SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-K/A
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1997
Commission file number 0-25998
WASTE SYSTEMS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
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Delaware 95-4203626
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
420 Bedford Street, Suite 300
Lexington, Massachusetts 02173
(Address of principal executive offices) (Zip Code)
(781) 862-3000
(Registrant's telephone number, including area code)
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Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 par value per share
Series F Warrants
Placement Agent Warrants
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.
As of March 24, 1998, the market value of the voting stock of the
Registrant held by non-affiliates of the Registrant was $66,854,700.
he number of shares of the Registrant's common stock, par value $.01
per share, outstanding as of March 24, 1998 was 3,911,181.
<PAGE>
Part III, Items 10, 11, 12 and 13 of the Form 10-K filed with the
Securities and Exchange Commission on March 27, 1998 is hereby amended and
restated in full by adding those items as follows:
PART III
Item 10. Directors and Executive Officers of the Registrant
Information Regarding Directors
The following table and biographical descriptions set forth certain
information as of April 15, 1998, unless otherwise specified, with respect to
the seven Directors of the Company, all of whom are nominees for reelection at
the 1998 Annual Meeting of Stockholders, based on information furnished to the
Company by each Director.
Directors
Director
Name Age Since
General Nominees
Jay Matulich 43 1995
Philip W. Strauss 49 1996
Robert Rivkin 39 1997
Nominees for election by Preferred Stock
David J. Breazzano 41 1997
Charles Johnston 63 1997
Judy K. Mencher 41 1997
William B. Philipbar 72 1997
Jay J. Matulich. Mr. Matulich is a Managing Director of International
Capital Growth Limited ("ICG"), formerly Capital Growth International L.L.C.
and U.S. Sachem Financial Consultants, L.P. He has held this position since
1994. From May 1990 to October 1994, Mr. Matulich was a Vice President of
Gruntal & Co., Incorporated, investment bankers. Mr. Matulich was elected to the
Board of Directors in March 1995 pursuant to an agreement between the Company
and Capital Growth, in connection with Capital Growth's role as placement agent
for certain securities of the Company. That agreement, which expired in March
1998, required Mr.Matulich be nominated for election to at least three one-year
terms. Mr.Matulich served as interim Chairman of the Board from March 29, 1996
through June 24, 1996.
Philip W.Strauss. Mr.Strauss has been the Chief Executive Officer and
President since March 27, 1996 and Chairman of the Board since June 24, 1996.
Previously Mr.Strauss had been Executive Vice President and Chief Operating
Officer of the Company since September 19, 1995. He has 24 years of experience
in project, business and corporate development. Mr.Strauss was co-founder of
BioMedical Waste Systems, Inc., a publicly-held waste management firm, where he
served as Executive Vice President from its inception in 1987 until May 1992 and
as a Director from inception until May 1993.
<PAGE>
Robert Rivkin. Mr. Rivkin, a Certified Public Accountant, has been
Executive Vice President Acquisitions of the Company since April 1998, Vice
President and Chief Financial Officer since March 1995, Secretary since May 1995
and Treasurer since June 1996. Mr. Rivkin was first elected to the Board of
Directors in June 1997. For the previous five years prior to joining the
Company, Mr. Rivkin was a principal at The Envirovision Group Inc., a full
service environmental engineering, consulting and contracting company, where he
was responsible for finance, marketing and strategic planning. Previously, Mr.
Rivkin practiced public accounting in New York, where he specialized in mergers
and acquisitions, initial public offerings and SEC reporting.
David J. Breazzano. Mr.Breazzano was first elected to the Board of
Directors in June 1997. Mr.Breazzano is one of the three principals at DDJ
Capital Management, LLC, which was established in 1996. He has over 17 years of
investment experience and served as a Vice President and Portfolio Manager at
Fidelity Investments ("Fidelity") from 1990 to 1996. Prior to joining Fidelity,
Mr.Breazzano was President and Chief Investment Officer of the T. Rowe Price
Recovery Fund. Mr.Breazzano also serves as a Director of Key Energy Group, Inc.
Charles Johnston. Mr. Johnston was first elected to the Board of
Directors in June 1997. During the past 10 years he has served on various
boards. Mr. Johnston is currently Chairman of Ventex Technology in Riviera
Beach, Florida and has held that position since 1993. He is also currently
Chairman of AFD Technologies in Jupiter, Florida. He was previously founder,
Chairman, and CEO of ISI Systems, a public company on the American Stock
Exchange prior to being sold to Teleglobe Corporation of Montreal, Canada. Mr.
Johnston also serves as Trustee of Worcester Polytechnic Institute in Worcester,
Massachusetts as well as Trustee for the Institute of Psychiatric Research,
University of Pennsylvania in Philadelphia, Pennsylvania. In addition, he serves
as director of the following companies - Kideo Productions and Infosafe Systems
both of New York City, Hydron Technologies Inc. of Boca Raton, Florida and
Spectrum Signal Processing of Vancouver, British Columbia.
Judy K. Mencher. Ms.Mencher was first elected to the Board of Directors
in August 1997. Ms.Mencher is one of the three principals at DDJ Capital
Management, LLC, which was established in 1996. From 1990 to 1996, Ms.Mencher
was at Fidelity working in the Distressed Investing Group. Prior to joining
Fidelity in 1990, Ms. Mencher was a Partner at the law firm of Goodwin, Procter
& Hoar LLP specializing in bankruptcy and creditors' rights.
William B.Philipbar. Mr. Philipbar was first elected a Director of the
Company on May 8, 1996. He resigned as a Director of the Company on June 24,
1997 and was reelected to the Board on August 20, 1997. Since December 1997,
Mr. Philipbar has been a part-time consultant for the Company in connection
with the Company's consideration of proposed acquisitions and other strategic
matters. He has been a Director of Matlack Systems, Inc. and Rollins Truck
Leasing Corp. since 1993. Until 1995 he was also an advisor to Charles River
Ventures.
The Board of Directors and Its Committees
Board of Directors
The Company's Board of Directors consists of seven members, a majority of
whom are independent of the Company's management. Each director holds office
for a term from election until the next Annual Meeting of the Company's
stockholders and until his or her successor is duly elected and qualified.
Pursuant to the Certificate of Designations, Preferences and Rights
adopted June 25, 1997 with respect to the Company's Series A Preferred Stock,
the holders of the Series A Preferred Stock are entitled to elect four members
of the Board, two of whom shall be elected by B-III Capital Partners, L.P. ("B
III"), subject to certain maintenance of ownership requirements.
<PAGE>
Prior to June 24, 1997, the Board was comprised of six members, four of
whom resigned on that date. On June 30, 1997, the Board elected Robert Rivkin,
Vice President and Chief Financial Officer of the Company, to one of the
vacancies on the Board. At the same meeting, pursuant to an agreement with
certain purchasers of the Company's Series A Preferred Stock, the Board elected
Bart Grenier, David J. Breazzano and Charles Johnston to serve as directors. In
August 1997, William B. Philipbar was reelected to the Board of Directors, Mr.
Grenier resigned as a director and Judy K. Mencher was elected to serve as
director to fill such vacancy.
The Board of Directors held ten meetings during fiscal year 1997. Each
of the Company's directors attended at least 75% of the total number of meetings
of the Board of Directors and of the committees of the Company of which he was a
member.
The Board of Directors has appointed an Audit Committee and a Compensation
Committee.
Compensation Committee. The Compensation Committee currently consists of
Messrs. Johnston and Strauss and Ms. Mencher. Prior to June 24, 1997, the
Compensation Committee consisted of Messrs. Matulich and Simmons. The
Compensation Committee makes recommendations and exercises all powers of the
Board of Directors in connection with certain compensation matters, including
incentive compensation and benefit plans. The Compensation Committee (excluding
Mr. Strauss) administers, and has authority to grant awards under, the Plan to
the employee directors and management of the Company and its subsidiaries and
other key employees. The Compensation Committee held two meetings during fiscal
year 1997.
Audit Committee. The Audit Committee currently consists of Messrs.
Breazzano, Matulich and Philipbar. Prior to June 24, 1997, the Audit Committee
consisted of Messrs. Matulich, Philipbar and Daniel Shannon. The Audit Committee
is empowered to recommend to the Board the appointment of the Company's
independent public accountants and to periodically meet with such accountants to
discuss their fees, audit and non-audit services, and the internal controls and
audit results for the Company. The Audit Committee also is empowered to meet
with the Company's accounting personnel to review accounting policies and
reports. The Audit Committee held two meetings during fiscal year 1997.
Information Regarding Executive Officers
Set forth below is certain information regarding each of the executive
officers of the Company, including their principal occupation and business
experience for at least the last five years.
Name Age Position
Philip W. Strauss............ 49 Chief Executive Officer and President
Robert Rivkin................ 39 Executive Vice President - Acquisitions,
Chief Financial Officer, Secretary and
Treasurer
Joseph E. Motzkin............ 55 Vice President - Corporate Development
Arthur Streeter.............. 38 Vice President and General Counsel
The principal occupation and business experience for at least the last
five years of each executive officer of the Company, other than executive
officers also serving as Directors, is set forth below.
Joseph E. Motzkin. Mr. Motzkin has been a Vice President of the Company
since August 1996. From 1994 to 1996, Mr. Motzkin was a General Manager at Prins
Recycling Corporation where he established recycling programs, and directed
sales programs and customer service activities. From 1989 to 1994, he was a
General Manager at Laidlaw Waste Systems where he was responsible for their
New England operations. Mr. Motzkin has 26 years in the solid waste management
business.
