U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1996
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934 For the transition period
from________ to___________
Commission file number: 33-28562
TOUCAN GOLD CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 75-2661571
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8201 Preston Road
Suite 600
Dallas, Texas 75225
(Address of principal executive offices)
(214) 890-8065
(Registrants's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Exchange Act during the past
12 months (or for such shorter period 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 the number of shares outstanding of each of the
issuer's classes of common stock, as of the latest practicable date:
Common Stock, $0.01 par value: 5,664,600 Shares Outstanding at August 19, 1996
Transitional Small Business Disclosure Format. Yes No X
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TOUCAN GOLD CORPORATION
INDEX TO FORM 10-QSB
Part I.
FINANCIAL INFORMATION
Item 1. Financial Statements (Unaudited) Page
Consolidated Balance Sheets as of
December 31, 1995 and June 30, 1996 ...... ............ 3
Consolidated Statements of Operations for the
Three Months and Six Months Ended
June 30, 1996 .................... 4
Consolidated Statements of Stockholders'
Equity for the Six Months Ended
June 30, 1996 .................... 5
Consolidated Statements of Cash Flows
for the Three Months and Six Months Ended
June 30, 1996.......................................... 6
Notes to Financial Statements.......................... 7
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations........ 9
Part II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K....................... 10
SIGNATURE .............................................. 11
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Toucan Gold Corporation
(formerly Starlight Acquisitions, Inc.)
(a development stage company)
CONSOLIDATED BALANCE SHEETS (UNAUDITED)
(See Accountants' Compilation Report)
<TABLE>
<CAPTION>
June 30, December 31,
ASSETS 1996 1995
------ -----
<S> <C> <C>
Cash $ 84,310 $ 45,208
Prepaid expenses 10,000 -
------- --
Total current assets 94,310 45,208
Mineral rights 175,290 175,290
-------- -------
Total assets $ 269,600 $220,498
======== =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Amounts payable to related parties $ 165,136 $126,328
Accrued expenses and other 48,000 -
------- --
Total current liabilities 213,136 126,328
Stockholders' equity
Preferred stock, no par value; authorized, 2,000,000 shares;
no shares outstanding - -
Common stock, $.02 par value per share in 1996 and no par
value in 1995; authorized 15,000,000 shares in 1996 and
1,000,000 in 1995; issued and outstanding, 5,664,600 shares
in 1996 and 647,857 in 1995 113,292 96,170
Additional paid-in capital 195,413 -
Deficit accumulated during development stage (252,241) (2,000)
-------- -------
Total stockholders' equity 56,464 94,170
------- -------
Total liabilities and stockholders' equity $ 269,600 $220,498
======== =======
</TABLE>
The accompanying notes are an integral part of these statements.
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Toucan Gold Corporation
(formerly Starlight Acquisitions, Inc.)
(a development stage company)
CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
(See Accountants' Compilation Report)
<TABLE>
<CAPTION>
Three months Six months
ended ended
June 30, 1996 June 30, 1996
Cost and expenses
<S> <C> <C>
Consulting fees $ 65,358 $ 117,020
Legal and professional fees 47,147 56,234
Travel and entertainment 22,369 51,028
Public relations 10,108 10,108
Maps and stationery 9,000 9,000
Transfer agent 3,156 3,156
Other 1,984 3,695
----- ------
Operating loss $(159,122) $(250,241)
======== ========
Net loss per share $ (.03) $ (.05)
======= =======
Weighted average shares outstanding 5,355,182 5,228,320
========= =========
</TABLE>
The accompanying notes are an integral part of these statements.
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Toucan Gold Corporation
(formerly Starlight Acquisitions, Inc.)
