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UNITED STATES
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): MARCH 1, 2000
LEAR CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 1-11311 13-3386776
(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification
incorporation) Number)
21557 TELEGRAPH ROAD, SOUTHFIELD, MICHIGAN 48034
(Address of principal executive offices) (Zip Code)
(248) 447-1500
(Registrant's telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
Rights Agreement
On March 1, 2000 the Board of Directors of Lear Corporation
(the "Company") declared a dividend of one preferred share purchase right (a
"Right") for each outstanding share of common stock, par value $.01 per share,
of the Company (the "Common Shares"). The dividend is payable on March 17, 2000
(the "Record Date") to the stockholders of record on that date. The description
and terms of the Rights are set forth in an Agreement (the "Agreement") between
the Company and as Rights Agent (the "Rights Agent").
Purchase Price
Each Right entitles the registered holder to purchase from the
Company one one-thousandth of a share of Series A Junior Participating Preferred
Stock of the Company, par value $.01 per share (the "Preferred Shares"), at a
price of $125 per one one-thousandth of a Preferred Share (the "Purchase
Price"), subject to adjustment.
Flip-In
In the event that any person or group of affiliated or
associated persons acquires beneficial ownership of 20% or more of the
outstanding Common Shares (an "Acquiring Person"), each holder of a Right, other
than Rights beneficially owned by the Acquiring Person (which will thereafter be
void), will thereafter have the right to receive upon exercise that number of
Common Shares having a market value of two times the exercise price of the
Right.
Flip-Over
If the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold after a person or group has become an Acquiring Person, each
holder of a Right (other than Rights beneficially owned by Acquiring Person,
which will be void) will thereafter have the right to receive that number of
shares of common stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise price of the
Right.
Distribution Date
The distribution date is the earlier of:
(i) Ten (10) days following a public announcement that a
person or group of affiliated or associated persons have acquired beneficial
ownership of 20% or more of the outstanding Common Shares; or
(ii) Ten (10) business days (or such later date as may be
determined by action of the Board of Directors of the Company prior to such time
as any person or group of affiliated persons becomes an Acquiring Person)
following the commencement of or announcement of an
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intention to make, a tender offer or exchange offer the consummation of which
would result in the beneficial ownership by a person or group of 20% or more of
the outstanding Common Shares.
Transfer and Detachment
Until the Distribution Date, the Rights will be evidenced,
with respect to any of the Common Share certificates outstanding as of the
Record Date, by such Common Share certificate. Until the Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will be transferred
with and only with the Common Shares, and transfer of those certificates will
also constitute transfer of these Rights.
As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights ("Right Certificates") will be
mailed to holders of record of the Common Shares as of the close of business on
the Distribution Date and such separate Right Certificates alone will thereafter
evidence the Rights.
Exerciseability
The Rights are not exercisable until the Distribution Date.
The Rights will expire on March 1, 2010 (the "Final Expiration Date"), unless
the Final Expiration Date is extended or unless the Rights are earlier redeemed
or exchanged by the Company, in each case, as described below.
Adjustments
The Purchase Price payable, and the number of Preferred Shares
or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution in the event of
stock dividends, stock splits, reclassifications, or certain distributions with
respect to the Preferred Shares. The number of outstanding Rights and the number
of one one-thousandths of a Preferred Share issuable upon exercise of each Right
are also subject to adjustment if, prior to the Distribution Date, there is a
stock split of the Common Shares or a stock dividend on the Common Shares
payable in Common Shares or any subdivision, consolidation or combination of the
Common Shares. With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-thousandth of a Preferred
Share, which may, at the election of the Company, be evidenced by depositary
receipts) and, in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
Preferred Shares
Preferred Shares purchasable upon exercise of the Rights will
not be redeemable. After issuance, each Preferred Share will be entitled to a
minimum preferential quarterly dividend payment of $1 per share but will be
entitled to an aggregate dividend of 1,000 times the
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dividend declared per Common Share. In the event of liquidation, the holders of
the Preferred Shares will be entitled to a minimum preferential liquidation
payment of $1,000 per share but will be entitled to an aggregate payment of
1,000 times the payment made per Common Share. Each Preferred Share will have
1,000 votes, voting together with the Common Shares. Finally, in the event of
any merger, consolidation or other transaction in which Common Shares are
exchanged, each Preferred Share will be entitled to receive 1,000 times the
amount received per Common Share. These rights are protected by customary
anti-dilution provisions.
The value of the one one-thousandth interest in a Preferred
Share purchasable upon exercise of each Right should, because of the nature of
the Preferred Shares' dividend, liquidation and voting rights, approximate the
value of one Common Share.
Exchange
At any time after any person or group becomes an Acquiring
Person, and prior to the acquisition by such person or group of 50% or more of
the outstanding Common Shares, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by the Acquiring Person, which will
have become void), in whole or in part, at an exchange ratio of one Common
Share, or one one-thousandth of a Preferred Share per Right (subject to
adjustment).
Redemption
At any time prior to any person or group becoming an Acquiring
Person, the Board of Directors of the Company may redeem the Rights in whole,
but not in part, at a price of $.01 per Right (the "Redemption Price"). The
redemption of the Rights may be made effective at such time on such basis with
such conditions as the Board of Directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
Amendments
The terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of the Rights,
including an amendment to lower the 20% threshold described above to not less
than the greater of (i) the sum of .001% and the largest percentage of the
outstanding Common Shares then known to the Company to be beneficially owned by
any person or group of affiliated or associated persons; and (ii) 10%, except
that from and after such time as any person or group of affiliated or associated
persons becomes an Acquiring Person no such amendment may adversely affect the
interests of the holders of the Rights.
Rights and Holders
Until a Right is exercised, the holder thereof as such, will
have no rights as a stockholder of the Company, including, without limitation,
the right to vote or to receive dividends.