<PAGE>
Arthur Streeter. Mr. Streeter has been Vice President and General Counsel
since February 1988. Prior to joining the Company he was a Partner at Goldstein
Manello, a 60 lawyer firm based in Boston, Massachusetts where he gained 12
years of experience representing both private and public companies.
Each of the executive officers holds his or her respective office until
the regular annual meeting of the Board of Directors following the annual
meeting of stockholders and until his or her successor is elected and qualified
or until his or her earlier resignation or removal.
Compliance with Section 16(a) of the Exchange Act
Section 16(a) of the Exchange Act requires the Company's executive
officers and directors, and persons who own more than 10% of a registered class
of the Company's equity securities, to file reports of ownership and changes in
ownership with the SEC and the Nasdaq Small-Cap Market. Officers, directors and
greater than 10% stockholders are required by SEC regulation to furnish the
Company with copies of all Section 16(a) forms they file. To the Company's
knowledge, based solely on review of the copies of such reports furnished to the
Company and written representations that no other reports were required during
the fiscal year ended December 31, 1997, all Section 16(a) filing requirements
applicable to its executive officers, directors and greater than 10% beneficial
owners were satisfied.
Item 11. Executive Compensation
Director Compensation
The Company does not currently pay cash compensation to its directors.
Non-employee directors are entitled to stock option grants under the Amended and
Restated Waste Systems International, Inc. 1995 Stock Option Plan for
Non-Employee Directors (the "Director Plan"). The Director Plan provides for the
automatic granting to Independent Directors (as defined in the Director Plan) of
options that do not qualify as incentive stock options (referred to as "Stock
Options") under Section 422 of the Code. Under the terms of the Director Plan,
each Independent Director who first becomes a Director of the Company on or
after June 30, 1997 shall automatically be granted on the date he or she becomes
a Director of the Company a Stock Option to purchase 4,000 shares of Common
Stock. In addition, the Director Plan provides that each Independent Director
shall automatically be granted, at the beginning of each calendar year in which
he or she is serving as an Independent Director, a Stock Option to acquire 2,000
shares of Stock. Each Independent Director entering service after the start of
any calendar year will automatically be granted on the effective date of his or
her Board membership a Stock Option to acquire a portion of 2,000 shares of
Stock prorated to reflect the remaining portion of such calendar year. The
exercise price per share for the Common Stock covered by any Stock Option
granted under the Director Plan shall be equal to the fair market value of the
Common Stock on the date such option is granted.
Other than Stock Options to acquire 4,000 shares of Stock granted
automatically to each new director joining the Board on or after June 30, 1997,
which Stock Options vest immediately upon grant, options granted under the
Director Plan shall vest at a rate of 25% of the total number of shares of
Common Stock purchasable under such option for each year that the holder remains
a Director of the Company, such vesting to take place at the end of each of the
first four calendar years following issuance of such options. An option issued
under the Director Plan shall not be exercisable after the expiration of ten
years from the date of grant.
Executive Compensation
Summary Compensation Table. The following table sets forth the aggregate
cash compensation paid by the Company with respect to the fiscal years ended
December 31, 1997, 1996 and 1995 to the Company's Chief Executive Officer and
the two other senior executive officers in office on December 31, 1997 who
earned at least $100,000 in cash compensation during 1997 (the "Named Executive
Officers").
<PAGE>
SUMMARY COMPENSATION TABLE
Long-Term
Compensation
Awards
Annual Shares
Compensation Underlying
Salary Options (1)
Name and Principal Position Year ($) (#)
- --------------------------- ---- --------------------------
Philip Strauss(2) 1997 162,504 522,859
Chairman of the Board, 1996 150,000 50,000(3)
President and Chief 1995 43,750 40,000
Executive Officer
Robert Rivkin 1997 162,504 522,859
Executive Vice President - 1996 150,000 41,250
Acquisitions, Chief Financial Officer,
Secretary and Treasurer 1995 150,000 8,750
Joseph Motzkin(4) 1997 110,000 19,300
Vice President -
Corporate Development
(1) All information with respect to outstanding options, including shares
issuable or issued and exercise prices payable or paid per share, has
been adjusted to reflect the 1-for-5 reverse stock split effected
February 13, 1998.
(2) Mr. Strauss has been the Chief Executive Officer and President since
March 27, 1996 and Chairman of the Board since June 24, 1996. Previously
Mr.Strauss had been Executive Vice President and Chief Operating Officer
since September 19, 1995.
(3) Includes the options to acquire 40,000 shares of Common Stock granted in
1995 and repriced in 1996.
(4) Includes Mr. Motzkin's salary for 1997 only as Mr. Motzkin did not join
the Company until the third quarter of 1996.
<PAGE>
Option Grants in Fiscal Year 1997. The following table sets forth the
options granted during fiscal year 1997 and the value of the options held on
December 31, 1997 by the Company's Named Executive Officers.
<TABLE>
OPTION GRANTS IN FISCAL YEAR 1997 (1)
<CAPTION>
Percent of Total
Number of Options Granted Exercise or
Shares Underlying to Employees in Base Price Expiration Grant Date
Name Options Granted(#) Fiscal Year ($ /share) Date Present Value$(2)
- ---- ------------------ ------------------- ---------- ------------- --------------
<S> <C> <C> <C> <C> <C>
Philip Strauss 522,859 44% $1.406 6/30/07 $280,096
Robert Rivkin 522,859 44% $1.406 6/30/07 $280,096
Joseph Motzkin 19,300 2% $1.406 6/30/07 $10,339
- ------------------
</TABLE>
(1) All information with respect to outstanding options, including shares
issuable or issued and exercise prices payable or paid per share, has
been adjusted to reflect the 1-for-5 reverse stock split effected
February 13, 1998.
(2) The grant date present value was determined using the Black Scholes
option pricing model with the following weighted average assumptions;
volatility, 30%; expected dividend yield, 0%; risk free interest rate,
5.499% and expected life, 5 years.
Option Exercises and Year-End Holdings. The following table sets forth
the options exercised during fiscal year 1997 and the value of the options held
on December 31, 1997 by the Company's Named Executive Officers.
<TABLE>
AGGREGATED OPTION EXERCISES IN FISCAL YEAR 1997
AND FISCAL YEAR-END 1997 OPTION VALUES
<CAPTION>
Number of Securities Underlying Value of Unexercised
Shares Unexercised Options in-the-Money Options
Acquired On Value at Fiscal Year-End (#) at Fiscal Year-End ($)
---------------------- ----------------------
Name Exercise (#) Realized ($) Exercisable Unexercisable Exercisable Unexercisable
--------------- -------------- -------------- ------------- ------------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C>
Philip Strauss 0 0 50,000 522,859 $117,200 $1,225,581
Robert Rivkin 0 0 50,000 522,859 117,200 1,225,581
Joseph Motzkin 0 0 2,500 26,800 5,860 62,819
</TABLE>
Employment Agreements. On June 30, 1997, the Company and Mr. Strauss
entered into an employment agreement. The terms of the agreement provide (i)
that Mr. Strauss shall serve as the Company's President and Chief Executive
Officer, (ii) that he receive a salary of $175,000 per year and (iii) that he
agree not to compete with the Company following termination of his employment
for a period of one year following the termination. In the event that Mr.
Strauss is terminated for cause, he shall not be bound to the non-competition
provisions. The Company's agreement with Mr. Strauss is effective until June 30,
1999 and, absent ninety-day notice from either party to the contrary, shall be
extended automatically for subsequent one-year terms upon the expiration of the
agreement. The Company's agreement with Mr. Strauss may be terminated at any
time by the mutual consent of the parties.
<PAGE>
On June 30, 1997, the Company and Mr. Rivkin entered into an employment
agreement. The terms of the agreement provide (i) that Mr. Rivkin shall serve as
the Company's Vice President, Chief Financial Officer, Secretary and Treasurer,
(ii) that he receive a salary of $175,000 per year and (iii) that he agree not
to compete with the Company following termination of his employment for a period
of one year following the termination. In the event that Mr. Rivkin is
terminated for cause, he shall not be bound to the non-competition provisions.
The Company's agreement with Mr. Rivkin is effective until June 30, 1999 and,
absent ninety-day notice from either party to the contrary, shall be extended
automatically for subsequent one-year terms upon the expiration of the
agreement. The Company's agreement with Mr. Rivkin may be terminated at any time
by the mutual consent of the parties.
Compensation Committee Interlocks and Insider Participation
Jay Matulich and Dr. Simmons served on the Compensation Committee until
June 24, 1997. Currently, Philip W.Strauss, Charles Johnston and Judy K.
Mencher serve on the Compensation Committee. Philip W. Strauss, in addition to
serving as a member of the Compensation Committee is the Chief Executive Officer
and President. No other members of the Compensation Committee in 1997 ever
served as an officer of the Company.
