
(d) Notice of Meetings. Notice of any stockholders' meeting shall be
given not less than 10 nor more than 60 days before the date of the meeting to
each stockholder entitled to vote thereat. Such notice shall state the place,
date and hour of the meeting and those matters which the Board of Directors, at
the time of the giving of the notice, intends to present for action by the
stockholders. The notice of any meeting at which Directors are to be elected
shall include the names of nominees intended at the time of the notice to be
presented by management for election.
(e) Adjourned Meeting and Notice Thereof. Any meeting of stockholders
may be adjourned from time to time by the vote of a majority of the shares
represented either in person or by proxy whether or not a quorum is present.
When a stockholders' meeting is adjourned to another time or place, notice need
not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Corporation may transact any business which might have been
transacted at the original meeting. However, if the adjournment is for more than
30 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.
(f) Waiver of Notice. Whenever notice is required to be given under
any provision of the Delaware General Corporation Law,the Certificate of
Incorporation or Bylaws, a written waiver, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice unless
so required by the Certificate of Incorporation or these Bylaws.
(g) Quorum. The presence in person or by proxy of the persons entitled
to vote equalling a majority of the shares entitled to vote at any meeting shall
constitute a quorum for the transaction of business. If a quorum is present, the
affirmative vote of the majority of the shares represented at the meeting and
entitled to vote on any matter shall be the act of the stockholders, unless the
vote of a greater number or voting by classes is required by law or the
Certificate of Incorporation of the Corporation. If there be no such quorum, the
holders of a majority of such shares so present or represented may adjourn the
meeting from time to time until a quorum shall have been obtained.
(h) Organization of Meetings. Meetings of the stockholders shall be
presided over by the Chairman of the Board, or if he is not present, by the
President, or if he is not present, by a Chairman to be chosen at the meeting.
The Secretary of the Corporation or in his absence, an Assistant Secretary,
shall act as Secretary at the meeting, if present.
Section 2.02. Voting of Shares. (a) In General. Except as otherwise
provided by law, the Certificate of Incorporation or these Bylaws, in all
matters other than the election of directors, the affirmative vote of the
majority of shares present in person or represented by proxy at the meeting and
entitled to vote on the subject matter shall be the act of the stockholders.
Directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote on the
election of directors.
Section 2.03. Proxies. Every person entitled to vote for Directors or
any other matters shall have the right to do so either in person or by one or
more agents authorized by a written proxy signed by the person.
Section 2.04. Record Date. (a) In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, the Board of Directors may fix a record
date, which record date shall not precede the date on which the resolution
fixing the record date is adopted by the Board of Directors, and which record
date shall not be more than sixty nor less than ten days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if noticed is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights of the stockholders 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 a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which record date shall not be more than
sixty days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto.
Stockholders on the record date are entitled to notice and to vote or
to receive the dividend, distribution or allotment of rights or to exercise the
rights, as the case may be, notwithstanding any transfer of any shares on the
books of the Corporation after the record date, except as otherwise provided in
the Certificate of Incorporation or by agreement or in the Delaware General
Corporation Law.
Section 2.05. Share Certificates. The shares of the Corporation shall
be represented by certificates; provided, that the Board of Directors may
provide by resolution that some or all of any or all classes or series of its
stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates and upon request
every holder of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the Corporation by the Chairman of the Board of
Directors or Vice Chairman of the Board of Directors, if any, or the President
or Vice President, if any, and by the Treasurer or an Assistant Treasurer, if
any, or the Secretary or an Assistant Secretary of the Corporation representing
the number of shares registered in certificated form. Any or all of the
signatures on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
Section 2.06. Lost Certificates. In the event that any certificate of
stock is lost, stolen, destroyed or mutilated, the Board of Directors may
authorize the issuance of a new certificate or uncertificated share of the same
tenor and for the same number of shares in lieu thereof. The Board of Directors
may in its discretion, before the issuance of such new certificate, require the
owner of the lost, stolen, destroyed or mutilated certificate, or the legal
representative of the owner to make an affidavit or affirmation setting forth
such facts as to the loss, destruction or mutilation as it deems necessary, and
to give the Corporation a bond in such reasonable sum as it directs to indemnify
the Corporation.
Section 2.07. Notice of Stockholder Nominations and Proposed Business.