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Amendments to Bylaws
On March 1, 2000, the Board of the Company adopted amended and
restated bylaws, a copy of which is attached hereto as Exhibit 99.3.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
99.1 Press release issued March 2, 2000, filed herewith.
99.2 Right Agreement, dated March 1, 2000, between Lear
Corporation and The Bank of New York, incorporated
herein by reference to the Company's Registration
Statement on Form 8-A filed March 2, 2000.
99.3 The Company's bylaws adopted March 1, 2000, filed
herewith.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
LEAR CORPORATION,
a Delaware corporation
Date: March 2, 2000 By: /S/ Joseph F. McCarthy
-------------------------------------
Name: Joseph F. McCarthy
Title: Vice President, Secretary and
General Counsel
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EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
99.1 Press release issued March 2, 2000, filed herewith.
99.2 Right Agreement, dated March 1, 2000, between Lear
Corporation and The Bank of New York, incorporated
herein by reference to the Company's Registration
Statement on Form 8-A filed [March 2, 2000].
99.3 The Company's bylaws adopted March 1, 2000, filed
herewith.
</TABLE>
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EXHIBIT 99.1
LEAR CORPORATION DECLARES DIVIDEND
DISTRIBUTION OF PREFERRED SHARE PURCHASE RIGHTS
SOUTHFIELD, MICHIGAN, MARCH 2, 2000 - The Board of Directors of Lear
Corporation [yesterday] declared a dividend distribution of one Preferred Share
Purchase Right on each outstanding share of its common stock.
Kenneth L. Way, Chairman and Chief Executive Officer of Lear Corporation,
stated: "The Preferred Share Purchase Rights are designed to assure that all of
our stockholders receive fair and equal treatment in the event of any proposed
takeover of the Company and to guard against abusive tactics to gain control of
Lear Corporation without paying all of our stockholders a premium for that
control. The Preferred Share Purchase Rights are not being adopted in response
to any specific takeover threat, but are a response to the general takeover
environment."
The Preferred Share Purchase Rights are intended to enable all of our
stockholders to realize the long-term value of their investment in the Company.
The Preferred Share Purchase Rights will not prevent a takeover, but should
encourage anyone seeking to acquire the Company to negotiate with the Board
prior to attempting a takeover.
The Preferred Share Purchase Rights will be exercisable only if a person or
group acquires 20% or more of Lear Corporation's common stock or announces a
tender offer the consummation of which would result in ownership by a person or
group of 20% or more of the common stock. Each Preferred Share Purchase Right
will entitle stockholders to buy one one-thousandth of a share of a new series
of junior participating preferred stock at an exercise price of $125.
If a person or group acquires 20% or more of Lear Corporation's outstanding
common stock, each Preferred Share Purchase Right will entitle its holder (other
than such person or group) to purchase, at the Preferred Share Purchase Right's
then-current exercise price, a number of Lear Corporation's common shares having
a market value of twice such price. In addition, if Lear Corporation is acquired
in a merger or other business combination transaction after a person has
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acquired 20% or more of the Company's outstanding common stock, each Preferred
Share Purchase Right will entitle its holder to purchase, at the Preferred Share
Purchase Right's then-current exercise price, a number of the acquiring
company's common shares having a market value of twice such price. The acquiring
person or group will not be entitled to exercise these Rights.
Prior to the acquisition by a person or group of beneficial ownership of 20% or
more of the Company's common stock, the Preferred Share Purchase Rights are
redeemable for one cent per right at the option of the Board of Directors.
The Board of Directors is also authorized to reduce the 20% thresholds referred
to above to not less than 10%.
The dividend distribution will be made on March 17, 2000, payable to
stockholders of record on that date, and is not taxable to stockholders. The
Preferred Share Purchase Rights will expire on March 1, 2010.
Lear Corporation, a Fortune 200 company headquartered in Southfield, Michigan,
USA, is one of the world's largest automotive suppliers, with annual sales of
more than $12 billion. The company's world-class products are designed,
engineered and manufactured by more than 120,000 employees in over 300
facilities located in 33 countries.
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EXHIBIT 99.3
BY-LAWS
OF
LEAR CORPORATION
(HEREINAFTER CALLED THE "CORPORATION")
AMENDED AS OF MARCH 1, 2000
ARTICLE I
OFFICES
Section 1.1. Registered Office. The registered
office of the Corporation shall be in the City of Wilmington, County of New
Castle, State of Delaware.
Section 1.2. Other Offices. The Corporation may
also have offices at such other places both within and without the State of
Delaware as the Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1. Place of Meetings; Postponement. Meetings of the
stockholders for the election of directors or for any other purpose shall be
held at such time and place, either within or without the State of Delaware, as
shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting or in a duly executed waiver of notice thereof. Any
previously scheduled annual or special meeting of stockholders may be postponed,
and any previously scheduled annual or special meeting of the stockholders may
be cancelled, by resolution of the Board of Directors upon public notice given
prior to the date previously scheduled for such meeting of stockholders.
Section 2.2. Annual Meetings. The Annual Meetings of
stockholders shall be held on such date and at such time as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting, at which meetings the stockholders shall elect by a plurality vote
those members of the Board of Directors to be elected in such year, and transact
such other business as may properly be brought before the meeting. Written
notice of the Annual Meeting stating the place, date and hour of the meeting
shall be given to each stockholder entitled to vote at such meeting not less
than 10 nor more than 60 days before the date of the meeting.