<PAGE>
Item 12. Security Ownership of Certain Beneficial Owners and Management
The following table presents information as to all directors and senior
executive officers of the Company as of April 15, 1998 and persons or entities
known to the Company to be beneficial owners of more than 5% of the Company's
Common Stock as of April 15, 1998, unless otherwise indicated, based on
representations of officers and directors of the Company and filings received by
the Company on Schedules 13D and 13G or Form 13F under the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
<TABLE>
Beneficial Ownership
<CAPTION>
Series A
Common Stock Preferred Stock(1)
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# of Shares % of Class # of Shares % of Class
Directors, Executive Officers and Beneficially Beneficially Beneficially Beneficially
5% Stockholders(3) Owned Owned(3) owned Owned
- ------------------------------------- ---------------- ------------------------ ----------------- -------------------
---------------- ------------------------ ----------------- -------------------
<S> <C> <C> <C> <C>
B-III Capital Partners, L.P.(5) 11,851 * 50,000 54.00%
c/o DDJ Capital Management, LLC
141 Linden Street
Wellesley, MA 02181
The Prudential Insurance Company of 78,260 2.00% 7,219 7.80%
America (6)
100 Mulberry Street
Newark, NJ 07102
PaineWebber High Income Fund (7)
374,963 9.58% 2,383 2.57%
1285 Avenue of the Americas
New York, NY 10019
David J. Breazzano(8) 4,000 * -- --
Charles Johnston(9) 4,000 * -- --
Jay Matulich(10) 10,800 * -- --
Judy K. Mencher(8) 4,000 * -- --
Joseph Motzkin(11) 3,125 * 250 *
William B. Philipbar(12) 4,000 * -- --
Robert Rivkin(13) 50,175 1.28% 250 *
Philip W. Strauss(14) 50,000 1.28% 250 *
All directors and officers as a 130,100 3.33% 750 *
Group (8 persons)
* less than 1%
</TABLE>
<PAGE>
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(1) Does not include shares issuable upon conversion of the Series A
Preferred Stock.
(2) As of April 15, 1998 there were 92,580 shares of Series A Preferred
Stock issued and outstanding. The Series A Preferred Stock has
a liquidation value of $100.00 per share and is convertible into Common
Stock at a conversion price of $1.40625 per share of Common Stock (which
conversion price may be adjusted under certain circumstances), upon the
occurrence of certain events not within the control of the holders of
the Series A Preferred Stock. This corresponds to a current conversion
ratio of approximately 71.11 shares of Common Stock per share of Series
A Preferred Stock. The Series A Preferred Stock is also redeemable (a)
at the Company's option for Common Stock, if the Company's closing
Common Stock price for any 20 consecutive trading days
occurring after June 26, 1998 equals or exceeds $2.8125 and (b) at the
Company's option for cash equal to the redemption price as set forth in
the Certificate of Designation of the Series A Preferred Stock, if any
Series A Preferred Stock is outstanding on June 26, 2002, in each case
subject to certain trading requirements. If all Series A Preferred Stock
were converted at the current conversion price they would be converted
into 6,583,549 shares of Common Stock representing 62.72 % of the Common
Stock on a fully diluted basis.
(3) The persons named in the table have sole voting and investing power with
respect to all shares shown as beneficially owned by them subject to
community property laws where applicable and the information contained
in footnotes to this table.
(4) Based on 3,912,431 shares of Common Stock issued and outstanding as of
April 15, 1998.
(5) Includes 11,851 shares of Common Stock currently owned and 50,000 shares
of Preferred Stock currently owned that are convertible into 3,555,550
shares of Common Stock. DDJ Capital Management, LLC ("DDJ") serves as the
investment manager to B-III Capital Partners, L.P. ("B III"); an
affiliate of DDJ acts as the general partner of B III. Assuming
conversion of all outstanding Preferred Stock into Common Stock B III
would own approximately 32.06% of the Common Stock.
(6) Based on information supplied by The Prudential Insurance Company of
America ("Prudential"), as of March 14, 1998. Includes 78,260 shares of
Common Stock currently owned and 7,219 shares of Convertible Preferred
Stock currently owned that are convertible into 513,351 shares of Common
Stock. Assuming conversion of all outstanding Preferred Stock into Common
Stock, Prudential would hold approximately 5.31% of the Common Stock.
The Common Stock and Convertible Preferred Stock are held for the
benefit of certain registered investment companies over which Prudential
or The Prudential Investment Corporation ("PIC") may have direct or
indirect voting and/or investment discretion, with respect to which
Prudential has advised the Company that Prudential and PIC disclaim
beneficial ownership.
(7) Includes 374,963 shares of Common Stock currently owned and 2,383 shares
of Preferred Stock currently owned that are convertible into 169,458
shares of Common Stock. Assuming conversion of all outstanding Preferred
Stock into Common Stock, the PaineWebber High Income Fund would own
approximately 4.89% of the Common Stock.
(8) Includes 4,000 shares subject to stock options which are fully vested
and currently exercisable and excludes those shares owned by B III,
which Mr. Breazzano and Ms. Mencher may be deemed to beneficially own
as a result of Mr.Breazzano's and Ms.Mencher's interest in DDJ, however,
such beneficial ownership is disclaimed. Both Mr. Breazzano and
Ms. Mencher are managing members of DDJ.
(9) Includes 4,000 shares subject to stock options which are fully vested
and currently exercisable.
(10) Includes 9,300 shares of Common Stock currently owned and 1,500 shares
subject to stock options which are fully vested and currently
exercisable.
(11) Includes 625 shares of Common Stock currently owned and 2,500 shares
subject to stock options which are fully vested and currently
exercisable. Also includes 250 shares of Preferred Stock currently owned
that are convertible into 17,780 shares of Common Stock.
(12) Includes 4,000 shares subject to stock options which are fully vested
and currently exercisable.
(13) Includes 175 shares of Common Stock currently owned and 50,000 shares
subject to stock options which are fully vested and currently
exercisable. Also includes 250 shares of Preferred Stock currently owned
that are convertible into 17,780 shares of Common Stock.
(14) Includes 50,000 shares subject to stock options which are fully vested
and currently exercisable. Also includes 250 shares of Preferred Stock
that are convertible into 17,780 shares of Common Stock.
<PAGE>
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Item 13. Certain Relationships and Related Transactions
- --------------------------------------------------------------------------------
Jay Matulich, a Director of the Company, is a Managing Director of ICG,
which holds 11,549 Placement Agent Warrants at an exercise price of $11.50 per
share. ICG received these securities as part of a total compensation package
including 40,000 shares of Common Stock and 144,000 Placement Agent Warrants,
together with a gross fee of $808,000, as consideration for placement agent
services rendered on behalf of the Company during March and April 1995. ICG was
also the placement agent for the private placement of Units in October and
November 1995 consisting of convertible debentures and Series F Warrants to
overseas investors. In connection with this overseas offering, ICG received a
fee calculated as 8% of gross proceeds, resulting in approximately $896,000, and
140,313 warrants to purchase shares of the Company's Common Stock at an exercise
price of $50.00 per share. In June 1996, ICG was also the placement agent for an
overseas' offering of the Company's Common Stock. In connection with this
offering, ICG received a fee calculated at 8% of gross proceeds, resulting in
approximately $513,000. In addition, the Company exchanged 140,313 Warrants
exercisable at a price of $50.00 into 70,000 Warrants exercisable at a price of
$17.50. Through March 29, 1996, ICG also had a continuing relationship with the
Company pursuant to which ICG provided advisory and investment banking services
to the Company, principally in connection with financing matters. The Company
paid ICG $4,500 per month for such services, beginning on March 29, 1995. The
terms of this relationship were comparable to terms that would have been
obtainable from unaffiliated sources.
B-III Capital Partners, L.P. holds 50,000 shares of the Company's Series
A Preferred Stock. B III purchased these securities in June 1997 from the
Company during the Company's private placement. Holders of the Series A
Preferred Stock are entitled to receive, when, as and if declared by the Board
of Directors, cumulative dividends at the annual rate of $8.00 per share for
each of the three years following June 26, 1997, and at the annual rate of
$14.00 per share thereafter. Dividends are payable annually in arrears on June
26 of each year, commencing on June 26, 1998, in preference to and with priority
over dividends on the Common Stock. The Series A Preferred Stock is convertible
into Common Stock at a conversion price of $1.40625 per share of Common Stock,
which conversion price may be reset to a lower conversion price upon the
occurrence of certain events. The Series A Preferred Stock is also redeemable at
the Company's option after one year, subject to certain trading requirements.
Each share of Series A Preferred Stock entitles the holder thereof to such
number of votes per share as shall equal the number of shares of Common Stock
into which each share of Preferred Stock is then convertible. The holders of the
Series A Preferred Stock have the right to vote together as a single class to
elect four (4) directors to the Board of Directors of the Corporation, two of
whom shall be designated by B III. B III has nominated Mr. Breazzano and Ms.
Mencher to serve on the Company's Board of Directors.
Pursuant to a bridge loan transaction in February, 1998, B III was issued
11,851 shares of the Company's Common Stock and a Subordinated Promissory Note
in the amount of $4,000,000 which will mature on May 13, 1998.