(a) At any meeting of the stockholders, (i) nominations for the election of
directors and (ii) business to be brought before any such stockholders' meeting
may only be made or proposed (A) pursuant to the Corporation's notice of
meeting, (B) by or at the direction of the Board of Directors or (C) by any
stockholder of the Corporation who is a stockholder of record at the time of
giving of the notice provided for in this Bylaw, who shall be entitled to vote
at such meeting and who complies with the notice procedures set forth in this
Bylaw.
(b) Any stockholder may nominate one or more persons for election as
directors at a stockholders' meeting or propose business to be brought before a
stockholders' meeting, or both, pursuant to clause (C) of paragraph (a), only if
the stockholder has 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 90 days nor more than 120 days prior to the
stockholders' meeting; provided, however, that if less than 100 days' notice or
other prior public disclosure of the date of the meeting is given or made to the
stockholders, notice by the stockholder to be timely must be received no later
than the close of business on the 10th day following the earlier of the day on
which notice of the date of the meeting was mailed or other public disclosure
was made. To be in proper written form a stockholder's notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring before the
meeting:
(1) a brief description of the business proposed and/or persons
nominated, as applicable, and the reasons for proposing such business or
making such nomination;
(2) the name and address, as they appear on the Corporation's books,
of the stockholder proposing such business or making such nomination, and
the name and address of the beneficial owner, if any, on whose behalf the
proposal is made;
(3) the class and number of shares of the Corporation which
are owned beneficially and of record by such stockholder of record and
by the beneficial owner, if any, on whose behalf the proposal is made;
(4) with respect to any nomination, (i) a description of all
arrangements and understandings between the stockholder and each nominee
and any other person or persons (naming such person or persons) pursuant to
which the nomination or nominations are to be made, (ii) the name, age,
business address and residence address of such nominee, (iii) the class and
number of shares of capital stock of the Corporation owned beneficially and
of record by such nominee and (iv) the written consent of the proposed
nominee to being named in the solicitation material and to serving as a
director if elected; and
(5) such other information regarding each nominee or matter of
business to be proposed as would be required to be included in
solicitations of proxies, or is otherwise required, in each case pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended.
(c) Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at any stockholders' meeting and no stockholder may
nominate any person for election at any stockholders' meeting except in
accordance with the procedures set forth in this Bylaw. The Chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
any proposed business and/or any proposed nomination for election as director
was not properly brought or made before the meeting or made in accordance with
the procedures prescribed by these Bylaws, and if he should so determine, he
shall so declare to the meeting and any such proposed business or proposed
nomination for election as director not properly brought before the meeting or
made shall not be transacted or considered.
ARTICLE III.
DIRECTORS
Section 3.01. Powers. Subject to the provisions of the Delaware
General Corporation Law and the Certificate of Incorporation, the business and
affairs of the Corporation shall be managed and all corporate powers shall be
exercised under the direction of the Board of Directors. The Board of Directors
may delegate the management of the day-to-day operations of the business of the
Corporation to a management company or other person provided that the business
and affairs of the Corporation shall be managed and all corporate powers shall
be exercised under the ultimate direction of the Board of Directors.
Section 3.02. Election and Term of Office. Subject to the rights of
the holders of any series of Preferred Stock to elect additional directors under
specified circumstances, the number of directors constituting the entire Board
of Directors shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the entire Board of
Directors (excluding, for the purpose of determining the number of directors
constituting the entire Board, any vacancies in the Board of Directors).
Commencing with the 1998 Annual Meeting of Stockholders of the Corporation, the
directors, other than those who may be elected by the holders of any series of
Preferred Stock under specified circumstances, shall be divided into three
classes, as nearly equal in number as possible, with the term of office of the
first class to expire at the 1999 Annual Meeting of Stockholders, the term of
office of the second class to expire at the 2000 Annual Meeting of Stockholders
and the term of office of the third class to expire at the 2001 Annual Meeting
of Stockholders, with each director to hold office until such director's
successor shall have been duly elected and qualified. At each Annual Meeting of
Stockholders, commencing with the 1999 Annual Meeting of Stockholders, (i)
Directors elected to succeed those directors whose terms expire shall be elected
for a term of office to expire at the third succeeding Annual Meeting of
Stockholders after their election and (ii) if authorized by a resolution of the
Board of Directors, directors may be elected to fill any vacancy on the Board of
Directors, regardless of how such vacancy shall have been created.