Section 2.3. Nominating Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible to serve
as directors. Nominations of persons for election to the Board of Directors at a
meeting of stockholders may be made (i) by or at the direction of the Board of
Directors or (ii) by any stockholder of the Corporation entitled to vote for the
election of directors at the meeting who complies with the notice procedures set
forth in this Article II, Section 2.3. Such nominations, other than those made
by or at the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to, or mailed and received
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by, the Secretary of the Corporation at the principal executive offices of the
Corporation not less than 60 or more than 90 days prior to the meeting;
provided, however, that if the Corporation has not "publicly disclosed" (in the
manner provided in the last sentence of this Article II, Section 2.3) the date
of the meeting at least 70 days prior to the meeting date, notice may be timely
made by a stockholder under this Article II, Section 2.3 if received by the
Secretary of the Corporation not later than the close of business on the tenth
day following the day on which the Corporation publicly disclosed the meeting
date. Such stockholder's notice shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or re-election 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 (the "Exchange Act") (including such person's written consent to
being named in the proxy statement as a nominee and to serving as director if
elected) ; and (ii) as to the stockholder giving notice and the beneficial
owner, if any, on whose behalf notice is given (A) the name and address of such
stockholder as they appear on the Corporation's books and of any such beneficial
owner, (B) the class and number of shares of capital stock of the Corporation
which are owned beneficially and of record by such stockholder and any such
beneficial owner, (C) a description of all arrangements or understandings
between such stockholder and any such beneficial owner and any other person or
persons (including their names) regarding the nomination, (D) a representation
that such stockholder intends to appear in person or by proxy at the meeting to
nominate the persons named in its notice, and (E) a description of any other
information relating to such stockholder and any such beneficial owner that
would be required to be disclosed in a proxy statement or other filing required
to be made in connection with the solicitation of proxies pursuant to Regulation
14A under the Exchange Act. 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 that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible to serve as a director of the Corporation unless nominated in
accordance with the procedures set forth herein. The presiding officer shall, if
the facts so warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed by the By-Laws, and the
defective nomination shall be disregarded. For purposes of these By-Laws,
"publicly disclosed" or "public disclosure" shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press, or a
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission.
Section 2.4. Notice of Business. At an Annual Meeting of the
stockholders, only such business shall be conducted as shall have been brought
before the meeting (i) by or at the direction of the Board of Directors or (ii)
by any stockholder of the Corporation who complies with the notice procedures
set forth in this Article II, Section 2.4. For business to be properly brought
before an Annual Meeting by a stockholder, the stockholder must deliver written
notice to, or mail such written notice so that it is received by, the Secretary
of the Corporation, at the principal executive offices of the Corporation, not
less than 120 or more than 150 days prior to the first anniversary of the date
of the Corporation's consent solicitation or proxy statement released to
stockholders in connection with the previous year's election of directors or
meeting of stockholders, except that if no Annual Meeting of stockholders or
election by consent was held in
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the previous year or if the date of the Annual Meeting has been changed from the
previous year's meeting, a proposal shall be received by the Corporation within
10 days after the Corporation has "publicly disclosed" the date of the meeting
in the manner provided in Article II, Section 2.3. above. The stockholder's
notice to the Secretary shall set forth (A) as to each matter the stockholder
proposes to bring before the Annual Meeting 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, (B) the name and address of the stockholder
proposing such business as they appear on the Corporation's books and of any
beneficial owner on whose behalf the business is proposed, (C) the class and
number of shares of the Corporation which are owned beneficially and of record
by the stockholder and any such beneficial owner, (D) a description of all
arrangements or understandings between such stockholder and any such beneficial
owner and any other person or persons (including their names) in connection with
the proposal of such business by such stockholder and any other material
interest of such stockholder or beneficial owner in such business, (E) a
representation that such stockholder intends to appear in person or by proxy at
the Annual Meeting to bring such business before the meeting and (F) any other
information relating to such stockholder and any such beneficial owner that
would be required to be disclosed in a proxy statement or other filing required
to be made in connection with the solicitation of proxies relating to such
business pursuant to Regulation 14A under the Exchange Act. At an Annual
Meeting, the presiding officer shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
in accordance with the provisions of this Article II, Section 2.4., and such
business not properly brought before the meeting shall not be transacted.
Whether or not the foregoing procedures are followed, no matter which is not a
proper matter for stockholder consideration shall be brought before the meeting.
Section 2.5. Special Meetings. Unless otherwise prescribed by
law or by the Certificate of Incorporation, Special Meetings of stockholders,
for any purpose or purposes, may be called only by (i) the Chief Executive
Officer, (ii) the President, or (iii) the Secretary of the Corporation, and
shall be called by any such officer at the request in writing of a majority of
the Board of Directors. The business transacted at any Special Meeting of the
stockholders shall be limited to the purposes stated in the notice for the
meeting transmitted to stockholders. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which
the meeting is called shall be given not less than 10 nor more than 60 days
before the date of the meeting to each stockholder entitled to vote at such
meeting.
Section 2.6. Waiver of Notice. Notice of the time, place and
purpose or purposes of any meeting of stockholders may be waived by a written
waiver thereof, signed by the person entitled to notice. Such waiver, 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.
Section 2.7. Record Date. Except as provided by Section 2.16
of this Article II, in order that the Corporation may determine the stockholders
entitled to vote at any meeting of
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stockholders or any adjournment thereof, or entitled to express consent to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix a
record date, which shall not precede the date upon which the resolution fixing
the record date is adopted, and which shall be (i) not more than 60 nor less
than 10 days before the date of a meeting, and (ii) not more than 60 days prior
to the 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 any adjourned meeting.
Section 2.8. List of Stockholders Entitled to Vote. The
officer who has charge of the stock ledger of the Corporation shall prepare and
make, 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
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 meeting during the whole time thereof and may be
inspected by any stockholder who is present.
Section 2.9. 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 2.8. of this Article
II or the books and records of the Corporation, or to vote in person or by proxy
at a meeting of stockholders.
Section 2.10. Quorum; Adjournment. Except as otherwise
provided by law or by the Certificate of Incorporation, the holders of a
majority of the capital stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business. The presiding
officer of the meeting shall have power to adjourn the meeting from time to
time, whether or not there is such a quorum, (i) without notice other than
announcement at the meeting and (ii) with or without the consent of a majority
of the capital stock present (in person or by proxy) at the meeting. A majority
of the capital stock present (in person or by proxy) at a meeting, whether or
not there is a quorum, shall have the power to adjourn the meeting with the
consent of the presiding officer. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might have
been transacted at the meeting as originally noticed. If the meeting is
adjourned in a single adjournment for more than 30 days or in multiple
adjournments for more than 120 days, or if after an adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder entitled to vote at the adjourned meeting
consistent with the new record date. Once a share of capital stock is
represented for any purpose of a meeting, it shall be present for quorum
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purposes for the remainder of the meeting and for any adjournment thereof unless
a new record date is set for the adjourned meeting.