<PAGE>
On December 15, 1997, the Board of Directors voted to retain Mr. William
Philipbar, a Non-Employee Director of the Company, as a part-time consultant in
connection with the Company's consideration of proposed acquisitions and other
strategic matters. Mr. Philipbar's compensation for providing such consulting
services for up to four days per month, as requested by the Company, will
consist of grants of options to acquire 25,000 shares of Common Stock to be
granted on January 1 of 1998 and each succeeding year so long as Mr. Philipbar
continues to be so retained by the Company. Such grants will be made under an
amendment, subject to stockholder approval, of the Company's Amended and
Restated 1995 Stock Option and Incentive Plan (the "Plan") permitting the grant
of options and other benefits under the Plan to Non-Employee Directors,
consultants and other key persons. Each such option granted to Mr. Philipbar
under such consulting arrangement (a) shall remain outstanding for a term of ten
years, subject to termination 90 days following the date of termination of
Mr.Philipbar's consulting arrangement with the Company; (b) shall be exercisable
at an exercise price per share equal to the closing price of the Common Stock
on its principal trading market on the first trading day on or after the date of
issuance; (c) shall initially be unvested, and shall vest in full on the date
one year after the date of issuance, provided that Mr. Philipbar has been
retained as a consultant by the Company and has been ready, willing and able to
perform services as such consultant during such one year period; and (d) shall
be a non-qualified stock option for income tax purposes. Under such consulting
arrangement, Mr. Philipbar received options on January 1, 1998 to acquire
25,000 shares of Common Stock at an exercise price per share of $3.75, vesting
according to the terms described above and subject to Stockholder approval.
- --------------------------------------------------------------------------------
<PAGE>
Part IV, Item 14, sub-section entitled "Exhibits" of the Form 10-K filed
with the Securities and Exchange Commission on March 27, 1997 is hereby amended
and restated as follows:
- --------------------------------------------------------------------------------
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
Exhibits
Exhibit No. Description
2.1 Articles of Merger of BioSafe International, Inc., a
Nevada Corporation, with and into Waste Systems
International, Inc., a Delaware Corporation, filed
October 24, 1997 (Incorporated by reference to Exhibit
2.1 to Form 10-Q For the Quarterly Period Ended
September 30, 1997 of Waste Systems International, Inc.)
2.2 Certificate of Merger of BioSafe International, Inc.,
a Nevada Corporation, with and into Waste Systems
International, Inc., a Delaware Corporation, filed
October 24, 1997 and effective October 27, 1997.
(Incorporated by reference to Exhibit 2.2 to Form
10-Q For the Quarterly Period Ended September 30,
1997 of Waste Systems International, Inc.)
2.3 Agreement and Plan of Merger dated October 17, 1997 by
and between BioSafe International, Inc. a Nevada
Corporation and Waste Systems International, Inc. a
Delaware Corporation. (Incorporated by reference to
Exhibit 2.3 to Form 10-Q For the Quarterly Period Ended
September 30, 1997 of Waste Systems International, Inc.)
3(i).1 Second Amended and Restated Certificate of Incorporation
of Waste Systems International, Inc. filed February 13,
1998.**
3(i).2 Certificate of Designations of Series B Convertible
Preferred Stock of Waste Systems International, Inc
filed March 5, 1998.**
3(i).3 Certificate of Corrections to the Second Amended and
Restated Certificate of Incorporation of Waste Systems
International, Inc. (as filed February 13, 1998), filed
March 17, 1998.**
3(ii).1 Bylaws of the Company, adopted and effective as of
October 27, 1997.*
4.1 Form of Placement Agent Warrant. (Incorporated by
reference to Exhibit No. 4.9 to the Registration
Statement on Form S-1 of BioSafe International, Inc.,
No. 33-93966. As filed on June 26, 1995)
4.2 Form of Series F Warrant Certificate. (Incorporated by
reference to Exhibit No. 4.10 to Form 10-K For the
Fiscal Year Ended December 31, 1995 of BioSafe
International, Inc.)
4.3 Series F Warrant Agreement. (Incorporated by reference
to Exhibit No. 4.10 to Form 10-K For the Fiscal Year
Ended December 31, 1995 of BioSafe International, Inc.)
<PAGE>
4.4 Certificate of Designation of Series A Convertible
Preferred Stock of Waste Systems International, Inc.
filed October 20, 1997 (Refer to Exhibit 3(i).3 above).
4.5 Certificate of Designation of Series B Convertible
Preferred Stock of Waste Systems International, Inc.
filed October 20, 1997 (Refer to Exhibit 3(i).2 above).
4.6 Amended and Restated Subscription Agreement dated as of
June 30, 1997 (Incorporated by reference to Exhibit 4.2
to Form 10-Q for the Quarterly Period Ended September
30, 1997 of Waste Systems International, Inc.)
10.1 Amended and Restated Joint Venture Agreement between
BioSafe, Inc. and BioMed Environmental Systems, Inc.,
dated December 24, 1992. (Incorporated by reference to
Exhibit No. 10.1 to the Registration Statement on Form
S-1 of BioSafe International, Inc., No. 33-93966 as
filed on June 26, 1995.)
10.2 Agreement between BioSafe, Inc. and the Town of
Fairhaven, Massachusetts, dated July 24, 1995.
(Incorporated by reference to Exhibit No. 10.2 to the
Registration Statement on Form S-1 of BioSafe
International, Inc., No. 33-93966 as filed on June 26,
1995.)
10.3 Letter Agreement from the Town of Fairhaven to the
Company, dated June 20, 1995. (Incorporated by reference
to Exhibit No. 10.3 to the Registration Statement on
Form S-1 of BioSafe International, Inc., No. 33-93966 as
filed on June 26, 1995.)
10.4 Agreement and Plan of Merger dated as of March 17, 1995,
among the Company, Zoe Resources, Inc., certain
stockholders of the Company and BioSafe, Inc.
(Incorporated by Reference to Exhibit 2.1 of the
Company's Current Report on Form 8-K, dated March 29,
1995.)
10.5 1995 Stock Option Plan. (Incorporated by Reference to
Exhibit 10.1 of the Company's Current Report on Form
8-K, dated March 29, 1995.)
10.6 Agreement between BioSafe, Inc. and the Town of South
Hadley, Massachusetts, dated August 22, 1995.
(Incorporated by reference to Exhibit No. 10.12 to the
Registration Statement on Form S-1 of BioSafe
International, Inc., No. 33-93966 as filed on June 26,
1995.)
10.7 Form of 10% Convertible, Redeemable, Subordinated Note
Due 2000. (Incorporated by reference to Exhibit No.
10.15 to the Registration Statement on Form S-1 of
BioSafe International, Inc., No. 33-93966 as filed on
June 26, 1995.)
21.1 Schedule of Subsidiaries.**
* Filed herewith.
** Filed previously with the Form 10-K on March 27, 1997.
<PAGE>
- -------------------------------------------------------------------------------
SIGNATURES
- --------------------------------------------------------------------------------
Pursuant to the requirements of Section 13 or 15(d) 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.
WASTE SYSTEMS INTERNATIONAL, INC.
Date: April 30, 1998 By: /s/Robert Rivkin
-----------------
Robert Rivkin
executive Vice President, Chief
Financial Officer, Treasurer and
Secretary (Principal Financial and
Accounting Officer)
EXHIBIT 3(ii).1
BYLAWS
OF
WASTE SYSTEMS INTERNATIONAL, INC.
ARTICLE I
Stockholders
SECTION 1. Annual Meeting. The annual meeting of stockholders shall be
held at the hour, date and place within or without the United States which is
fixed by the majority of the Board of Directors, the Chairman of the Board, if
one is elected, or the President, which time, date and place may subsequently be
changed at any time by vote of the Board of Directors. If no annual meeting has
been held for a period of thirteen months after the Corporation's last annual
meeting of stockholders, a special meeting in lieu thereof may be held, and such
special meeting shall have, for the purposes of these Bylaws or otherwise, all
the force and effect of an annual meeting. Any and all references hereafter in
these Bylaws to an annual meeting or annual meetings also shall be deemed to
refer to any special meeting(s) in lieu thereof.
SECTION 2. Matters to be Considered at Annual Meetings. At any annual
meeting of stockholders or any special meeting in lieu of annual meeting of
stockholders (the "Annual Meeting"), only such business shall be conducted, and
only such proposals shall be acted upon, as shall have been properly brought
before such Annual Meeting. To be considered as properly brought before an
Annual Meeting, business must be: (a) specified in the notice of meeting, (b)
otherwise properly brought before the meeting by, or at the direction of, the
Board of Directors, or (c) otherwise properly brought before the meeting by any
holder of record (both as of the time notice of such proposal is given by the
stockholder as set forth below and as of the record date for the Annual Meeting
in question) of any shares of capital stock of the Corporation entitled to vote
at such Annual Meeting who complies with the requirements set forth in this
Section 2.
<PAGE>
In addition to any other applicable requirements, for business to be
properly brought before an Annual Meeting by a stockholder of record of any
shares of capital stock entitled to vote at such Annual Meeting, such
stockholder shall: (i) give timely notice as required by this Section 2 to the
Secretary of the Corporation and (ii) be present at such meeting, either in
person or by a representative. For all Annual Meetings, a stockholder's notice
shall be timely if delivered to, or mailed to and received by, the Corporation
at its principal executive office not less than 75 days nor more than 120 days
prior to the anniversary date of the immediately preceding Annual Meeting (the
"Anniversary Date"); provided, however, that in the event the Annual Meeting is
scheduled to be held on a date more than 30 days before the Anniversary Date or
more than 60 days after the Anniversary Date, a stockholder's notice shall be
timely if delivered to, or mailed to and received by, the Corporation at its
principal executive office not later than the close of business on the later of
(A) the 75th day prior to the scheduled date of such Annual Meeting or (B) the
15th day following the day on which public announcement of the date of such
Annual Meeting is first made by the Corporation.
