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) December 3, 1999
MFN Financial Corporation
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(Exact name of registrant as specified in charter)
Delaware 1-10176 36-3627010
(State of other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
100 Field Drive, Lake Forest, Illinois 60045
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (847) 295-8600
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n/a
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(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events.
On December 3, 1999, the Board of Directors approved the Amended and
Restated By-laws of the Corporation, which added Section 14 to Article II and
Section 21 to Article III with respect to stockholder proposals and nominations
to the Board of Directors. In general, stockholders who wish to make proposals
to be presented at an annual meeting of stockholders, but not have them included
in the Corporation's proxy statement, must give notice to the Corporation in
accordance with Section 14 of Article II and Section 21 of Article III of the
By-Laws not less than 90 nor more than 120 days prior to the anniversary of the
preceding year's annual meeting of stockholders. A copy of the Amended and
Restated By-Laws of the Corporation is attached as Exhibit 3.2 to this Form 8-K.
For the annual meeting to take place in 2000, stockholders wishing to
include proposals in the Corporation's Proxy Statement and Form of Proxy,
subject to SEC rules, must submit such proposals so that they are received by
the Secretary of the Corporation at its Lake Forest headquarters by no later
than January 10, 2000. Stockholders wishing to present proposals at the annual
meeting (but not include them in the Proxy Statement) are required to notify the
Secretary of the Corporation in writing in accordance with the By-law provisions
referred to above at its Lake Forest headquarters by no later than January 31,
2000.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit No. Description of Document
3.2 Amended and Restated By-laws.
<PAGE>
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 hereunto duly authorized.
MFN Financial Corporation
Date: December 3, 1999 By: /s/ Mark E. Dapier
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Its: Executive V.P. and Secretary
EXHIBIT 3.2
MFN FINANCIAL CORPORATION
AMENDED AND RESTATED
BY-LAWS
(Effective December 3, 1999)
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County of
New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS; STOCKHOLDER PROPOSALS
Section 1. All meetings of the stockholders for the election of directors shall
be held at such place (within or without the State of Delaware) as may be fixed
from time to time by the board of directors and stated in the notice of the
meeting. Meetings of stockholders for any other purpose may be held at such time
and place, within or without the State of Delaware, as shall be stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Commencing in 2000, annual meetings of stockholders shall be held on
the fourth Tuesday of April (if not a legal holiday and if a legal holiday, then
on the next secular day following), at 10:00 a.m., or at such other date and
time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. At each annual meeting, the shareholders
shall elect, by a plurality vote, a board of directors, and transact such other
business as may properly be brought before the meeting.
Section 3. Written notice of the meeting stating the place, date and hour of the
meeting shall be given to each stockholder entitled to vote at such meeting not
less than ten (10) nor more than sixty (60) days before the date of the meeting.
Section 4. The officer who has charge of the stock ledger of the corporation
shall prepare and make, at least ten (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
ten (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. The original or duplicate stock ledger shall be the only evidence as to
who are the stockholders entitled to examine such list, the stock ledger or the
books of the corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 5. Special meetings of the stockholders for any purpose or purposes,
unless otherwise prescribed by statute or by the certificate of incorporation,
may be called by the chairman or the chief executive officer of the corporation
and shall be called by either such person at the request in writing of a
majority of the board of directors, or at the request in writing of stockholders
owning in amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 6. Written notice of a special meeting of the stockholders 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 ten (10) nor more than sixty
(60) days before the date of the meeting, to each stockholder entitled to vote
at such meeting.
Section 7. An affidavit of the secretary or an assistant secretary or the
transfer agent of the corporation that notice of a stockholders meeting has been
given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
Section 8. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
Section 9. The holders of a majority of the 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 except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy or the chairman or the chief executive
officer, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. 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 notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at a meeting.
Section 10. When a quorum is present at any meeting, the vote of the holders of
a majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which, by express provision of the statutes of the State of Delaware
or the certificate of incorporation, a different vote is required, in which
case, such express provision shall govern and control the decision of such
question.
Section 11. 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 one (1) year from
its date, unless the proxy provides for a longer period. Persons holding stock
in fiduciary capacity shall be entitled to vote the shares so held. Shares of
capital stock owned by the corporation shall not be voted, directly or
indirectly.