Section 2.11. Voting. When a quorum is present at any
meeting, the affirmative vote of the holders of a majority of the stock
represented and entitled to vote thereat shall decide any question brought
before such meeting, unless the question is one upon which by express provision
of applicable law, the Certificate of Incorporation or these By-Laws, a
different vote is required in which case such express provision shall govern and
control the decision of such question.
Section 2.12. Proxy. Unless otherwise provided in the
Certificate of Incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date, unless the proxy provides for a
longer period. At any meeting of the stockholders, every stockholder entitled to
vote may vote in person or by proxy authorized by an instrument in writing or by
a transmission permitted by law filed in accordance with the procedure
established for the meeting. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission created pursuant to this
paragraph may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used; provided that, such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission. All voting, excepting where otherwise
required by law, the Certificate of Incorporation, the Board of Directors or the
presiding officer at the meeting may be by a voice vote.
Section 2.13. Chairman of Meeting. The Chairman of the Board
of Directors shall preside at all meetings of the stockholders. In the absence
or inability to act of the Chairman, the Vice Chairman, the Chief Executive
Officer, the President or a Vice President (in that order) shall preside, and in
their absence or inability to act another person designated by one of them shall
preside. The Secretary of the Corporation shall act as secretary of each meeting
of the stockholders. In the event of his absence or inability to act, the
chairman of the meeting shall appoint a person who need not be a stockholder to
act as secretary of the meeting.
Section 2.14. Conduct of Meetings; Opening and Closing the
Polls. Meetings of stockholders shall be presided over by the presiding officer,
whose rulings on procedural matters shall be final. The Board of Directors may
adopt by resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board of Directors, the
presiding officer shall have the exclusive right and authority to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment of
such presiding officer, are appropriate for the proper conduct of the meeting.
Such rules, regulations or procedures, whether adopted by the Board of Directors
or prescribed by the presiding officer, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and
safety of those present; (iii) limitations on attendance at or participation in
the meeting to stockholders of record of the Corporation, their
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duly authorized and constituted proxies or such other persons as the presiding
officer shall determine; (iv) restrictions on entry to the meeting after the
time fixed for the commencement thereof; and (v) limitations on the time
allotted to questions or comments by participants. Unless and to the extent
determined by the Board of Directors or the presiding officer, meetings of
stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure. The date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at a meeting shall
be determined by the presiding officer and announced at the meeting.
Section 2.15. Inspectors of Election. The Board of Directors
may, and shall if required by law, in advance of any meeting of stockholders,
appoint one or more inspectors of election, who may be employees of the
Corporation, to act at the meeting or any adjournment thereof and to make a
written report thereof. The Board of Directors may designate one or more persons
as alternate inspectors to replace any inspector who fails to act. In the event
that no inspector so appointed or designated is able to act at a meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. No person who is a candidate for an office at
an election may serve as an inspector at such election.
Each inspector, before entering upon the discharge of his or
her duties, shall take and sign an oath to execute faithfully the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspector or inspectors so appointed or designated shall (i)
ascertain the number of shares of capital stock of the Corporation outstanding
and the voting power of each such share, (ii) determine the shares of capital
stock of the Corporation represented at the meeting and the validity of proxies
and ballots, (iii) count all votes and ballots, (iv) determine and retain for a
reasonable period a record of the disposition of any challenges made to any
determination by the inspectors, and (v) certify their determination of the
number of shares of capital stock of the Corporation represented at the meeting
and such inspectors' count of all votes and ballots. Such certification and
report shall specify such other information as may be required by law. In
determining the validity and counting of proxies and ballots cast at any meeting
of stockholders of the Corporation, the inspectors may consider such information
as is permitted by applicable law. The results of any election at which
inspectors are appointed shall not be deemed final and effective until the
receipt and approval by the Board of Directors of the inspectors' certification
and report.
2.16 Procedures for Action by Written Consent
2.16.1 Requested for Record Date. (a) The record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting shall be as fixed by the Board of Directors or as
otherwise established under this Section 2.16. Any person seeking to have the
stockholders authorize or take corporate action by written consent without a
meeting shall, by written notice addressed to the Secretary and delivered to the
Corporation and signed by a stockholder of record, request that a record date be
fixed for such purpose. The written notice shall contain at a minimum the
information set forth in Section 2.16.1(b). Following receipt of the notice, the
Board of Directors shall have 10 days to determine the validity of the request
for a record date. Following the determination of the
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validity of the request, the Board of Directors may fix a record date for such
purpose which shall be no more than 10 days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors and shall
not precede the date such resolution is adopted. If the Board of Directors fails
within 20 days after the Corporation receives such notice to fix a record date
for such purpose, the record date shall be the day on which the first written
consent is delivered to the Corporation in the manner described in Section 2.16
below unless prior action by the Board of Directors is required under the
General Corporation Law of Delaware, in which event the record date shall be at
the close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
(b) any stockholder's notice required by this Section 2.16.1
shall describe the action that the stockholder proposes to take by consent. For
each such proposal, the notice shall set forth (i) the text of the proposal
(including the text of any resolutions to be effected by consent and/or the
language of any proposed amendment to the bylaws of the corporation), (ii) the
reasons for conducting such business by consent, (iii) any material interest in
the proposal held by such stockholder and the beneficial owner, if any, on whose
behalf the action is to be taken, and (iv) any other information relating to the
stockholder, the beneficial owner, or the proposal that would be required to be
disclosed in filings in connection with the solicitation of proxies or consents
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. To the extent the proposed action by consent involves
the election of directors, the notice shall set forth as to each person whom the
stockholder proposes to elect as a director (i) the name, age, business address
and residence address of the person, (ii) the principal occupation and
employment of the person, (iii) the class or series and number of shares of
capital stock of the Corporation which owned beneficially or of record by the
person and (iv) any other information relating to the person that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies or consents for the election of
directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. In addition to the foregoing, the notice
shall set forth as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the notice is given (i) the name and address of
such stockholder, as they appear on the Corporation's books and of such
beneficial owner, (ii) the class and number of shares of capital stock of the
Corporation which are owned beneficially and of record by such stockholder and
such beneficial owner, (iii) a description of all arrangements or understandings
between such stockholder and such beneficial owner and any other person or
persons regarding the proposed action by consent, (iv) a representation whether
the stockholder or the beneficial owner intends or is part of a group which
intends to (1) deliver a proxy statement and/or consent solicitation statement
to holders of at least the percentage of the Corporation's outstanding capital
stock required to effect the action by consent either to solicit consents or to
solicit proxies to execute consents, and/or (2) otherwise solicit proxies or
consents from stockholders in support of the action to be taken by consent, and
(v) any other information relating to such stockholder that would be required to
be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies or consents relating to the proposed
action by consent pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. The Corporation may require the stockholder
or record and/or beneficial owner requesting a record date for proposed
stockholder
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action by consent to furnish such other information as it may reasonably require
to determine the validity of the request for a record date.