For purposes of these Bylaws, "public announcement" shall mean: (i)
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service, (ii) a report or other document filed
publicly with the Securities and Exchange Commission (including, without
limitation, a Form 8-K), or (iii) a letter or report sent to stockholders of
record of the Corporation at the time of the mailing of such letter or report.
A stockholder's notice to the Secretary shall set forth as to each
matter proposed to be brought before an Annual Meeting: (i) a brief description
of the business the stockholder desires to bring before such Annual Meeting and
the reasons for conducting such business at such Annual Meeting, (ii) the name
and address, as they appear on the Corporation's stock transfer books, of the
stockholder proposing such business, (iii) the class and number of shares of the
Corporation's capital stock beneficially owned by the stockholder proposing such
business, (iv) the names and addresses of the beneficial owners, if any, of any
capital stock of the Corporation registered in such stockholder's name on such
books, and the class and number of shares of the Corporation's capital stock
beneficially owned by such beneficial owners, (v) the names and addresses of
other stockholders known by the stockholder proposing such business to support
such proposal, and the class and number of shares of the Corporation's capital
stock beneficially owned by such other stockholders, and (vi) any material
interest of the stockholder proposing to bring such business before such meeting
(or any other stockholders known to be supporting such proposal) in such
proposal.
<PAGE>
If the Board of Directors or a designated committee thereof determines
that any stockholder proposal was not made in a timely fashion in accordance
with the provisions of this Section 2 or that the information provided in a
stockholder's notice does not satisfy the information requirements of this
Section 2 in any material respect, such proposal shall not be presented for
action at the Annual Meeting in question. If neither the Board of Directors nor
such committee makes a determination as to the validity of any stockholder
proposal in the manner set forth above, the presiding officer of the Annual
Meeting shall determine whether the stockholder proposal was made in accordance
with the terms of this Section 2. If the presiding officer determines that any
stockholder proposal was not made in a timely fashion in accordance with the
provisions of this Section 2 or that the information provided in a stockholder's
notice does not satisfy the information requirements of this Section 2 in any
material respect, such proposal shall not be presented for action at the Annual
Meeting in question. If the Board of Directors, a designated committee thereof
or the presiding officer determines that a stockholder proposal was made in
accordance with the requirements of this Section 2, the presiding officer shall
so declare at the Annual Meeting and ballots shall be provided for use at the
meeting with respect to such proposal.
Notwithstanding the foregoing provisions of this Bylaw, a stockholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder with respect to the matters set forth in this By-Law, and nothing in
this By-Law shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act.
SECTION 3. Special Meetings. Except as otherwise required by law and
subject to the rights, if any, of the holders of any series of Preferred Stock
of the Corporation, special meetings of the stockholders of the Corporation may
be called only by the Board of Directors pursuant to a resolution approved by
the affirmative vote of a majority of the Directors then in office.
SECTION 4. Matters to be Considered at Special Meetings. Only those
matters set forth in the notice of the special meeting may be considered or
acted upon at a special meeting of stockholders of the Corporation, unless
otherwise provided by law.
SECTION 5. Notice of Meetings; Adjournments. A written notice of all
Annual Meetings stating the hour, date and place of such Annual Meetings shall
be given by the Secretary or an Assistant Secretary (or other person authorized
by these Bylaws or by law) not less than 10 days nor more than 60 days before
the Annual Meeting, to each stockholder entitled to vote thereat and to each
stockholder who, by law or under the Amended and Restated Certificate of
Incorporation of the Corporation (as the same may hereafter be amended and/or
restated, the "Certificate") or under these Bylaws, is entitled to such notice,
by delivering such notice to him or by mailing it, postage prepaid, addressed to
such stockholder at the address of such stockholder as it appears on the
Corporation's stock transfer books. Such notice shall be deemed to be delivered
when hand delivered to such address or deposited in the mail so addressed, with
postage prepaid.
Notice of all special meetings of stockholders shall be given in the
same manner as provided for Annual Meetings, except that the written notice of
all special meetings shall state the purpose or purposes for which the meeting
has been called.
Notice of an Annual Meeting or special meeting of stockholders need not
be given to a stockholder if a written waiver of notice is signed before or
after such meeting by such stockholder or if such stockholder attends such
meeting, unless such attendance was for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting
was not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any Annual Meeting or special meeting of stockholders need
be specified in any written waiver of notice.
<PAGE>
The Board of Directors may postpone and reschedule any previously
scheduled Annual Meeting or special meeting of stockholders and any record date
with respect thereto, regardless of whether any notice or public disclosure with
respect to any such meeting has been sent or made pursuant to Section 2 of this
Article I or Section 3 of Article II hereof or otherwise. In no event shall the
public announcement of an adjournment, postponement or rescheduling of any
previously scheduled meeting of stockholders commence a new time period for the
giving of a stockholder's notice under Section 2 of Article I and Section 3 of
Article II of these Bylaws.
When any meeting is convened, the presiding officer may adjourn the
meeting if (a) no quorum is present for the transaction of business, (b) the
Board of Directors determines that adjournment is necessary or appropriate to
enable the stockholders to consider fully information which the Board of
Directors determines has not been made sufficiently or timely available to
stockholders, or (c) the Board of Directors determines that adjournment is
otherwise in the best interests of the Corporation. When any Annual Meeting or
special meeting of stockholders is adjourned to another hour, date or place,
notice need not be given of the adjourned meeting other than an announcement at
the meeting at which the adjournment is taken of the hour, date and place to
which the meeting is adjourned; provided, however, that if the adjournment is
for more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote thereat and each stockholder who, by
law or under the Certificate or these Bylaws, is entitled to such notice.
SECTION 6. Quorum. The holders of shares of voting stock representing a
majority of the voting power of the outstanding shares of voting stock issued,
outstanding and entitled to vote at a meeting of stockholders, represented in
person or by proxy at such meeting, shall constitute a quorum; but if less than
a quorum is present at a meeting, the holders of voting stock representing a
majority of the voting power present at the meeting or the presiding officer may
adjourn the meeting from time to time, and the meeting may be held as adjourned
without further notice, except as provided in Section 5 of this Article I. At
such adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally
noticed. The stockholders present at a duly constituted meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
<PAGE>
SECTION 7. Voting and Proxies. Stockholders shall have one vote for
each share of stock entitled to vote owned by them of record according to the
books of the Corporation, unless otherwise provided by law or by the
Certificate. Stockholders may vote either in person or by written proxy, but no
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period. Proxies shall be filed with the Secretary of
the meeting before being voted. Except as otherwise limited therein or as
otherwise provided by law, proxies shall entitle the persons authorized thereby
to vote at any adjournment of such meeting, but they shall not be valid after
final adjournment of such meeting. A proxy with respect to stock held in the
name of two or more persons shall be valid if executed by or on behalf of any
one of them unless at or prior to the exercise of the proxy the Corporation
receives a specific written notice to the contrary from any one of them. A proxy
purporting to be executed by or on behalf of a stockholder shall be deemed
valid, and the burden of proving invalidity shall rest on the challenger.
SECTION 8. Action at Meeting. When a quorum is present, any matter
before any meeting of stockholders shall be decided by the vote of a majority of
the voting power of shares of voting stock, present in person or represented by
proxy at such meeting and entitled to vote on such matter, except where a larger
vote is required by law, by the Certificate or by these Bylaws. Any election by
stockholders shall be determined by a plurality of the votes cast, except where
a larger vote is required by law, by the Certificate or by these Bylaws. The
Corporation shall not directly or indirectly vote any shares of its own stock;
provided, however, that the Corporation may vote shares which it holds in a
fiduciary capacity to the extent permitted by law.
SECTION 9. Action by Consent. Any action required or permitted to be
taken by the Stockholders of the Corporation at any annual or special meeting of
stockholders of the Corporation must be effected at a duly-called Annual or
Special Meeting of Stockholders and may not be taken or effected by a written
consent of stockholders in lieu thereof.
SECTION 10. Stockholder Lists. The Secretary or an Assistant Secretary
(or the Corporation's transfer agent or other person authorized by these Bylaws
or by law) shall prepare and make, at least 10 days before every Annual Meeting
or special 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 hour, date and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 11. Presiding Officer. The Chairman of the Board, if one is
elected, or if not elected or in his or her absence, the President, shall
preside at all Annual Meetings or special meetings of stockholders and shall
have the power, among other things, to adjourn such meeting at any time and from
time to time, subject to Sections 5 and 6 of this Article I. The order of
business and all other matters of procedure at any meeting of the stockholders
shall be determined by the presiding officer.
<PAGE>
SECTION 12. Voting Procedures and Inspectors of Elections. The
Corporation shall, in advance of any meeting of stockholders, appoint one or
more inspectors to act at the meeting and make a written report thereof. The
Corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to act at a
meeting of stockholders, the presiding officer shall appoint one or more
inspectors to act at the meeting. Any inspector may, but need not, be an
officer, employee or agent of the Corporation. Each inspector, before entering
upon the discharge of his or her duties, shall take and sign an oath faithfully
to execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall perform such duties as are
required by the General Corporation Law of the State of Delaware, as amended
from time to time (the "DGCL"), including the counting of all votes and ballots.
The inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors. The presiding
officer may review all determinations made by the inspector(s), and in so doing
the presiding officer shall be entitled to exercise his or her sole judgment and
discretion and he or she shall not be bound by any determinations made by the
inspector(s). All determinations by the inspector(s) and, if applicable, the
presiding officer shall be subject to further review by any court of competent
jurisdiction.