(a development stage company)
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY (UNAUDITED)
(See Accountants' Compilation Report)
<TABLE>
<CAPTION>
Deficit
accumulated
Additional during
Preferred stock Common stock paid-in development
Shares Amount Shares Amount capital stage Total
------ ------ -------- ------ --------- ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at January 1, 1996 $ - $ - $ 647,857 $ 96,170 $ - $ (2,000) $ 94,170
Recapitalization of Toucan
Mining Limited and
merger with Starlight
Acquisitions, Inc. - - 4,453,602 5,859 94,141 - 100,000
Issuance of common stock - - 563,141 11,263 101,272 - 112,535
Net loss - - - - - (250,241) (250,241)
--- --- --- --- --- -------- -------
Balance at June 30, 1996 $ - $ - 5,664,600 $113,292 $195,413 $(252,241) $ 56,464
=== === ========= ======= ======= ======== =======
</TABLE>
The accompanying notes are an integral part of these statements.
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Toucan Gold Corporation
(formerly Starlight Acquisitions, Inc.)
(a development stage company)
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(See Accountants' Compilation Report)
<TABLE>
<CAPTION>
Three months Six months
ended ended
June 30, 1996 June 30, 1996
Operating activities
<S> <C> <C>
Net loss $(159,122) $(250,241)
Net changes in operating assets and liabilities
Prepaid expenses - (10,000)
Accrued expenses 39,574 48,000
------- ----------
Net cash used in operating activities (119,548) (212,241)
Financing activities
Net on borrowings from related parties (28,783) 38,808
Issuance of common stock 112,535 112,535
Proceeds from merger with Starlight Acquisition, Inc. 100,000 100,000
-------- --------
Net cash provided by financing activities 183,752 251,343
-------- --------
Net increase in cash 64,204 39,102
Cash at beginning of period 20,106 45,208
------- -------
Cash at end of period $ 84,310 $ 84,310
======= =======
</TABLE>
The accompanying notes are an integral part of these statements.
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Toucan Gold Corporation
(formerly Starlight Acquisitions, Inc.)
(a development stage company)
NOTES TO FINANCIAL STATEMENTS
June 30, 1996
NOTE A - ORGANIZATION
Starlight Acquisitions, Inc. (Starlight) was formed in 1989 and was a
publicly-held development stage company with no principal operations since
its incorporation. On May 10, 1996, Starlight merged with Toucan Mining
Limited (Toucan Mining). Pursuant to the terms of the merger agreement,
each stockholder of Toucan Mining received seven shares of Starlight common
stock for each share of Toucan Mining common stock. Immediately after the
merger, the stockholders of Toucan Mining owned approximately 89% of the
outstanding common stock of Starlight. Therefore, the merger has been
accounted for as a reverse merger, whereby Toucan Mining is deemed to have
acquired Starlight.
During July 1996, Starlight formed Toucan Gold Corporation (Toucan Gold or
the Company), a wholly-owned subsidiary and a Delaware corporation. On July
29, 1996, Starlight merged into Toucan Gold, and pursuant to the terms of
the merger, the outstanding shares of Starlight were canceled in exchange
for shares of Toucan Gold. The authorized shares of Toucan Gold include
2,000,000 and 30,000,000 shares of preferred stock and common stock,
respectively, with par values of $.01.
NOTE B - GOING CONCERN
The Company is a development stage company at June 30, 1996, and is still
in the initial stages of exploration. However, management believes that the
Company will be able to obtain adequate resources to develop its mineral
rights. Management also believes that future revenues will exceed the
carrying amount of the mineral rights and that revenues will be adequate to
support the Company's cost structure and enable it to achieve profitable
operations in the future.
NOTE C - BASIS OF PRESENTATION
The accompanying unaudited financial statements have been prepared in
accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-QSB and Rule
10-01 of Regulation S-X. Accordingly, they do not include all of the
information and footnotes required by generally accepted accounting
principles for complete financial statements. In the opinion of management,
all adjustments (which include only normal recurring adjustments) necessary
for a fair presentation of the results for the interim periods presented
have been made. The results of operations for such interim periods are not
necessarily indicative of the results of operations for a full year.
The accompanying notes are an integral part of these statements.
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Toucan Gold Corporation
(formerly Starlight Acquisitions, Inc.)