Section 12. If shares or other securities having voting power stand of record in
the names of two or more persons, whether fiduciaries, members of a partnership,
joint tenants, tenants in common, tenants by the entirety or otherwise, or if
two or more persons have the same fiduciary relationship respecting the same
shares, unless the secretary of the corporation is given written notice to the
contrary and is furnished with a copy of the instrument or order appointing them
or creating the relationship wherein it is so provided, their acts with respect
to voting shall have the following effect;
(a) If only one votes, his acts binds all;
(b) If more than one vote, the act of the majority so voting
binds all;
(c) If more than one vote, but the vote is evenly split on any
particular matter, each faction may vote the securities in question
proportionally, or any person voting the shares, or a beneficiary, if
any, may apply to the Court of Chancery or such other court as may have
jurisdiction to appoint an additional person to act with the persons so
voting the shares, which shall then be voted as determined by a
majority of such persons and the person appointed by the Court. If the
instrument so filed shows that any such tenancy is held in unequal
interests, a majority or even split for the purpose of this subsection
shall be a majority or even split in interest.
Section 13. Unless otherwise provided in the certificate of incorporation, any
action required to be taken at any annual or special meeting of stockholders of
the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
STOCKHOLDER PROPOSALS
Section 14. Any proposals which may be made by stockholders of the corporation
with respect to actions to be taken by the board of directors of the
corporation, other than nominations for the election of the directors, must be
made by notice in writing, delivered or mailed by first class United States
mail, postage prepaid, to the Secretary of the corporation not less than 90 nor
more than 120 days prior to the anniversary of the preceding year's annual
meeting of the stockholders; provided, however, that in the event that the date
of the annual meeting is advanced by more than 30 days or delayed by more than
60 days from such anniversary date, notice by the stockholder, to be timely,
must be so delivered not later than the 14th day following the date on which
public announcement of the date of such meeting is first made.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board shall
be not less than five nor more than fifteen. Within the limits above specified,
the number of directors shall be determined by resolution of the board of
directors, but absent such resolution, shall be seven. The directors shall be
elected at the annual meeting of the stockholders, except as provided in Section
2 of this Article, and each director elected shall hold office until his
successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any increase
in the authorized number of directors may be filed by a majority of the
directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are not directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or newly created directorship, the directors then in office
shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of shares at the time outstanding having the right to vote for
such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by its board of
directors which may exercise all such powers of the corporation and do all such
lawful acts and things as are not by statute or by the certificate of
incorporation or by these by-laws directed or required to be exercised or done
by the stockholders.
Section 4. Any director, member of a committee or other officer may resign at
any time. Such resignation shall be made in writing, and shall take effect at
the time specified therein, and if no time be specified, at the time of its
receipt by the President or Secretary. The acceptance of a resignation shall not
be necessary to make it effective.
Section 5. A member of the board of directors or a member of any committee
designated by the board of directors shall, in the performance of his duties, be
fully protected in relying in good faith upon the books of account or reports
made to the corporation by any of its officers, or by an independent certified
public accountant, or by an appraiser selected with reasonable care by the board
of directors or by any committee, or in relying in good faith upon other records
of the corporation.
MEETINGS OF THE
BOARD OF DIRECTORS
Section 6. Except as hereinafter provided, any director or directors may be
removed either with or without cause at any time by the affirmative vote of the
holders of a majority of all the shares of stock outstanding and entitled to
vote at a special meeting of the stockholders called for the purpose and the
vacancies thus created may be filled, at the meeting held for the purpose of
removal, by the affirmative vote of a majority in interest of the stockholders
entitled to vote at such meeting.
Section 7. The board of directors of the corporation may hold meetings, both
regular and special, either within or without the State of Delaware.
Section 8. The annual meeting of the board of directors shall be held
immediately following the annual meeting of stockholders at the place thereof,
or at such other time and place as then may be determined by the chairman, for
the purpose of appointing directors to committees of the board and electing the
officers of the corporation for the ensuing year.
Section 9. Regular meetings of the board of directors may be held without notice
at such time and at such place as shall from time to time be determined by the
board.
Section 10. Special meetings of the board of directors or committees thereof may
be called by the chairman or the chief executive officer on two days' notice to
each director, either personally or by mail, facsimile or other written form;
special meetings shall be called by the chairman or secretary in like manner and
on like notice on the written request of a majority of the directors.
Section 11. At all meetings of the board of directors a majority of the
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. Common
or interested directors may be counted in determining the presence of a quorum
at a meeting of the board of directors. 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 12. Unless otherwise restricted by the certificate of incorporation or
these by-laws, any action required or permitted to be taken at any meeting of
the board of directors or any committee thereof may be taken without a meeting,
if all members of the board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the board of directors or committee.
Section 13. During any emergency period following a catastrophe or other
emergency contemplated by Section 110 of the General Corporation Laws of the
State of Delaware as a result of which a quorum of the board of directors or a
standing committee thereof cannot readily be convened for action, a majority of
the directors who can readily convene shall constitute a quorum, for the purpose
of filling vacancies in the board of directors and among the elected and
appointed officers of the corporation.