ARTICLE II
Directors
SECTION 1. Powers. The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors except as
otherwise provided by the Certificate or required by law.
SECTION 2. Number and Terms. The number of Directors of the Corporation
shall be fixed by resolution duly adopted from time to time by the Board of
Directors. The Directors shall hold office in the manner provided in the
Certificate.
SECTION 3. Director Nominations. Nominations of candidates for election
as directors of the Corporation at any Annual Meeting may be made only (a) by,
or at the direction of, a majority of the Board of Directors or (b) by any
holder of record (both as of the time notice of such nomination is given by the
stockholder as set forth below and as of the record date for the Annual Meeting
in question) of any shares of the capital stock of the Corporation entitled to
vote at such Annual Meeting who complies with the timing, informational and
other requirements set forth in this Section 3. Any stockholder who has complied
with the timing, informational and other requirements set forth in this Section
3 and who seeks to make such a nomination, or his, her or its representative,
must be present in person at the Annual Meeting. Only persons nominated in
accordance with the procedures set forth in this Section 3 shall be eligible for
election as directors at an Annual Meeting.
<PAGE>
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 as set forth in this Section 3. For the first
Annual Meeting following the initial public offering of common stock of the
Corporation, a stockholder's notice shall be timely if delivered to, or mailed
to and received by, the Corporation at its principal executive office not later
than the close of business on the later of (A) the 75th day prior to the
scheduled date of such Annual Meeting or (B) the 15th day following the day on
which public announcement of the date of such Annual Meeting is first made by
the Corporation. For all subsequent Annual Meetings, a stockholder's notice
shall be timely if delivered to, or mailed to and received by, the Corporation
at its principal executive office not less than 75 days nor more than 120 days
prior to the Anniversary Date; provided, however, that in the event the Annual
Meeting is scheduled to be held on a date more than 30 days before the
Anniversary Date or more than 60 days after the Anniversary Date, a
stockholder's notice shall be timely if delivered to, or mailed and received by,
the Corporation at its principal executive office not later than the close of
business on the later of (i) the 75th day prior to the scheduled date of such
Annual Meeting or (ii) the 15th day following the day on which public
announcement of the date of such Annual Meeting is first made by the
Corporation.
A stockholder's notice to the Secretary shall set forth as to each
person whom the stockholder proposes to nominate for election or re-election as
a director: (i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii) the
class and number of shares of the Corporation's capital stock which are
beneficially owned by such person on the date of such stockholder notice, and
(iv) the consent of each nominee to serve as a director if elected. A
stockholder's notice to the Secretary shall further set forth as to the
stockholder giving such notice: (i) the name and address, as they appear on the
Corporation's stock transfer books, of such stockholder and of the beneficial
owners (if any) of the Corporation's capital stock registered in such
stockholder's name and the name and address of other stockholders known by such
stockholder to be supporting such nominee(s), (ii) the class and number of
shares of the Corporation's capital stock which are held of record, beneficially
owned or represented by proxy by such stockholder and by any other stockholders
known by such stockholder to be supporting such nominee(s) on the record date
for the Annual Meeting in question (if such date shall then have been made
publicly available) and on the date of such stockholder's notice, and (iii) a
description of all arrangements or understandings between such stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by such
stockholder.
If the Board of Directors or a designated committee thereof determines
that any stockholder nomination was not made in accordance with the terms of
this Section 3 or that the information provided in a stockholder's notice does
not satisfy the informational requirements of this Section 3 in any material
respect, then such nomination shall not be considered at the Annual Meeting in
question. If neither the Board of Directors nor such committee makes a
determination as to whether a nomination was made in accordance with the
provisions of this Section 3, the presiding officer of the Annual Meeting shall
determine whether a nomination was made in accordance with such provisions. If
the presiding officer determines that any stockholder nomination was not made in
accordance with the terms of this Section 3 or that the information provided in
a stockholder's notice does not satisfy the informational requirements of this
Section 3 in any material respect, then such nomination shall not be considered
at the Annual Meeting in question. If the Board of Directors, a designated
committee thereof or the presiding officer determines that a nomination was made
in accordance with the terms of this Section 3, the presiding officer shall so
declare at the Annual Meeting and ballots shall be provided for use at the
meeting with respect to such nominee.
<PAGE>
Notwithstanding anything to the contrary in the second sentence of the
second paragraph of this Section 3, in the event that the number of directors to
be elected to the Board of Directors of the Corporation is increased and there
is no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors at least 75
days prior to the Anniversary Date, a stockholder's notice required by this
Section 3 shall also be considered timely, but only with respect to nominees for
any new positions created by such increase, if such notice shall be delivered
to, or mailed to and received by, the Corporation at its principal executive
office not later than the close of business on the 15th day following the day on
which such public announcement is first made by the Corporation.
No person shall be elected by the stockholders as a Director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section. Election of Directors at the annual meeting need not be by written
ballot, unless otherwise provided by the Board of Directors or presiding officer
at such annual meeting. If written ballots are to be used, ballots bearing the
names of all the persons who have been nominated for election as Directors at
the annual meeting in accordance with the procedures set forth in this Section
shall be provided for use at the annual meeting.
SECTION 4. Qualification. No Director need be a stockholder of the
Corporation.
SECTION 5. Vacancies. Subject to the rights, if any, of the holders of
any series of Preferred Stock of the Corporation to elect Directors and to fill
vacancies in the Board of Directors relating thereto, any and all vacancies in
the Board of Directors, however occurring, including, without limitation, by
reason of an increase in size of the Board of Directors, or the death,
resignation, disqualification or removal of a Director, shall be filled solely
by the affirmative vote of a majority of the remaining Directors then in office,
even if less than a quorum of the Board of Directors. Any Director appointed in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of Directors in which the new directorship was
created or the vacancy occurred and until such Director's successor shall have
been duly elected and qualified or until his or her earlier resignation or
removal. Subject to the rights, if any, of the holders of any series of
Preferred Stock of the Corporation to elect Directors, when the number of
Directors is increased or decreased, the Board of Directors shall determine the
class or classes to which the increased or decreased number of Directors shall
be apportioned; provided, however, that no decrease in the number of Directors
shall shorten the term of any incumbent Director. In the event of a vacancy in
the Board of Directors, the remaining Directors, except as otherwise provided by
law, may exercise the powers of the full Board of Directors until the vacancy is
filled.
SECTION 6. Removal. Directors may be removed from office in the
manner provided in the Certificate.
SECTION 7. Resignation. A Director may resign at any time by giving
written notice to the Chairman of the Board, if one is elected, the President or
the Secretary. A resignation shall be effective upon receipt, unless the
resignation otherwise provides.
<PAGE>
SECTION 8. Regular Meetings. The regular annual meeting of the Board of
Directors shall be held, without notice other than this By-Law, on the same date
and at the same place as the Annual Meeting following the close of such Annual
Meeting of Stockholders. Other regular meetings of the Board of Directors may be
held at such hour, date and place as the Board of Directors may by resolution
from time to time determine without notice other than such resolution.
SECTION 9. Special Meetings. Special meetings of the Board of Directors
may be called, orally or in writing, by or at the request of a majority of the
Directors, the Chairman of the Board, if one is elected, or the President. The
person calling any such special meeting of the Board of Directors may fix the
hour, date and place thereof.
SECTION 10. Notice of Meetings. Notice of the hour, date and place of
all special meetings of the Board of Directors shall be given to each Director
by the Secretary or an Assistant Secretary, or in case of the death, absence,
incapacity or refusal of such persons, by the Chairman of the Board, if one is
elected, or the President or such other officer designated by the Chairman of
the Board, if one is elected, or the President. Notice of any special meeting of
the Board of Directors shall be given to each Director in person, by telephone,
or by telex, telecopy, telegram, or other written form of electronic
communication, sent to his or her business or home address, at least 24 hours in
advance of the meeting, or by written notice mailed to his or her business or
home address, at least 48 hours in advance of the meeting. Such notice shall be
deemed to be delivered when hand delivered to such address, read to such
Director by telephone, deposited in the mail so addressed, with postage thereon
prepaid if mailed, dispatched or transmitted if telexed or telecopied, or when
delivered to the telegraph company if sent by telegram.
When any Board of Directors meeting, either regular or special, is
adjourned for 30 days or more, notice of the adjourned meeting shall be given as
in the case of an original meeting. It shall not be necessary to give any notice
of the hour, date or place of any meeting adjourned for less than 30 days or of
the business to be transacted thereat, other than an announcement at the meeting
at which such adjournment is taken of the hour, date and place to which the
meeting is adjourned.
A written waiver of notice signed before or after a meeting by a
Director and filed with the records of the meeting shall be deemed to be
equivalent to notice of the meeting. The attendance of a Director at a meeting
shall constitute a waiver of notice of such meeting, except where a Director
attends a meeting for the express purpose of objecting at the beginning of the
meeting to the transaction of any business because such meeting is not lawfully
called or convened. Except as otherwise required by law, by the Certificate or
by these Bylaws, neither the business to be transacted at, nor the purpose of,
any meeting of the Board of Directors need be specified in the notice or waiver
of notice of such meeting.