(a development stage company)
NOTES TO FINANCIAL STATEMENTS - CONTINUED
June 30, 1996
NOTE D - MINERAL RIGHTS
Costs incurred to acquire and develop mineral rights have been capitalized
and will be amortized as revenues are generated from the holding of those
rights. If future revenues are less than the carrying amount of the mineral
rights, the Company may recognize a loss to write-down the mineral rights
to their realizable value. The Company's wholly-owned Brazilian
incorporated subsidiary, Mineradora de Bauxita Ltda., is the registered
holder of the mineral rights.
NOTE E - RELATED PARTIES
Amounts payable to related parties consist of the following at June 30,
1996:
Stockholders $ 60,512
Cardinal Holdings Limited 103,710
Mustardseed Estates Limited 914
----------
$ 165,136
The loans to the stockholders are noninterest-bearing, unsecured and with
no specific maturity date. The loans to Cardinal Holdings Limited and
Mustardseed Estates Limited bear interest at 10%. These loans are unsecured
and are due upon demand.
The accompanying notes are an integral part of these statements.
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ITEM 2 - Management's Discussion and Analysis of Financial Condition or Plan of
Operations
Effective May 10, 1996, Starlight Acquisitions, Inc. (Starlight), a
Colorado corporation, acquired all of the outstanding capital stock of Toucan
Mining Limited (Toucan Mining), a company organized under the laws of the Isle
of Man, in exchange for shares of common stock of Starlight. As a result of the
share exchange, a change in control of Starlight occurred, whereby Toucan Mining
is deemed to have acquired Starlight. See Notes to the Consolidated Financial
Statements.
Toucan Mining is a development stage company that conducts its operations
primarily through its wholly-owned subsidiary, Mineradora de Bauxita Ltda.
(MBL), which is an authorized mining company organized under the laws of Brazil.
MBL has been financed entirely by Toucan Mining for the purpose of conducting
mineral exploration, specifically gold exploration.
During July 1996, Starlight formed Toucan Gold Corporation, (Toucan Gold or
the Company), a wholly-owned subsidiary and a Delaware corporation. On July 29,
1996, Starlight merged into Toucan Gold, and pursuant to the terms of the
merger, the outstanding shares of Starlight were canceled in exchange for shares
of Toucan Gold.
The consolidated financial statements for the three months and six months
ended June 30, 1996, reflect the results of the Company's operations, which
consisted primarily of legal and consulting fees incurred by the Company for the
merger between Starlight and Toucan Mining.
The Company intends to undertake a program of mineral exploration to target
and explore selected areas of its Brazilian mining claims to determine which
areas are most likely to contain economic gold mineralization. A mapping program
based upon satellite imagery will precede field investigation, which will
include detailed geologic mapping, geochemical sampling and drilling in
accordance with standard exploration practice. A program of this nature is
likely to take several years and could involve joint ventures. In the event of
encouraging results in a particular area, a more concentrated study will be
undertaken to provide the basis of a feasibility study for mineral development.
MBL will also be working to acquire additional claims in the Cuiba basin.
To fund this program for up to two years and to pay for normal expenses,
the Company will need to raise approximately $4 million, net of offering costs,
although there is no assurance that such funds will be adequate. The expenses
for the first 12 months are anticipated to be approximately $2.5 million of
which approximately 80% is expected to be spent on direct or ancillary in-ground
exploration costs and 10% on the acquisition of future claims. The plan will be
subject to review depending upon the results obtained. Costs could rise if,
among other things, the weather proves untypically harsh, unforeseen ground
conditions are encountered, equipment becomes difficult to source or
negotiations with surface owners become prolonged. MBL may spend more or less on
claim acquisitions than currently estimated. There can be no assurance that the
exploration program will result in the discovery of economic gold
mineralization. The matters discussed herein contain forward-looking statements
that involve certain risks, uncertainties and additional costs detailed herein.
The actual results that are achieved may differ materially from any
forward-looking projections, due to such risks, uncertainties and additional
costs.
Currently, the Company intends to raise approximately $4.5 million of gross
offering proceeds through the issuance of preferred stock pursuant to Regulation
S under the Securities Act of 1933, as amended (the "Act"). The Company has
agreed upon a preliminary term sheet with a non-U.S. placement agent. If such
offering is made under Regulation S, the securities will not be registered under
the Act and will not be offered or sold in the United States or to U.S. persons.