Section 14. Unless otherwise restricted by the certificate of incorporation or
these by-laws, members of the board of directors, or any committee designated by
the board of directors, may participate in a meeting of the board of directors,
or any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
COMMITTEE OF DIRECTORS
Section 15. The board of directors shall have standing executive, audit,
personnel and compensation, and nominating committees, and may, by resolution or
resolutions passed by a majority of the whole board, designate additional
committees which shall bear such name and have the powers and duties as may be
fixed and determined by the board of directors. The size and membership of each
standing or other committee shall be determined by the board of directors from
time to time. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors at the next meeting of the board of
directors.
Section 16. The executive committee shall include and shall be chaired by the
chairman of the board of directors. During the interval between the meetings of
the board of directors, in cases where the board of directors cannot readily be
convened, the executive 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, 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 amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution, amending the by-laws of the corporation, declaring a dividend, or
authorizing the issuance of stock.
Section 17. The audit committee shall review the audit schedule and results of
audits performed by internal auditors, meet with and review results of auditors
of the corporation and its subsidiaries performed by independent public auditors
and recommend the selection of independent public auditors. Directors who are
also employees of the corporation shall not be voting members of this committee.
Section 18. The personnel and compensation committee shall recommend to the
board of directors salaries and bonuses of all executive officers, oversee the
corporation's compensation, incentive, and employee benefit programs, and
administer the corporation's retirement, incentive compensation and stock option
plans. The committee shall also review other personnel matters as may be
appropriate and make recommendations to the chief executive officer and the
board of directors. Directors who are also employees of the corporation shall
not be voting members of this committee.
Section 19. Subject to Section 21 below, the nominating committee shall consider
nominees to the board of directors from names recommended by stockholders and
shall nominate persons to be elected to the board of directors at the annual
meeting of stockholders or when vacancies are to be filled. The committee shall
also review and recommend to the board of directors changes in compensation of
directors.
COMPENSATION OF DIRECTORS
Section 20. By resolution of the board of directors, a non-employee director may
receive compensation for services as a director. Also, the board of directors
may allow a fixed sum and expenses of attendance, for attendance at each regular
or special meeting of the board of directors or a committee thereof. Nothing
herein shall be construed to preclude any director from serving the corporation
in any other capacity and receiving compensation therefor.
BOARD NOMINATIONS
Section 21. Nominations for the election of directors may be made by the board
of directors or by any stockholder entitled to vote for the election of
directors. Stockholder nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the Secretary
of the corporation not less than 90 nor more than 120 days prior to the
anniversary of the preceding year's annual meeting of the stockholders;
provided, however, that in the event that the date of the annual meeting is
advanced by more than 30 days or delayed by more than 60 days from such
anniversary date, notice by the stockholder, to be timely, must be so delivered
not later than the 14th day following the date on which public announcement of
the date of such meeting is first made.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the certificate
of incorporation or of these by-laws, notice is required to be given to any
director or stockholder, it shall not be construed to mean personal notice, but
such notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by facsimile (at a telephone number provided by such
director for such purpose) or by recognized overnight delivery service.
Section 2. Whenever any notice is required to be given under the provisions of
the statutes or of the certificate of incorporation or of these by-laws, 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. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends the 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, board of directors or members of
a committee of directors need be specified in any written waiver of notice.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a chairman of the board of directors, a president, a
vice-president, a secretary and a treasurer. The board of directors may also
choose additional vice presidents, one or more assistant secretaries, and one or
more assistant treasurers. The board of directors shall designate either the
chairman of the board of directors or the president to be the chief executive
officer of the corporation. Any number of offices may be held by the same
person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 2. The board of directors may appoint such other officers and agents as
it shall deem necessary who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the board.
Section 3. The salaries of all executive officers of the corporation shall be
fixed by the board of directors.
Section 4. The officers of the corporation shall hold office until their
successors are chosen and qualify or until their earlier resignation and/or
removal. Any officer elected or appointed by the board of directors may be
removed at any time, with or without cause, by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors. Any officer may resign at
any time by giving written notice to the board of directors, the chairman of the
board, the president or the secretary. Such resignation shall take effect at the
time specified therein; and unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
THE CHAIRMAN OF THE
BOARD OF DIRECTORS
Section 5. The chairman of the board of directors shall preside at all meetings
of the stockholders and directors. If he is not designated chief executive
officer, he shall, in the absence or disability of such officer, act in his
place and stead, and he shall have such additional powers and duties as may be
assigned by the chief executive officer or the board of directors.
THE PRESIDENT
Section 6. The president, if he is not designated chief executive officer,
shall, in the absence or disability of such officer, act in his place and stead,
and he shall have such other powers and duties as may be assigned by the chief
executive officer or the board of directors.
THE CHIEF
EXECUTIVE OFFICER
Section 7. The chief executive officer (i.e., the chairman of the board of
directors or the president, as designated by the board of directors) shall have
general and active management and control of the business and affairs of the
corporation subject to the control of the board of directors, and shall see that
all orders and resolutions of the board are carried into effect.