2.16.2 Form of Consent. Every written consent purporting to
take or authorize the taking of corporate action and/or related revocations
(each such written consent and related revocation is referred to in this Section
2.16 as a "Consent") shall bear the date of signature of each stockholder who
signs the Consent, and no Consent shall be effective to take the corporate
action referred to therein unless, within 60 days of the earliest dated Consent
delivered in the manner required by this Section 2.16.2, Consents signed by a
sufficient number of stockholders to take such action are so delivered to the
Corporation.
2.16.3 Delivery of Consent. A Consent shall be delivered to
the Corporation by delivery to its registered office in the State of Delaware or
its principal place of business. Delivery to the Corporation's registered office
shall be made by hand or by certified or registered mail, return receipt
requested.
In the event of the delivery to the Corporation of a Consent,
the Secretary of the Corporation shall provide for the safe-keeping of such
Consent and shall promptly conduct such ministerial review of the sufficiency of
the Consents and of the validity of the action to be taken by shareholder
consent as the Secretary deems necessary or appropriate, including, without
limitation, whether the holders of a number of shares having the requisite
voting power to authorize or take the action specified in the Consent have given
consent; provided, however, that if the corporate action to which the Consent
relates is the removal or replacement of one or more members of the Board of
Directors, the Secretary of the Corporation shall promptly designate two
persons, who shall not be members of the Board of Directors, to serve as
Inspectors with respect to such Consent and such Inspectors shall discharge the
functions of the Secretary of the Corporation under this Section 2.16. If after
such investigation the Secretary or the Inspectors (as the case may be) shall
determine that the Consent is valid and that the action therein specified has
been validly authorized, that fact shall forthwith be certified on the records
of the corporation kept for the purpose of recording the proceedings of meetings
of stockholders, and the Consent shall be filed in such records, at which time
the Consent shall become effective as stockholder action. In conducting the
investigation required by this Section 2.16, the Secretary or the Inspectors (as
the case may be) may, at the expense of the corporation, retain special legal
counsel and any other necessary or appropriate professional advisors, and such
other personnel as they may deem necessary or appropriate to assist them, and
shall be fully protected in relying in good faith upon the opinion of such
counsel or advisors.
ARTICLE III
DIRECTORS
Section 3.1. Duties and Number of Directors. The business and
affairs of the Corporation shall be managed by or under the direction of a Board
of Directors consisting of not less than one (1) nor more than eleven (11)
directors. The exact number shall be determined from time to time by resolution
adopted by the affirmative vote of a majority of the directors in office at the
time of adoption of such resolution.
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Section 3.2. Resignation, Removal and Vacancies. Each
director shall hold office until his successor is elected and qualified,
subject, however, to his or her prior death, resignation, retirement or removal
from office. Any director may resign at any time upon written notice to the
Corporation directed to the Board of Directors or the Secretary of the
Corporation. Such resignation shall take effect at the time specified therein,
and unless otherwise specified therein no acceptance of such resignation shall
be necessary to make it effective. Any director or the entire Board of Directors
may be removed, for Cause, by the vote of the holders of at least a majority of
shares of capital stock then entitled to vote at an election of directors.
Whenever the holders of shares of any class or series of capital stock are
entitled to elect one or more directors by the provisions of the Certificate of
Incorporation, the provisions of the preceding sentence shall apply, in respect
to the removal with Cause of a director or directors so elected, to the vote of
the holders of the outstanding shares of that class or series of capital stock
and not to the vote of the holders of the outstanding shares of capital stock as
a whole. Unless otherwise provided by the Certificate of Incorporation,
vacancies and newly created directorships resulting from any increase in the
authorized number of directors may be filled only by the vote of a majority of
the directors then in office provided that a quorum is present, and any other
vacancy occurring in the Board of Directors may be filled by a majority of the
directors then in office, even if less than a quorum, unless otherwise provided
in the Certificate of Incorporation. Any director elected to fill a vacancy not
resulting from an increase in the number of directors shall have the same
remaining term as that of his or her predecessor. For the purposes of this
Section 3.2, "Cause" is defined as the willful and continuous failure
substantially to perform one's duties to the Corporation or the willful engaging
in gross misconduct materially and demonstrably injurious to the Corporation.
Section 3.3. Special Voting Rights of Stockholders.
Notwithstanding the foregoing, whenever the holders of any one or more classes
or series of preferred stock issued by the Corporation in accordance with the
Corporation's Certificate of Incorporation shall have the right, voting
separately by class or series, to elect directors at an Annual or Special
Meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorship shall be governed by the resolutions of the
Board of Directors applicable to such series of preferred stock.
Section 3.4. Interested Directors. No contract or transaction
between the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or
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transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
MEETINGS OF THE BOARD OF DIRECTORS
Section 3.5. General. The Board of Directors of the
Corporation may hold meetings, both regular and special, either within or
without the State of Delaware. Members of the Board of Directors may participate
in any such meeting by means of conference telephone or similar communications
equipment through which all persons participating in the meeting can hear each
other, and participation by such means shall constitute presence in person at
such meeting.