There can be no assurance that the Company will be able to raise such funds
through the issuance of preferred stock as described above or through other
means.
Certain of the information contained in Parts I and II of this Form 10-QSB
constitutes forward looking statements within the meaning of Section 27A of the
Securities Act and Section 21E of the Securities Exchange Act of 1934. Although
the Company believes that the expectations reflected in such forward looking
statements are based upon
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reasonable assumptions, it can give no assurance that its expectations will be
achieved. An important factor is the Company's ability to raise sufficient
capital to execute its business plan and meet its obligations. Therefore, the
actual results that are achieved may differ materially from any such forward
looking information.
PART II. OTHER INFORMATION
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(A) Exhibits:
2.1* Agreement and Plan of Merger, dated as of July 29,1996,
between Toucan Gold Corporation, a Delaware
Corporation, and Starlight Acquisitions, Inc., a
Colorado Corporation (Exhibit 2.1).
2.2** Share Exchange Agreement, dated May 10, 1996, by and
among Starlight Acquisition, Inc. and the Shareholders
of Toucan Mining Limited (Exhibit 2).
3(i)* Certificate of Incorporation of Toucan Gold Corporation
(Exhibit 4.1).
3(ii) Bylaws.
10.1** Warrant Agreement, dated May 10, 1996, by and between
Starlight Acquisitions, Inc. and R. Haydn Silleck, John
B. Marvin,Peter S. Daley and Jay Lutsky (Exhibit 10.1).
10.2** Indemnification Agreement, dated May 10, 1996, by and
among R. Haydn Silleck, John B. Marvin, Peter S. Daley,
Jay Lutsky, Starlight Acquisition, Inc. and Toucan
Mining Limited (Exhibit 10.2).
16.1* Statement from Deloitte & Touche regarding change in
certifying accountant for Toucan Mining Limited
(Exhibit 16.1).
16.2** Statement from Comiskey & Company, P.C. regarding
change in certifying accountants (Exhibit 16).
27 Financial Data Schedule.
99.1* Press Release, dated July 29, 1996, announcing
Starlight's reincorporation and name change (Exhibit
99.1).
- ---------------------
*Incorporated by reference from the exhibit shown in parenthesis
contained in the Company's Current Report on Form 8-K dated August 8,
1996.
**Incorporated by reference from the exhibit shown in parenthesis
contained in the Company's Current Report on Form 8-K dated May 13,
1996.
(B) Reports on Form 8-K
On May 13, 1996, the Company filed a Current Report on Form 8-K (the
"May 8-K") reporting (i) the share exchange and change of control of the Company
under Items 1 and 2, (ii) the change in the Company's certifying accountant
under Item 4 and (iii) the approval of a Regulation S offering and the approval
of the Company's name change by the Board of Directors under Item 5. On June 19,
1996, the Company filed a Current Report on Form 8-K reporting the consummation
of the Regulation S offering described in the May 8-K and the change in the
Company's transfer agent, each under Item 5. On July 15, 1996, the Company filed
an Amended Current Report on Form 8-K/A to amend the May 8-K to include the
financial statements required under Item 7. On August 8, 1996, the Company filed
a Current Report on Form 8-K to report (i) the engagement of new certifying
accountants for the Company and the resignation of the former certifying
accountant of Toucan Mining Limited, each under Item 4, and (ii) the
reincorporation of the Company under Item 5.
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SIGNATURE
In accordance with the requirements of the Exchange Act, the registrant
caused this amended report to be signed on its behalf by the undersigned,
thereunto duly authorized.
Toucan Gold Corporation
(Registrant)
Date: August 23, 1996 By: /s/ Robert Jeffcock
-------------------
Robert Jeffcock
(Principal Financial Officer and
Duly Authorized Officer)
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INDEX TO EXHIBITS
Exhibits Exhibit Item
2.1 Agreement and Plan of Merger, dated as of July 29,1996,
between Toucan Gold Corporation, a Delaware
Corporation, and Starlight Acquisitions, Inc., a
Colorado Corporation (Exhibit 2.1).