<PAGE>
SECTION 11. Quorum. At any meeting of the Board of Directors, a
majority of the Directors then in office shall constitute a quorum for the
transaction of business, but if less than a quorum is present at a meeting, a
majority of the Directors present may adjourn the meeting from time to time, and
the meeting may be held as adjourned without further notice, except as provided
in Section 10 of this Article II. Any business which might have been transacted
at the meeting as originally noticed may be transacted at such adjourned meeting
at which a quorum is present.
SECTION 12. Action at Meeting. At any meeting of the Board of Directors
at which a quorum is present, a majority of the Directors present may take any
action on behalf of the Board of Directors, unless otherwise required by law, by
the Certificate or by these Bylaws.
SECTION 13. Action by Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting if
all members of the Board of Directors consent thereto in writing. Such written
consent shall be filed with the records of the meetings of the Board of
Directors and shall be treated for all purposes as a vote at a meeting of the
Board of Directors.
SECTION 14. Manner of Participation. Directors may participate in
meetings of the Board of Directors by means of conference telephone or similar
communications equipment by means of which all Directors participating in the
meeting can hear each other, and participation in a meeting in accordance
herewith shall constitute presence in person at such meeting for purposes of
these Bylaws.
SECTION 15. Committees. The Board of Directors, by vote of a majority
of the Directors then in office, may elect from its number one or more
committees, including, without limitation, an Executive Committee, a
Compensation Committee, a Stock Option Committee and an Audit Committee, and may
delegate thereto some or all of its powers except those which by law, by the
Certificate or by these Bylaws may not be delegated. Except as the Board of
Directors may otherwise determine, any such committee may make rules for the
conduct of its business, but unless otherwise provided by the Board of Directors
or in such rules, its business shall be conducted so far as possible in the same
manner as is provided by these Bylaws for the Board of Directors. All members of
such committees shall hold such offices at the pleasure of the Board of
Directors. The Board of Directors may abolish any such committee at any time.
Any committee to which the Board of Directors delegates any of its powers or
duties shall keep records of its meetings and shall report its action to the
Board of Directors. The Board of Directors shall have power to rescind any
action of any committee, to the extent permitted by law, but no such rescission
shall have retroactive effect.
SECTION 16. Compensation of Directors. Directors shall receive such
compensation for their services as shall be determined by a majority of the
Board of Directors provided that Directors who are serving the Corporation as
employees and who receive compensation for their services as such, shall not
receive any salary or other compensation for their services as Directors of the
Corporation.
ARTICLE III
<PAGE>
Officers
SECTION 1. Enumeration. The officers of the Corporation shall consist
of a President, a Treasurer, a Secretary and such other officers, including,
without limitation, a Chairman of the Board of Directors and one or more Vice
Presidents (including Executive Vice Presidents or Senior Vice Presidents),
Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries, as
the Board of Directors may determine.
SECTION 2. Election. At the regular annual meeting of the Board
following the annual meeting of stockholders, the Board of Directors shall elect
the President, the Treasurer and the Secretary. Other officers may be elected by
the Board of Directors at such regular annual meeting of the Board of Directors
or at any other regular or special meeting.
SECTION 3. Qualification. No officer need be a stockholder or a
Director. Any person may occupy more than one office of the Corporation at any
time. Any officer may be required by the Board of Directors to give bond for the
faithful performance of his or her duties in such amount and with such sureties
as the Board of Directors may determine.
SECTION 4. Tenure. Except as otherwise provided by the Certificate or
by these Bylaws, each of the officers of the Corporation shall hold office until
the regular annual meeting of the Board of Directors following the next annual
meeting of stockholders and until his or her successor is elected and qualified
or until his or her earlier resignation or removal.
SECTION 5. Resignation. Any officer may resign by delivering his or her
written resignation to the Corporation addressed to the President or the
Secretary, and such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
SECTION 6. Removal. Except as otherwise provided by law, the Board of
Directors may remove any officer with or without cause by the affirmative vote
of a majority of the Directors then in office.
SECTION 7. Absence or Disability. In the event of the absence or
disability of any officer, the Board of Directors may designate another officer
to act temporarily in place of such absent or disabled officer.
SECTION 8. Vacancies. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors.
<PAGE>
SECTION 9. President. Unless otherwise provided by the Board of
Directors or the Certificate, the President shall be the Chief Executive Officer
of the Corporation and shall, subject to the direction of the Board of
Directors, have general supervision and control of the Corporation's business.
If there is no Chairman of the Board or if he or she is absent, the President
shall preside, when present, at all meetings of stockholders and of the Board of
Directors. The President shall have such other powers and perform such other
duties as the Board of Directors may from time to time designate.
SECTION 10. Chairman of the Board. The Chairman of the Board, if one is
elected, shall preside, when present, at all meetings of the stockholders and of
the Board of Directors. The Chairman of the Board shall have such other powers
and shall perform such other duties as the Board of Directors may from time to
time designate.
SECTION 11. Vice Presidents and Assistant Vice Presidents. Any Vice
President (including any Executive Vice President or Senior Vice President) and
any Assistant Vice President shall have such powers and shall perform such
duties as the Board of Directors or the Chief Executive Officer may from time to
time designate.
SECTION 12. Treasurer and Assistant Treasurers. The Treasurer shall,
subject to the direction of the Board of Directors and except as the Board of
Directors or the Chief Executive Officer may otherwise provide, have general
charge of the financial affairs of the Corporation and shall cause to be kept
accurate books of account. The Treasurer shall have custody of all funds,
securities, and valuable documents of the Corporation. He or she shall have such
other duties and powers as may be designated from time to time by the Board of
Directors or the Chief Executive Officer.
Any Assistant Treasurer shall have such powers and perform such duties
as the Board of Directors or the Chief Executive Officer may from time to time
designate.
SECTION 13. Secretary and Assistant Secretaries. The Secretary shall
record all the proceedings of the meetings of the stockholders and the Board of
Directors (including committees of the Board) in books kept for that purpose. In
his or her absence from any such meeting, a temporary secretary chosen at the
meeting shall record the proceedings thereof. The Secretary shall have charge of
the stock ledger (which may, however, be kept by any transfer or other agent of
the Corporation). The Secretary shall have custody of the seal of the
Corporation, and the Secretary, or an Assistant Secretary, shall have authority
to affix it to any instrument requiring it, and, when so affixed, the seal may
be attested by his or her signature or that of an Assistant Secretary. The
Secretary shall have such other duties and powers as may be designated from time
to time by the Board of Directors or the Chief Executive Officer. In the absence
of the Secretary, any Assistant Secretary may perform his or her duties and
responsibilities.
Any Assistant Secretary shall have such powers and perform such duties
as the Board of Directors or the Chief Executive Officer may from time to time
designate.
SECTION 14. Other Powers and Duties. Subject to these Bylaws and to
such limitations as the Board of Directors may from time to time prescribe, the
officers of the Corporation shall each have such powers and duties as generally
pertain to their respective offices, as well as such powers and duties as from
time to time may be conferred by the Board of Directors or the Chief Executive
Officer.
<PAGE>
ARTICLE IV
Capital Stock
SECTION 1. Certificates of Stock. Each stockholder shall be entitled to
a certificate of the capital stock of the Corporation in such form as may from
time to time be prescribed by the Board of Directors. Such certificate shall be
signed by the Chairman of the Board of Directors, the President or a Vice
President and by the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary. The Corporation seal and the signatures by Corporation
officers, the transfer agent or the registrar may be facsimiles. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed on such 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 or she were such officer,
transfer agent or registrar at the time of its issue. Every certificate for
shares of stock which are subject to any restriction on transfer and every
certificate issued when the Corporation is authorized to issue more than one
class or series of stock shall contain such legend with respect thereto as is
required by law.
SECTION 2. Transfers. Subject to any restrictions on transfer and
unless otherwise provided by the Board of Directors, shares of stock may be
transferred only on the books of the Corporation by the surrender to the
Corporation or its transfer agent of the certificate theretofore properly
endorsed or accompanied by a written assignment or power of attorney properly
executed, with transfer stamps (if necessary) affixed, and with such proof of
the authenticity of signature as the Corporation or its transfer agent may
reasonably require.
SECTION 3. Record Holders. Except as may otherwise be required by law,
by the Certificate or by these Bylaws, the Corporation shall be entitled to
treat the record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and the right to vote
with respect thereto, regardless of any transfer, pledge or other disposition of
such stock, until the shares have been transferred on the books of the
Corporation in accordance with the requirements of these Bylaws.
It shall be the duty of each stockholder to notify the Corporation of
his or her post office address and any changes thereto.
<PAGE>
SECTION 4. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof or entitled to receive payment of any 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 record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date: (1) in the case of
determination of stockholders entitled to vote at any meeting of stockholders,
shall, unless otherwise required by law, not be more than sixty nor less than
ten days before the date of such meeting and (2) in the case of any other
action, shall not be more than sixty days prior to such other action. If no
record date is fixed: (1) 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 and (2) 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.
SECTION 5. Replacement of Certificates. In case of the alleged loss,
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms as the Board of Directors may
prescribe.