Section 3.03. Committees of the Board of Directors. The Board of
Directors may designate one or more committees, each committee to consist of one
or more of the directors of the Corporation, with such lawfully delegated powers
and duties as it therefor confers, to serve at the pleasure of the Board of
Directors. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members present at any meeting and not
disqualified from voting, whether or not such member or members 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. Any such
committee, to the extent provided in the resolution of the Board of Directors
and subject to the provisions of the General Corporation law of the State of
Delaware, shall have and may exercise all the powers and authority 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; but no such committee shall have the power or authority in
reference to the following matters: (i) approving or adopting, or recommending
to the stockholders, any action or matter expressly required by law to be
submitted to stockholders for approval or (ii) adopting, amending or repealing
any of these Bylaws. Each such committee shall keep minutes and make such
reports as the Board of Directors may from time to time request. Except as the
Board of Directors may otherwise determine, any committee may make rules for the
conduct of its business, but unless otherwise provided by such rules, its
business shall be conducted as nearly as possible in the same manner as is
provided in these Bylaws for the Board of Directors.
Section 3.04. Vacancies. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, and unless the Board of Directors
otherwise determines, newly created directorships resulting from any increase in
the authorized number of directors or any vacancies in the Board of Directors
resulting from death, disability, resignation, retirement, disqualification,
removal from office or other cause shall be filled only by a majority vote of
the directors then in office, though less than a quorum, and directors so chosen
shall hold office for a term expiring at the Annual Meeting of Stockholders at
which the term of office of the class to which they have been elected expires
and until such director's successor shall have been duly elected or qualified.
No decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
Section 3.05. Removal. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, any director, or the entire Board of
Directors, may be removed from office at any time, but only for cause.
Section 3.06. Resignation. Any director may resign effective upon
giving written notice to the Chairman of the Board of Directors, the President,
the Secretary or the Board of Directors of the Corporation, unless the notice
specifies a later time for the effectiveness of such resignation. If the
resignation is effective at a future time, a successor may be elected to take
office when the resignation becomes effective.
Section 3.07. Meetings of the Board of Directors. (a) Regular
Meetings. Regular meetings of the Board of Directors shall be held at such time
and place within or without the State as may be designated from time to time by
resolution of the Board of Directors or by written consent of all members of the
Board of Directors or in these Bylaws. Such regular meetings may be held without
notice.
(b) Organization Meetings. Immediately following each annual meeting
of stockholders the Board of Directors shall hold a regular meeting for the
purpose of organization, election of officers, and the transaction of other
business. Notice of such meetings is hereby dispensed with.
(c) Special Meetings. Special meetings of the Board of Directors for
any purpose or purposes may be called at any time by the Board of Directors or
the Chairman of the Board of Directors. Special meetings shall be held upon ten
days' notice delivered by mail, personally or by telephone or telegraph. Notice
of a meeting need not be given to any director who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to such
director.
(d) Notice of Adjournment. A majority of the Directors present,
whether or not a quorum is present, may adjourn any meeting to another time and
place. If the meeting is adjourned for more than 24 hours, notice of such
adjournment to another time and place shall be given prior to the time of the
adjourned meeting to the Directors who were not present at the time of
adjournment.
(e) Place of Meetings. Meetings of the Board of Directors may be held
at any place within or without the state which has been designated in the notice
of the meeting or, if not stated in the notice or there is no notice, then such
meeting shall be held at the principal executive office of the Corporation, or
such other place designated by resolution of the Board of Directors.
(f) Presence by Conference Telephone Call. Members of the Board of
Directors or any Committee may participate in a meeting through use of
conference telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another. Such participation
constitutes presence in person at such meeting.
(g) Quorum. A majority of the authorized number of Directors
constitutes a quorum of the Board of Directors for the transaction of business.
Every act or decision done or made by a majority of the Directors present at a
meeting duly held at which a quorum is present is the act of the Board of
Directors, unless a greater number be required by law or by the Certificate of
Incorporation. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of Directors, if any action
taken is approved by at least a majority of the required quorum for such
meeting.
(h) Waiver of Notice. The transactions of any meeting of the Board of
Directors, however called and noticed or wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice if a quorum is
present and if, either before or after the meeting, each of the Directors not
present signs a written waiver of notice, a consent to holding a meeting or an
approval of the minutes thereof. All such waivers, consents and approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting.