Section 3.6. First Meeting. The first meeting of each newly
elected Board of Directors may be held immediately following the adjournment of
the Annual Meeting of the stockholders at the same place as such Annual Meeting
and no notice of such meeting shall be necessary to the newly elected directors
in order legally to constitute the meeting, provided a quorum shall be present.
In the event such meeting is not held at such time and place, the meeting may be
held at such time and place as shall be specified in a notice given as
hereinafter provided for Special Meetings of the Board of Directors, or as shall
be specified in a written waiver signed by all of the directors.
Section 3.7. Notice. Written notice of each meeting of the
Board of Directors shall be given which shall state the date, time and place of
the meeting. The written notice of any meeting shall be given at least 24 hours
in advance of the meeting to each director. Notice may be given by letter,
telegram, telex or facsimile and shall be deemed to have been given when
deposited in the United States mail, delivered to the telegraph company or
transmitted by telex or facsimile, as the case may be. Notice of any meeting of
the Board of Directors for which a notice is required may be waived in writing
signed by the person or persons entitled to such notice, whether before or after
the time of such meeting, and such waiver shall be equivalent to the giving of
such notice. Attendance of a director at any such meeting shall constitute a
waiver of notice thereof, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business because such
meeting is not lawfully convened. Neither the business to be transacted at nor
the purpose of any meeting of the Board of Directors for which a notice is
required need be specified in the notice, or waiver of notice, of such meeting.
Section 3.8. Special Meetings. Special Meetings of the Board
of Directors may be called by the Chairman of the Board of Directors or the
President either personally, or by courier, telephone, telefax, mail or
telegram. Special Meetings shall be called by the Chairman or President in like
manner and on like notice at the written request of a majority of the directors
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comprising the Board of Directors stating the purpose or purposes for which such
meeting is requested.
Section 3.9. Quorum. At all meetings of the Board of
Directors a majority of the then duly elected directors shall constitute a
quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by
statute or by the Certificate of Incorporation. If a quorum shall not be present
at any meeting of the Board of Directors, the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 3.10. Action Without a Meeting. Unless otherwise
provided by the Certificate of Incorporation, any action required or permitted
to be taken at any meeting of the Board of Directors or any committee designated
by the Board of Directors may be taken without a meeting if all members of the
Board of Directors or of such committee consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors or such committee.
Section 3.11. Chairman of the Meeting. Meetings of the Board
of Directors shall be presided over by the Chairman, if any, or in his absence
by the Vice Chairman, if any, or in his absence by the President, or in their
absence by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
COMMITTEES OF DIRECTORS
Section 3.12. General. The Board of Directors may designate
one or more committees, each committee to consist of one or more of the
directors of the Corporation. 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, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or
disqualified member, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he, she or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. Any such
committee, to the extent allowed by law and provided in the resolution of the
Board of Directors establishing such committee, 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.
Section 3.13. Meeting. Each committee shall keep regular
minutes of its meetings and shall file such minutes and all written consents
executed by its members with the Secretary of the Corporation. Each committee
may determine the procedural rules for meeting and conducting its business and
shall act in accordance therewith, except as otherwise provided herein or
required by law. Adequate provision shall be made for notice to members of all
meetings; a majority of the members shall constitute a quorum unless the
committee shall consist
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of one or two members, in which event one member shall constitute a quorum; and
all matters shall be determined by a majority vote of the members present.
Action may be taken by any committee without a meeting if all members thereof
consent thereto in writing, and the writing or writings are filed with the
minutes of the proceedings of such committee. Members of any committee of the
Board of Directors may participate in any meeting of such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating may hear each other, and participation in a meeting by
such means shall constitute presence in person at such meeting.
COMPENSATION OF DIRECTORS
Section 3.14. General. In the discretion of the Board of
Directors, the directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors. In addition, in the
discretion of the Board of Directors, the directors may receive a stated salary
for serving as directors or any other form of compensation deemed appropriate.
No such payment shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for serving on or attending
committee meetings.
Section 3.15. Mandatory Retirement. The mandatory retirement
age for directors is 70 years, except for those directors completing a current
term of office. No person that has attained the age of 70 years before the first
day of the proposed term of office may become a nominee for election as a
director or an appointee as director to fill any vacancy on the Board of
Directors whether such vacancy is created by death, retirement or expansion of
the Board of Directors.
ARTICLE IV
OFFICERS
Section 4.1. General. The officers of the Corporation shall
be chosen by the Board of Directors and shall be a Chief Executive Officer, a
President, a Secretary and a Treasurer. The Board of Directors, in its
discretion, may also choose a Chairman of the Board of Directors (who must be a
director) and one or more Vice Presidents, Assistant Secretaries, Assistant
Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or
these By-Laws. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors,
need such officers be directors of the Corporation.
Section 4.2. Election. The Board of Directors at its first
meeting held after each Annual Meeting of stockholders shall elect the officers
of the Corporation who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors; and all officers of the Corporation shall hold
office until their successors are chosen and qualified, or until their earlier
resignation or removal. Any officer may resign at any time upon written notice
to the Corporation directed to
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the Board of Directors and the Secretary. Such resignation shall take effect at
the time specified therein, and unless otherwise specified therein no acceptance
of such resignation shall be necessary to make it effective. The Board of
Directors may remove any officer or agent with or without cause at any time by
the affirmative vote of a majority of the Board of Directors. Any such removal
shall be without prejudice to the contractual rights of such officer or agent,
if any, with the Corporation, but the election of an officer or agent shall not
of itself create any contractual rights. Any vacancy occurring in any office of
the Corporation by death, resignation, removal or otherwise may be filled by the
Board of Directors. The salaries of all officers of the Corporation shall be
fixed by the Board of Directors.
Section 4.3. Voting Securities Owned by the Corporation.