2.2** Share Exchange Agreement, dated May 10, 1996, by and
among Starlight Acquisition, Inc. and the Shareholders
of Toucan Mining Limited (Exhibit 2).
3(i)* Certificate of Incorporation of Toucan Gold
Corporation (Exhibit 4.1).
3(ii) Bylaws.
10.1** Warrant Agreement, dated May 10, 1996, by and between
Starlight Acquisitions, Inc. and R. Haydn Silleck, John
B. Marvin, Peter S. Daley and Jay Lutsky (Exhibit
10.1).
10.2** Indemnification Agreement, dated May 10, 1996, by and
among R. Haydn Silleck, John B. Marvin, Peter S. Daley,
Jay Lutsky, Starlight Acquisition, Inc. and Toucan
Mining Limited (Exhibit 10.2).
16.1* Statement from Deloitte & Touche regarding change in
certifying accountant for Toucan Mining Limited
(Exhibit 16.1).
16.2** Statement from Comiskey & Company, P.C. regarding
change in certifying accountants (Exhibit 16).
27 Financial Data Schedule.
99.1* Press Release, dated July 29, 1996, announcing
Starlight's reincorporation and name change (Exhibit
99.1).
- ---------------------
*Incorporated by reference from the exhibit shown in parenthesis
contained in the Company's Current Report on Form 8-K dated August 8,
1996. **Incorporated by reference from the exhibit shown in parenthesis
contained in the Company's Current Report on Form 8-K dated May 13,
1996.
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TOUCAN GOLD CORPORATION
BYLAWS
ARTICLE I
OFFICES
Section 1.1. Registered Office. The registered office shall be in
the City of Wilmington, County of New Castle, State of Delaware.
Section 1.2. Other Offices. The corporation may also have offices at
such other places, either within or without the State of Delaware, as the board
of directors may from time to time to determine or as the business of the
corporation may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 2.l. Place of Meetings. All meetings of the stockholders shall
be held at the office of the corporation or at such other places as may be fixed
from time to time by the board of directors, either within or without the State
of Delaware, and stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2.2. Annual Meetings. Annual meetings of stockholders,
commencing with the year 1997, shall be held at the time and place to be
selected by the board of directors. If the day is a legal holiday, then the
meeting shall be held on the next following business day. At the meeting, the
stockholders shall elect a board of directors by written ballot and transact
such other business as may properly be brought before the meeting.
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Section 2.3. Notice of Annual Meeting. Written notice of the annual
meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting.
Section 2.4. Voting List. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 2.5. Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by (a) the chairman of the board, or
(b) the president and shall be called by the president or secretary at the
request in writing of a majority of the board of directors, or (c) by the
holders of ten percent or more of the outstanding shares of stock of the
corporation. Such request shall state the purpose or purposes of the proposed
meeting.
Section 2.6. Notice of Special Meetings. Written notice of a special
meeting stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given not less than ten nor
more than sixty days before the date of the meeting, to each
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stockholder entitled to vote at such meeting. Business transacted at any special
meeting of the stockholders shall be limited to the purposes stated in the
notice.
Section 2.7. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 2.8. Order of Business. At each meeting of the stockholders,
one of the following persons, in the order in which they are listed (and in the
absence of the first, the next, and so on), shall serve as chairman of the
meeting: president, chairman of the board, vice presidents (in the order of
their seniority if more than one) and secretary. The order of business at each
such meeting shall be as determined by the chairman of the meeting. The chairman
of the meeting shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts and things as are necessary
or desirable for the proper conduct of the meeting, including, without
limitation, the establishment of procedures for the maintenance of order and
safety, limitations on the time allotted to questions or comments on the affairs
of the corporation,
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restrictions on entry to such meeting after the time prescribed for the
commencement thereof, and the opening and closing of the voting polls.
Section 2.9. Majority Vote. When a quorum is present at any meeting,
the vote of the holders of a majority of the stock having voting power present
in person or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which, by express provision of the
statutes or of the certificate of incorporation, a different vote is required,
in which case such express provision shall govern and control the decision of
such question.