THE VICE PRESIDENT
Section 8. In the absence of the chairman and the president, or in the event of
their inability or refusal to act, the vice president (or in the event there be
more than one vice president, the vice president in the order designated or in
the absence of any designation, then in the order of their election) shall
perform the duties of the chairman and president, and when so acting, shall have
all of the powers of and be subject to all the restrictions upon the chairman
and the president. The vice president shall perform such other duties and have
such other powers and duties as may be assigned by the chief executive officer
or the board of directors.
THE SECRETARY
AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of directors and
all meetings of the stockholders and record all the proceedings of the meetings
of the stockholders and record all of the meetings of the corporation and of the
board of directors in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. He 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 assigned by
the chief executive officer or the board of directors. He shall have custody of
the stock ledger (which may, however, be kept by any transfer agent or agents or
the corporation under his direction) and the corporate seal of the corporation
and he, or any assistant secretary, shall have the authority to affix the same
to any instrument requiring it and when so affixed, it may be attested by his
signature or by the signature of 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.
Section 10. The assistant secretary, or if there be more than one, the assistant
secretaries in order determined by the board of directors (or if there be no
such determination, then in the order of their election) shall, in the absence
of the secretary or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the secretary and shall perform such other
duties and have such other powers as may be assigned by the chief executive
officer or the board of directors.
THE TREASURER
AND ASSISTANT TREASURER
Section 11. 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 money
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.
Section 12. He 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.
Section 13. If required by the board of directors, he 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 14. The assistant treasurer, or if there shall be more than one, the
assistant treasurer in the order determined by the board of directors (or if
there be no such determination, then in the order of their election), shall, in
the absence of the treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers and duties as may be assigned by the
chief executive officer or the board of directors.
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. The board of directors may, at any time and from time to time, if all
of the shares of capital stock which the corporation is authorized by its
certificate of incorporation to issue have not been issued, subscribed for, or
otherwise committed to be issued, issue or take subscriptions for additional
shares of its capital stock up to the amount authorized in its certificate of
incorporation. Such stock shall be issued and the consideration paid therefor in
the manner prescribed by law. Shares of stock with par value may be issued for
such consideration, having a value not less than par value thereof.
Section 2. Every holder of stock in the corporation shall be entitled to have a
certificate, signed by, or in the name of the corporation by, the chairman or
the president or a vice president, and the treasurer or an assistant treasurer
or the secretary or an assistant secretary of the corporation, certifying the
number of shares owned by him in the corporation; provided that the board of
directors may provide by one or more resolutions that some or all of any or all
classes or series of the corporation's stock shall be uncertificated shares.
Certificates may be issued for partly paid shares and in such case upon the face
or back of the certificates issued to represent any such partly paid shares, the
total amount of the consideration to be paid therefor, and the amount paid
thereon, shall be specified.
Section 3. The corporation shall have authority to appoint a transfer agent and
a registrar upon proper resolution of the board of directors.
Section 4. Any of or all the signatures of the corporation's officers on the
certificate may be facsimile if a transfer agent or registrar has been appointed
and the authorized signature of such transfer agent or registrar is manually
signed, otherwise at least one corporate officer's signature shall be manually
signed. 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.
LOST CERTIFICATES
Section 5. The board of directors may direct a new certificate or certificates
to be issued in place of any certificate or certificates theretofore issued by
the corporation alleged to have been lost, stolen, or destroyed upon the making
of an affidavit of that by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or give the corporation a bond
in such sum or such indemnification as it may direct against any claim that may
be made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFERS OF STOCK
Section 6. 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, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 7. In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect to any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix, in advance, a record date, which shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action. A
determination of stockholders of a record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
Section 8. If no record date is fixed by the board of directors:
(a) 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 notice is waived, at the close of business on the day next
preceding the day on which the meeting is held.
(b) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the board
of directors adopts the resolution relating thereto.
REGISTERED STOCKHOLDERS
Section 9. 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 the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. 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, pursuant to law. Dividends
may be paid in cash, in property, or in shares of the capital stock, subject to
the provisions of the certificate of incorporation.
Section 2. Before a payment of any dividend, there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the
directors may from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting and at
any special meeting of the stockholders, when called or by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by resolution of
the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
Section 7. The corporation shall not be governed by the provisions of Section
203 of the General Corporation Law of the State of Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new by-laws may
be adopted by the board of directors at any regular meeting of the board of
directors or at any special meeting of the board of directors if notice of such
alteration, amendment, repeal or adoption of new by-laws be contained in the
notice of such special meeting; or, by the vote of a majority of the total
outstanding stock of the corporation, present in person or by proxy, at any
meeting of stockholders at which a quorum is present.