Notwithstanding anything to the contrary contained herein, powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the President or any Vice President and any such
officer may, in the name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at
any meeting of security holders of any corporation in which the Corporation may
own securities and at any such meeting shall possess and may exercise any and
all rights and powers incident to the ownership of such securities and which, as
the owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
Section 4.4. Chairman of the Board of Directors. The Chairman
of the Board of Directors, if there be one, shall preside at all meetings of the
stockholders and of the Board of Directors. In the absence or disability of the
Chief Executive Officer, he shall be the Chief Executive Officer of the
Corporation, and except where by law the signature of the President is required,
the Chairman of the Board of Directors shall possess the same power as the
President to sign all contracts, certificates and other instruments of the
Corporation which may be authorized by the Board of Directors. During the
absence or disability of the President, the Chairman of the Board of Directors
shall exercise all the powers and discharge all the duties of the President. The
Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these
By-Laws or by the Board of Directors.
Section 4.5. Chief Executive Officer. The Chief Executive
Officer shall be the principal executive officer of the Corporation. The Chief
Executive Officer, except where by law the signature of the President is
required, shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by
the Board of Directors. During the absence or disability of the President and
the Chairman of the Board of Directors, the Chief Executive Officer shall
exercise all the powers and discharge all the duties of the President. The Chief
Executive Officer shall also perform such other duties and may exercise such
other powers as from time to time may be assigned to him by these By-Laws or by
the Board of Directors.
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Section 4.6. President. The President shall, subject to the
control of the Board of Directors, the Chairman of the Board of Directors, if
there be one, and the Chief Executive Officer, have general supervision of the
business and affairs of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. He shall execute
all bonds, mortgages, contracts and other instruments of the Corporation
requiring a seal under the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and except that the other
officers of the Corporation may sign and execute documents when so authorized by
these By-Laws, the Board of Directors or the President. In the absence or
disability of the Chairman of the Board of Directors, if there be one, and the
Chief Executive Officer, the President shall preside at all meetings of the
stockholders and the Board of Directors. If there be no Chairman of the Board of
Directors or Chief Executive Officer, the President shall be the Chief Executive
Officer of the Corporation. The President shall also perform such other duties
and may exercise such other powers as from time to time may be assigned to him
by these By-Laws or by the Board of Directors.
Section 4.7. Vice Presidents. At the request of the President
or in his absence or in the event of his inability or refusal to act (and if
there be no Chairman of the Board of Directors or Chief Executive Officer), the
Vice President or the Vice Presidents if there is more than one (in the order
designated 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. Each Vice President shall perform such other
duties and have such other powers as the Board of Directors from time to time
may prescribe. If there be no Chairman of the Board of Directors, no Chief
Executive Officer and no Vice President, the Board of Directors shall designate
the officer of the Corporation who, in the absence of the President or in the
event of the inability or refusal of the President to act, 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.
Section 4.8. Secretary. The Secretary shall attend all
meetings of the Board of Directors and all meetings of stockholders and record
all the proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing and special committees
of the Board of Directors when required. The Secretary shall give, or cause to
be given, notice of all meetings of the stockholders and Special Meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or Chief Executive Officer, under whose supervision he
shall be. If the Secretary shall be unable or shall refuse to cause to be given
notice of all meetings of the stockholders and Special Meetings of the Board of
Directors, and if there be no Assistant Secretary, then either the Board of
Directors or the Chief Executive Officer may choose another officer to cause
such notice to be given. The Secretary shall have custody of the seal of the
Corporation and the Secretary or any Assistant Secretary, if there be one, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by the signature of the Secretary or by the
signature of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature. The Secretary shall see that all books,
reports, statements, certificates and other documents and records required by
law to be kept or filed are properly kept or filed, as the case may be.
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Section 4.9. Treasurer. The Treasurer shall have the custody
of the corporate funds and securities and shall keep full and accurate accounts
of receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chief Executive Officer and the Board of
Directors, at its regular meetings, or when the Board of Directors so requires,
an account of all his transactions as Treasurer and of the financial condition
of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance of
the duties of his office and for the restoration to the Corporation, in case of
his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
Section 4.10. Assistant Secretaries. Except as may be
otherwise provided in these By-Laws, Assistant Secretaries, if there be any,
shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chief Executive Officer, the
President, any Vice President, if there be one, or the Secretary, and in the
absence of the Secretary or in the event of his disability or refusal to act,
shall perform the duties of the Secretary, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Secretary.
Section 4.11. Assistant Treasurers. Assistant Treasurers, if
there be any, shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors, the Chief Executive
Officer, the President, any Vice President, if there be one, or the Treasurer,
and in the absence of the Treasurer or in the event of his disability or refusal
to act, shall perform the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
Treasurer. If required by the Board of Directors, an Assistant Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance of
the duties of his office and for the restoration to the Corporation, in case of
his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
Section 4.12. Other Officers. Such other officers as the
Board of Directors may choose shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors. The Board
of Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
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ARTICLE V
STOCK
Section 5.1. Form of Certificates. Every holder of stock in
the Corporation shall be entitled to have a certificate signed, in the name of
the Corporation (i) by the Chairman of the Board of Directors, the Chief
Executive Officer, the President or a Vice President and (ii) by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation. If
the Corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the Corporation shall issue to represent such class or
series of stock; provided that, except as otherwise provided in Section 202 of
the General Corporation Law of the State of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 5.2. Signatures. Where a certificate is countersigned
by (i) a transfer agent other than the Corporation or its employee, or (ii) a
registrar other than the Corporation or its employee, any other signature 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 5.3. 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 advertise the same in
such manner as the Board of Directors shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
Section 5.4. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these By-Laws. Transfers of
stock shall be made on the books of the Corporation only by the person named in
the certificate or by his attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person or persons entitled thereto, cancel the old certificate and record
the transaction upon its books.
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Section 5.5. Registered Stockholders. 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 share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
ARTICLE VI
NOTICES
Section 6.1. Notices. Whenever written 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, such notice may be given by
mail, addressed to such director, member of a committee or stockholder at his
address as it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Written notice may also be given
personally or by courier, facsimile, telegram, telex or cable.