Section 2.10. Method of Voting. Unless otherwise provided in the
certificate of incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date, unless the proxy provides for a
longer period.
ARTICLE 3
DIRECTORS
Section 3.1. General Powers. The business and affairs of the
corporation shall be managed by or under the direction of the board of
directors, which may exercise all such powers of the corporation and do all such
lawful acts and things as are not by law or by the certificate of incorporation
of the corporation or by these Bylaws directed or required to be exercised or
done by the stockholders.
Section 3.2. Number of Directors. Except as otherwise fixed by or
pursuant to the provisions of Article 6 of the Certificate of Incorporation of
the corporation relating to the rights of the holders of any class or series of
stock having preference over the common stock as to dividends or upon
liquidation, the board of directors shall have not less than One (1) nor more
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than Nine (9) directors. The number of directors constituting the board shall be
such number as shall be from time to time specified by resolution of the board
of directors; provided, however, no director's term shall be shortened by reason
of a resolution reducing the number of directors; and further provided that the
number of directors constituting the initial board of directors shall be Four
(4) and, shall remain such number unless and until changed by resolution of the
board of directors aforesaid.
Section 3.3. Election Qualification and Term of Office of Directors.
Directors shall be elected at each annual meeting of stockholders to hold office
until the next annual meeting. Directors need not be stockholders unless so
required by the certificate of incorporation or these Bylaws, wherein other
qualifications for directors may be prescribed. Each director, including a
director elected to fill a vacancy, shall hold office until his successor is
elected and qualified or until his earlier resignation or removal. Elections of
directors need not be by written ballot.
Section 3.4. Notification of Nominations. Subject to the rights of the
holders of any class or series of stock having a preference over the common
stock as to dividends or upon liquidation, nominations for the election of
directors may be made by the board of directors or by any stockholder entitled
to vote for the election of directors. Any stockholder entitled to vote for the
election of directors at a meeting may nominate persons for election as
directors only if written notice of such stockholder's intent to make such
nomination is given, either by personal delivery or by United States mail,
postage prepaid, to the secretary of the corporation not later than (i) with
respect to an election to be held at an annual meeting of stockholders, ninety
days in advance of such meeting, and (ii) with respect to an election to be held
at a special meeting of stockholders for the election of directors, the close of
business on the seventh day following the date on which notice of such meeting
is first given to stockholders. Each such notice shall set forth: (a) the
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name and address of the stockholder who intends to make the nomination and of
the person or persons intended to be nominated; (b) a representation that the
stockholder is a holder of record of stock of the corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (c) a description of all
arrangements or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (d) such other
information regarding each nominee proposed by such stockholder as would have
been required to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission had each nominee been nominated,
or intended to be nominated, by the board of directors; and (e) the consent of
each nominee to serve as a director of the corporation if so elected. The
chairman of the meeting may refuse to acknowledge the nomination of any person
not made in compliance with the foregoing procedure.
Section 3.5. First Meetings. The first meeting of each newly elected
board of directors shall be held at such time and place as shall be fixed by the
vote of the stockholders at the annual meeting and no notice of such meeting
shall be necessary to the newly elected directors in order legally to constitute
the meeting, provided a quorum shall be present. In the event of the failure of
the stockholders to fix the time or place of such first meeting of the newly
elected board of directors, or in the event such meeting is not held at the time
and place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
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Section 3.6. Regular Meetings. Regular meetings of the board of
directors may be held without notice at such times and at such places as shall
from time to time be determined by the board.
Section 3.7. Special Meetings. Special meetings of the board may be
called by the chairman of the board or the president, and shall be called by the
president or secretary on the written request of two directors unless the board
consists of only one director, in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 3.8. Quorum, Majority Vote. At all meetings of the board, a
majority of the entire board of directors shall constitute a quorum for the
transaction of business and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the board of
directors, except as may be otherwise specifically provided by statute or by the
certificate of incorporation. If a quorum shall not be present at any meeting of
the board of directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
Section 3.9. Action Without Meeting. Unless otherwise restricted by the
certificate of incorporation or these bylaws, any action required or permitted
to be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of the proceedings of the board or committee.