Section 3.08. Action Without Meeting. Any action required or permitted
to be taken at any meeting by the Board of Directors or any Committee, may be
taken without a meeting if all members of the Board of Directors or Committee
shall consent in writing to such action. Such written consent or consents shall
be filed with the minutes of the proceedings of the Board of Directors. Such
action by written consent shall have the same force and effect as a unanimous
vote of such directors.
ARTICLE IV.
OFFICERS
Section 4.01. Officers. The officers of the Corporation shall consist
of a Chairman of the Board of Directors who shall be the chief executive
officer, a President who shall be the chief operating officer, a Secretary, and
such additional officers as may be elected or appointed in accordance with
Section 4.03 of these Bylaws and as may be necessary to enable the Corporation
to sign instruments and share certificates. Any number of offices may be held by
the same person.
Section 4.02. Elections. All officers of the Corporation, except such
officers as may be otherwise appointed in accordance with section 4.03 of these
Bylaws, shall be chosen by the Board of Directors, and each shall hold his
office until he shall resign or be removed or is otherwise disqualified to
serve, or until his successor is chosen and qualified.
Section 4.03. Other Officers. The Board of Directors may appoint or
may confer upon the Chairman of the Board of Directors the power to appoint one
or more vice presidents, one or more assistant secretaries, a treasurer, one or
more assistant treasurers, a chief accounting officer or such other officers as
the business of the Corporation may require, each of whom shall hold office for
such period, have such authority and perform such duties as the Chairman of the
Board of Directors or the Board of Directors may from time to time determine.
Section 4.04. Removal. Any officer may be removed, either with or
without cause, by the Board of Directors at any regular or special meeting
thereof, or, except in case of an officer chosen by the Board of Directors, by
any officer upon whom such power of removal may be conferred by the Board of
Directors. Any officer appointed by the Chairman of the Board of Directors may
be removed, with or without cause, by the Chairman of the Board of Directors.
Section 4.05. Resignation. Any officer may resign at any time by
giving written notice to the Board of Directors or to the Chairman of the Board
of Directors, or to the Secretary of the Corporation without prejudice to the
rights, if any, of the Corporation under any contract to which the officer is a
party. Any such resignation shall take effect at the date of the receipt of such
notice or any later time specified therein; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
Section 4.06. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these Bylaws for regular appointments to such office.
Section 4.07. Chairman of the Board of Directors. The Chairman of the
Board of Directors, if present, shall preside at all meetings of the Board of
Directors and stockholders, and exercise and perform such other powers and
duties as may be from time to time assigned to him by the Board of Directors.
The Chairman of the Board of Directors shall be the chief executive officer and
shall be the general manager of the Corporation and shall, subject to the
ultimate control of the Board of Directors, have general supervision, direction
and control of the business and affairs of the Corporation. The Chairman of the
Board of Directors shall be an ex-officio member of all the standing committees,
including the executive committee, if any, and shall have the general powers and
duties of management usually vested in the office of the chief executive officer
of a Corporation, and shall have such other powers and duties as may be
prescribed by the Board of Directors or these Bylaws. Subject to any constraints
by the Board of Directors, the Chairman of the Board of Directors shall have the
power or may confer upon officers of the Corporation, the power to execute
bonds, mortgages and other contracts, agreements and instruments in the name and
on behalf of the Corporation, and shall do and perform such other duties as from
time to time may be assigned to him by the Board of Directors. The Chairman of
the Board of Directors shall render to the members of the Board of Directors,
whenever they request it, an account of any of his transactions or all of his
principal transactions and of the general financial condition of the
Corporation.
Section 4.08. President. If there be no Chairman of the Board of
Directors, or in the event of the Chairman of the Board of Director's inability
or refusal to act, the President shall perform the duties of the Chairman of the
Board of Directors and when so acting, shall have all of the power of and be
subject to all of the restrictions upon the Chairman of the Board of Directors.
The President shall be the chief operating officer and, as such, shall manage
such affairs of the Corporation with such powers and duties as may be prescribed
by the Chairman of the Board of Directors, and as may be given by the Board of
Directors. In the absence of the Chairman of the Board of Directors, the
President shall preside at all meetings of the Board of Directors and
stockholders. The President shall have the power to execute bonds, mortgages and
other contracts, agreements and instruments in the name and on behalf of the
Corporation, and shall do and perform such other duties as from time to time may
be assigned to him by the Chairman of the Board of Directors or the Board of
Directors.