Section 6.2. Waivers 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 said notice, whether before
or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1. Dividends. Dividends upon the capital stock of
the Corporation, subject to the provisions of the Certificate of Incorporation,
if any, may be declared by the Board of Directors at any regular or Special
Meeting, and may be paid in cash, in property, or in shares of the capital stock
or rights to acquire the same. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the Board of Directors from time to time, in its absolute discretion,
deems proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for any proper purpose, and the Board of Directors may modify or abolish any
such reserve.
Section 7.2. Disbursements. All checks or demands for money
and notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 7.3. Fiscal Year. The fiscal year of the
Corporation shall be fixed by resolution of the Board of Directors.
Section 7.4. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization and
the words "Corporate Seal, Delaware".
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The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Power to Indemnify in Actions, Suits or
Proceedings Other Than Those by or in the Right of the Corporation. Subject to
Section 8.3 of this Article VIII, the Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was a director or officer of the Corporation serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceedings, had
reasonable cause to believe that his conduct was unlawful.
Section 8.2. Power to Indemnify in Actions, Suits or
Proceedings by or in the Right of the Corporation. Subject to Section 8.3 of
this Article VIII, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was a director or
officer of the Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation; except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 8.3. Authorization of Indemnification. Any
indemnification under this Article VIII (unless ordered by a court) shall be
made by the Corporation only as authorized in
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the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this
Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (ii) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders. To the extent, however, that a director, officer, employee or
agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case.
Section 8.4. Good Faith Defined. For purposes of any
determination under this Article VIII, a person shall be deemed to have acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the Corporation or
another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in this Section 8.4 shall mean
any other corporation or any partnership, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request
of the Corporation as a director, officer, employee or agent. The provisions of
this Section 8.4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as
the case may be.
Section 8.5. Indemnification by a Court. Notwithstanding any
contrary determination in the specific case under Section 8.3 of this Article
VIII, and notwithstanding the absence of any determination thereunder, any
director, officer, employee or agent may apply to any court of competent
jurisdiction in the State of Delaware for indemnification to the extent
otherwise permissible under Sections 8.1 and 8.2 of this Article VIII. The basis
of such indemnification by a court shall be a determination by such court that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standards of conduct set forth
in Section 8.1 or 8.2 of this Article VIII, as the case may be. Neither a
contrary determination in the specific case under Section 8.3 of this Article
VIII nor the absence of any determination thereunder shall be a defense to such
application or create a presumption that the director, officer, employee or
agent seeking indemnification has not met any applicable standard of conduct.
Notice of any application for indemnification pursuant to this Section 8.5 shall
be given to the Corporation promptly upon the filing of such application. If
successful, in whole or in part, the director, officer, employee or agent
seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
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Section 8.6. Expenses Payable in Advance. Expenses incurred
by a director or officer in defending or investigating a threatened or pending
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director, officer, employee or agent to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Corporation as authorized in this Article VIII.
Section 8.7. Nonexclusivity of Indemnification and
Advancement of Expenses. The indemnification and advancement of expenses
provided by or granted pursuant to this Article VIII shall not be deemed
exclusive of any other rights to which a person seeking indemnification or
advancement of expenses may be entitled under any By-Law, agreement, contract,
vote of stockholders or disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise, both
as to action in his official capacity and as to action in another capacity while
holding such office, it being the policy of the Corporation that indemnification
of the persons specified in Section 8.1 and 8.2 of this Article VIII shall be
made to the fullest extent permitted by law. The provisions of this Article VIII
shall not be deemed to preclude the indemnification of any person who is not
specified in Section 8.1 or 8.2 of this Article VIII but whom the Corporation
has the power or obligation to indemnify under the provisions of the General
Corporation Law of the State of Delaware, or otherwise.
Section 8.8. Insurance. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director or officer
of the Corporation, or is or was a director, officer, employee or agent of the
Corporation serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power or the obligation to
indemnify him against such liability under the provisions of this Article VIII.
Section 8.9. Certain Definitions. For purposes of this
Article VIII, references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is or was a
director or officer of such constituent corporation or is or was a director,
officer, employee or agent of such constituent corporation serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall stand in the same position under the
provisions of this Article VIII with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued. For purposes of this Article VIII, references
to "fines" shall include any excise taxes assessed on a person with respect to
an employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer, employee or agent
of the Corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and
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in a manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article VIII.
Section 8.10. Survival of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Section 8.11. Limitation on Indemnification. Notwithstanding
anything contained in this Article VIII to the contrary, except for proceedings
to enforce rights to indemnification or to seek determination of the right to
indemnification by a court, which shall be governed by Section 8.5 hereof, the
Corporation shall not be obligated to indemnify any director, officer, employee
or agent in connection with a proceeding (or part thereof) initiated by such
person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 8.12. Indemnification of Employees and Agents. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of expenses
to employees and agents of the Corporation similar to those conferred in this
Article VIII to directors and officers of the Corporation.
Section 8.13. No amendment to or repeal of this Article VIII
shall apply to or have any effect on the rights of any person for or with
respect to acts or omissions of such person occurring prior to such amendment or
repeal.
ARTICLE IX
AMENDMENTS
Section 9.1. These By-Laws may be altered, amended or
repealed, in whole or in part, or new By-Laws may be adopted by the stockholders
or by the Board of Directors, provided, however, that notice of such alteration,
amendment, repeal or adoption of new By-Laws be contained in the notice of such
meeting of stockholders or Board of Directors as the case may be. All such
amendments must be approved by either the holders of a majority of the
outstanding capital stock entitled to vote thereon (except that any such
amendment to Sections 2.5, 3.1, 3.2 or 9.1 of these Bylaws must be approved by
the holders of 66 2/3% of the outstanding capital stock entitled to vote
thereon) or by a majority of the entire Board of Directors then in office.
Section 9.2. Entire Board of Directors. As used in this
Article IX and in these By-Laws generally, the term "entire Board of Directors"
means the total number of directors which the Corporation would have if there
were no vacancies.
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