Section 3.10. Telephone and Similar Meetings. Unless otherwise
restricted by the certificate of incorporation or these Bylaws, members of the
board of directors, or any committee designated by the board of directors, may
participate in a meeting of the board of directors, or any
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committee, by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and such participation in a meeting shall constitute presence in person at the
meeting.
Section 3.11. Notice of Meetings. Notice of regular meetings of the
board of directors or of any adjourned meeting thereof need not be given. Notice
of each special meeting of the board shall be mailed to each director, addressed
to such director at such director's residence or usual place of business, at
least two days before the day on which the meeting is to be held or shall be
sent to such director at such place by telegraph or be given personally or by
telephone, not later than the day before the meeting is to be held, but notice
need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of such notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to such
director. Every such notice shall state the time and place but need not state
the purpose of the meeting.
Section 3.12. Rules and Regulations. The board of directors may adopt
such rules and regulations not inconsistent with the provisions of law, the
certificate of incorporation of the corporation or these Bylaws for the conduct
of its meetings and management of the affairs of the corporation as the board
may deem proper.
Section 3.13. Resignations. Any director of the corporation may at any
time resign by giving written notice to the board of directors, the chairman of
the board, the president or the secretary of the corporation. Such resignation
shall take effect at the time specified therein or, if the time be not
specified, upon receipt thereof; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
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Section 3.14. Removal of Directors. Unless otherwise restricted by
statute, by the certificate of incorporation or by these Bylaws, any director or
the entire board of directors may be removed, with or without cause by the
holders of a majority of the shares then entitled to vote at an election of
directors.
Section 3.15. Vacancies. Subject to the rights of the holders of any
class or series of stock having a preference over the common stock of the
corporation as to dividends or upon liquidation, any vacancies on the board of
directors resulting from death, resignation, removal or other cause, shall only
be filled by the affirmative vote of a majority of the remaining directors then
in office, even though less than a quorum of the board of directors, or by a
sole remaining director, and newly created directorships resulting from any
increase in the number of directors shall be filled by the board of directors,
or if not so filled, by the stockholders at the next annual meeting thereof or
at a special meeting called for that purpose in accordance with Section 2.5 of
Article II of these Bylaws. Any director elected in accordance with the
preceding sentence of this Section 3.14 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 successor shall have been elected
and qualified.
Section 3.16. Compensation of Directors. Unless otherwise restricted by the
certificate of incorporation or these Bylaws, the board of directors shall have
the authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the board of directors
and may be paid a fixed sum for attendance at each meeting of the board of
directors or a stated salary as director. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor. Members
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of special or standing committees may be allowed like compensation for attending
committee meetings.
ARTICLE 4
EXECUTIVE AND OTHER COMMITTEES
Section 4.1. Executive Committee. The board of directors may, by
resolution adopted by a majority of the entire board, designate annually one (1)
or more of its members to constitute members or alternate members of an
executive committee, which committee shall have and may exercise, between
meetings of the board, all the powers and authority of the board in the
management of the business and affairs of the corporation, including, if such
committee is so empowered and authorized by resolution adopted by a majority of
the entire board, the power and authority to declare a dividend and to authorize
the issuance of stock, and may authorize the seal of the corporation to be
affixed to all papers which may require it, except that the executive committee
shall not have such power or authority with reference to:
(a) amending the certificate of incorporation of the
corporation;
(b) adopting an agreement of merger or consolidation
involving the corporation;
(c) recommending to the stockholders the sale, lease or
exchange of all or substantially all of the property and
assets of the corporation;
(d) recommending to the stockholders a dissolution of the
corporation or a revocation of a dissolution;
(e) adopting, amending or repealing any Bylaw;
(f) filling vacancies on the board or on any committee of the
board, including the executive committee;
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(g) fixing the compensation of directors for serving on the
board or on any committee of the board, including the
executive committee; or
(h) amending or repealing any resolution of the board which
by its terms may be amended or repealed only by the board.