Section 4.09. Secretary. The Secretary shall keep or cause to be kept
the minutes of proceedings and record of stockholders, as provided for and in
accordance with Section 5.01(a) of these Bylaws.
The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the Board of Directors required by these Bylaws or by
law to be given, and shall have such other powers and perform such other duties
as may be prescribed by the Board of Directors.
Section 4.10. Vice President. If there be no President, or in the
event of the President's inability or refusal to act, the executive vice
president, or if none exists, the senior vice president or if none exists the
vice president in the order of designation by the Board of Directors, shall
perform 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. Any vice
president shall perform such other duties as from time to time may be assigned
to such vice president by the Chairman of the Board of Directors or the Board of
Directors.
Section 4.11. Treasurer. The treasurer, if any, shall deposit or cause
to be deposited all moneys and other valuables in the name and to the credit of
the Corporation with such depositaries as may be designated by the Chairman of
the Board of Directors. The treasurer shall disburse or cause to be disbursed
the funds of the Corporation as may be ordered by the Chairman of the Board of
Directors. The Treasurer shall have such other powers and perform such other
duties as may be prescribed by the Chairman of the Board of Directors, the Board
of Directors or these Bylaws.
ARTICLE V.
MISCELLANEOUS
Section 5.01. Records and Reports. (a) Books of Account and
Proceedings. The Corporation shall keep adequate and correct books and records
of account and shall keep minutes of the proceedings of its stockholders, Board
of Directors and committees of the Board of Directors and shall keep at its
principal executive office, or at the office of its transfer agent or registrar,
a record of its stockholders, giving the names and addresses of all stockholders
and the number and class of shares held by each. Such minutes shall be kept in
written form. Such other books and records shall be kept either in written form
or in any other form capable of being converted into written form.
Section 5.02. Checks, Drafts, Etc. All checks, drafts or other orders
for payment of money, notes or other evidences of indebtedness, issued in the
name of or payable to the Corporation, shall be signed or endorsed by the
Chairman of the Board of Directors, or such other person or persons and in such
manner as, from time to time, shall be determined by the Chairman of the Board
of Directors or by resolution of the Board of Directors.
Section 5.03. Authority to Execute Contracts. The Board of Directors
may authorize any officer or officers, agent or agents, either directly or
through the Chairman of the Board of Directors to enter into any contract or
execute any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances; and, unless so
authorized by the Board of Directors, or the Chairman of the Board of Directors,
and except as otherwise provided 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 for any purpose or to
any amount.
Section 5.04. Representation of Shares of Other Corporations. The
Chairman of the Board of Directors, the President or any Vice President and the
Secretary or Assistant Secretary of this Corporation are authorized to vote,
represent and exercise on behalf of this Corporation all rights incident to any
and all shares of any other Corporation or Corporations standing in the name of
this Corporation. The authority herein granted to said officers to vote or
represent on behalf of this Corporation any and all shares held by this
Corporation in any other Corporation or Corporations may be exercised either by
such officers in person or by any other person authorized so to do by proxy or
power of attorney duly executed by said officers.
Section 5.05. Indemnification and Insurance. (a) Right to
Indemnification. Each person who was or is made a party or is threatened to be
made a party 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 a 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 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 than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' 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
paragraph (b) hereof, 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. The right to indemnification conferred in this Bylaw 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 or officer (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 Bylaw or otherwise. The
Corporation may, by action of 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.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of
this Bylaw is not paid in full by the Corporation within thirty 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 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.
(c) 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 Bylaw shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Corporation or another Corporation, partnership, joint venture, trust or other
enterprise 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.
Section 5.06. Construction and Definitions. Unless the context
otherwise requires, the general provisions, rules of construction and
definitions contained in the Delaware General Corporation Law shall govern the
construction of these Bylaws. Without limiting the generality of the foregoing,
the masculine gender includes the feminine and neuter, the singular number
includes the plural and the plural number includes the singular, and the term
"person" includes a Corporation as well as a natural person.
ARTICLE VI.
AMENDMENTS
Section 6.01. Power of Stockholders. New Bylaws may be adopted or
these Bylaws may be amended or repealed by the vote of at least a majority of
the shares of stock of the Corporation issued and outstanding and entitled to
vote.
Section 6.02. Power of Directors. Subject to the right of stockholders
as provided in Section 6.01 to adopt, amend or repeal Bylaws, any Bylaw may be
adopted, amended or repealed by the Board of Directors.