ARTICLE V
Indemnification
SECTION 1. Definitions. For purposes of this Article: (a) "Officer"
means any person who serves or has served as a Director or officer of the
Corporation or in any other office filled by election or appointment by the
stockholders or the Board of Directors of the Corporation and any heirs,
executors, administrators or personal representatives of such person; (b)
"Non-Officer Employee" means any person who serves or has served as an employee
of the Corporation, but who is not or was not an Officer, and any heirs,
executors, administrators or personal representatives of such person; (c)
"Proceeding" means any threatened, pending, or completed action, suit or
proceeding (or part thereof), whether civil, criminal, administrative,
arbitrative or investigative, any appeal of such an action, suit or proceeding,
and any inquiry or investigation which could lead to such an action, suit, or
proceeding; and (d) "Expenses" means any liability fixed by a judgment, order,
decree or award in a Proceeding, any amount reasonably paid in settlement of a
Proceeding and any professional fees and other expenses and disbursements
reasonably incurred in a Proceeding or in settlement of a Proceeding, including
fines, taxes and penalties relating thereto.
<PAGE>
SECTION 2. Officers. Except as provided in Section 4 of this Article V,
each Officer of the Corporation shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the DGCL, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader rights
than said law permitted the Corporation to provide prior to such amendment)
against any and all Expenses incurred by such Officer in connection with any
Proceeding in which such Officer is involved as a result of serving or having
served (a) as an Officer or employee of the Corporation, (b) as a director,
officer or employee of any subsidiary of the Corporation, or (c) in any capacity
with any other corporation, organization, partnership, joint venture, trust or
other entity at the written request or direction of the Corporation, including
service with respect to employee or other benefit plans, and shall continue as
to an Officer after he or she has ceased to be an Officer and shall inure to the
benefit of his or her heirs, executors, administrators and personal
representatives; provided, however, that the Corporation shall indemnify any
such Officer seeking indemnification in connection with a Proceeding initiated
by such Officer only if such Proceeding was authorized by the Board of Directors
of the Corporation.
SECTION 3. Non-Officer Employees. Except as provided in Section 4 of
this Article V, each Non-Officer Employee of the Corporation may, in the
discretion of the Board of Directors, be indemnified by the Corporation to the
fullest extent authorized by the DGCL, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader rights than said law
permitted the Corporation to provide prior to such amendment) against any or all
Expenses incurred by such Non-Officer Employee in connection with any Proceeding
in which such Non-Officer Employee is involved as a result of serving or having
served (a) as a Non-Officer Employee of the Corporation, (b) as a director,
officer or employee of any subsidiary of the Corporation, or (c) in any capacity
with any other corporation, organization, partnership, joint venture, trust or
other entity at the request or direction of the Corporation, including service
with respect to employee or other benefit plans, and shall continue as to a
Non-Officer Employee after he or she has ceased to be a Non-Officer Employee and
shall inure to the benefit of his or her heirs, personal representatives,
executors and administrators; provided, however, that the Corporation may
indemnify any such Non-Officer Employee seeking indemnification in connection
with a Proceeding initiated by such Non-Officer Employee only if such Proceeding
was authorized by the Board of Directors of the Corporation.
SECTION 4. Good Faith. No indemnification shall be provided pursuant to
this Article V to an Officer or to a Non-Officer Employee with respect to a
matter as to which such person shall have been finally adjudicated in any
Proceeding not to have acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
and, with respect to any criminal Proceeding, had no reasonable cause to believe
his or her conduct was unlawful. In the event that a Proceeding is compromised
or settled prior to final adjudication so as to impose any liability or
obligation upon an Officer or Non-Officer Employee, no indemnification shall be
provided pursuant to this Article V to said Officer or Non-Officer Employee with
respect to a matter if there be a determination that with respect to such matter
such person did not act in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
and, with respect to any criminal Proceeding, had no reasonable cause to believe
his or her conduct was unlawful. The determination contemplated by the preceding
sentence shall be made by (i) a majority vote of those Directors who are not
involved in such Proceeding (the "Disinterested Directors"); (ii) by the
stockholders; or (iii) if directed by a majority of Disinterested Directors, by
independent legal counsel in a written opinion. However, if more than half of
the Directors are not Disinterested Directors, the determination shall be made
by (i) a majority vote of a committee of one or more disinterested Director(s)
chosen by the Disinterested Director(s) at a regular or special meeting; (ii) by
the stockholders; or (iii) by independent legal counsel chosen by the Board of
Directors in a written opinion.
<PAGE>
SECTION 5. Prior to Final Disposition. Unless otherwise determined by
(i) the Board of Directors, (ii) if more than half of the Directors are involved
in a Proceeding by a majority vote of a committee of one or more Disinterested
Director(s) chosen in accordance with the procedures specified in Section 4 of
this Article or (iii) if directed by the Board of Directors, by independent
legal counsel in a written opinion, any indemnification extended to an Officer
or Non-Officer Employee pursuant to this Article V shall include payment by the
Corporation or a subsidiary of the Corporation of Expenses as the same are
incurred in defending a Proceeding in advance of the final disposition of such
Proceeding upon receipt of an undertaking by such Officer or Non-Officer
Employee seeking indemnification to repay such payment if such Officer or
Non-Officer Employee shall be adjudicated or determined not to be entitled to
indemnification under this Article V.
SECTION 6. Contractual Nature of Rights. The foregoing provisions of
this Article V shall be deemed to be a contract between the Corporation and each
Officer and Non-Officer Employee who serves in such capacity at any time while
this Article V is in effect, and any repeal or modification thereof shall not
affect any rights or obligations then existing with respect to any state of
facts then or theretofore existing or any Proceeding theretofore or thereafter
brought based in whole or in part upon any such state of facts. If a claim for
indemnification or advancement of expenses hereunder by an Officer or
Non-Officer Employee is not paid in full by the Corporation within 60 days after
a written claim for indemnification or documentation of expenses has been
received by the Corporation, such Officer or Non-Officer Employee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim, and if successful in whole or in part, such Officer or Non-Officer
Employee shall also be entitled to be paid the expenses of prosecuting such
claim. The failure of the Corporation (including its Board of Directors or any
committee thereof, independent legal counsel, or stockholders) to make a
determination concerning the permissibility of such indemnification or
advancement of expenses under this Article V shall not be a defense to the
action and shall not create a presumption that such indemnification or
advancement is not permissible
SECTION 7. Non-Exclusivity of Rights. The provisions in respect of
indemnification and the payment of expenses incurred in defending a Proceeding
in advance of its final disposition set forth in this Article V shall not be
exclusive of any right which any person may have or hereafter acquire under any
statute, provision of the Certificate or these Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise; provided, however, that in
the event the provisions of this Article V in any respect conflict with the
terms of any agreement between the Corporation or any of its subsidiaries and
any person entitled to indemnification under this Article V, then the provision
which is more favorable to the relevant individual shall govern.
SECTION 8. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any Officer or Non-Officer Employee against any
liability of any character asserted against or incurred by the Corporation or
any such Officer or Non-Officer Employee, or arising out of any such status,
whether or not the Corporation would have the power to indemnify such person
against such liability under the DGCL or the provisions of this Article V.
<PAGE>
ARTICLE VI
Miscellaneous Provisions
SECTION 1. Fiscal Year. Except as otherwise determined by the Board of
Directors, the fiscal year of the Corporation shall end on the last day of
December of each year.
SECTION 2. Seal. The Board of Directors shall have power to adopt and
alter the seal of the Corporation.
SECTION 3. Execution of Instruments. All deeds, leases, transfers,
contracts, bonds, notes and other obligations to be entered into by the
Corporation in the ordinary course of its business without Director action may
be executed on behalf of the Corporation by the Chairman of the Board, if one is
elected, the President or the Treasurer or any other officer, employee or agent
of the Corporation as the Board of Directors or Executive Committee may
authorize.
SECTION 4. Voting of Securities. Unless the Board of Directors
otherwise provides, the Chairman of the Board, if one is elected, the President
or the Treasurer may waive notice of and act on behalf of this Corporation, or
appoint another person or persons to act as proxy or attorney in fact for this
Corporation with or without discretionary power and/or power of substitution, at
any meeting of stockholders or shareholders of any other corporation or
organization, any of whose securities are held by this Corporation.
SECTION 5. Resident Agent. The Board of Directors may appoint a
resident agent upon whom legal process may be served in any action or proceeding
against the Corporation.
SECTION 6. Corporate Records. The original or attested copies of the
Certificate, Bylaws and records of all meetings of the incorporators,
stockholders and the Board of Directors and the stock transfer books, which
shall contain the names of all stockholders, their record addresses and the
amount of stock held by each, may be kept outside the State of Delaware and
shall be kept at the principal office of the Corporation, at the office of its
counsel or at an office of its transfer agent or at such other place or places
as may be designated from time to time by the Board of Directors.
SECTION 7. Certificate. All references in these Bylaws to the
Certificate shall be deemed to refer to the Amended and Restated Certificate of
Incorporation of the Corporation, as amended and in effect from time to time.
SECTION 8. Amendment of Bylaws.
(a) Amendment by Directors. Except as provided otherwise by law,
these Bylaws may be amended or repealed by the Board of Directors.
<PAGE>
(b) Amendment by Stockholders. These Bylaws may be amended or repealed
at any annual meeting of stockholders, or special meeting of stockholders called
for such purpose, by the affirmative vote of at least two-thirds of the total
votes eligible to be cast on such amendment or repeal by holders of voting
stock, voting together as a single class; provided, however, that if the Board
of Directors recommends that stockholders approve such amendment or repeal at
such meeting of stockholders, such amendment or repeal shall only require the
affirmative vote of a majority of the total votes eligible to be cast on such
amendment or repeal by holders of voting stock, voting together as a single
class.
Adopted and effective as of October 27, 1997.