Section 4.2. Other Committees. The board of directors may, by resolution
adopted by a majority of the entire board, designate from among its members one
or more other committees, each of which shall, except as otherwise prescribed by
law, have such authority of the board as may be specified in the resolution of
the board designating such committee. A majority of all the members of such
committee may determine its action and fix the time and place of its meetings,
unless the board shall otherwise provide. The board shall have the power at any
time to change the membership of, to increase or decrease the membership of, to
fill all vacancies in and to discharge any such committee, or any member
thereof, either with or without cause.
Section 4.3. Procedure; Meetings; Quorum. Regular meetings of the
executive committee or any other committee of the board of directors, of which
no notice shall be necessary, may be held at such times and places as shall be
fixed by resolution adopted by a majority of the members thereof. Special
meetings of the executive committee or any other committee of the board shall be
called at the request of any member thereof. Notice of each special meeting of
the executive committee or any other committee of the board shall be sent by
mail, telegraph or telephone, or be delivered personally to each member thereof
not later than the day before the day on which the meeting is to be held, but
notice need not be given to any member who shall, either before or after the
meeting, submit a signed waiver of such notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of such notice to
such member. Any special meeting of the executive committee or any other
committee of the board
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shall be a legal meeting without any notice thereof having been given, if all
the members thereof shall be present thereat. Notice of any adjourned meeting of
any committee of the board need not be given. The executive committee or any
other committee of the board may adopt such rules and regulations not
inconsistent with the provisions of law, the certificate of incorporation of the
corporation or these Bylaws for the conduct of its meetings as the executive
committee or any other committee of the board may deem proper. A majority of the
executive committee or any other committee of the board shall constitute a
quorum for the transaction of business at any meeting, and the vote of a
majority of the members thereof present at any meeting at which a quorum is
present shall be the act of such committee. In the absence or disqualification
of a member, the remaining members, whether or not a quorum, may fill a vacancy.
The executive committee or any other committee of the board of directors shall
keep written minutes of its proceedings, a copy of which is to be filed with the
secretary of the corporation, and shall report on such proceedings to the board.
ARTICLE 5
NOTICES
Section 5.l. Method. Whenever, under the provisions of the statutes or
of the certificate of incorporation or of these Bylaws, notice is required to be
given to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
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Section 5.2. Waiver. Whenever any notice is required to be given under
the provisions of the statutes or of the certificate of incorporation or of
these Bylaws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE 6
OFFICERS
Section 6.1. Election, Qualification. The officers of the corporation
shall be chosen by the board of directors and shall be a president, one or more
vice presidents, a secretary and a treasurer. The board of directors may also
choose a chairman of the board, one or more assistant secretaries and assistant
treasurers and such other officers and agents as it shall deem necessary. Any
number of offices may be held by the same person, unless the certificate of
incorporation or these Bylaws otherwise provide.
Section 6.2. Salary. The salaries of all officers and agents of
the corporation shall be fixed by the board of directors.
Section 6.3. Term, Removal. The officers of the corporation shall hold
office until their successors are chosen and qualify. Any officer elected or
appointed by the board of directors may be removed at any time by the
affirmative vote of a majority of the board of directors. Any vacancy occurring
in any office of the corporation shall be filled by the board of directors.
Section 6.4. Resignation. Subject at all times to the right of removal
as provided in Section 6.3 of this Article 6, any officer may resign at any time
by giving notice to the board of directors, the president or the secretary of
the corporation. Any such resignation shall take effect at the date of receipt
of such notice or at any later date specified therein; provided that the
president or, in the event of the resignation of the president, the board of
directors may designate
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an effective date for such resignation which is earlier than the date specified
in such notice but which is not earlier than the date of receipt of such notice;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 6.5. Vacancies. A vacancy in any office because of death,
resignation, removal or any other cause may be filled for the unexpired portion
of the term in the manner prescribed in these Bylaws for election to such office
Section 6.6. Chairman of the Board. The chairman of the board shall, if
there be such an officer, preside at meetings of the board of directors and, if
present, and in the absence of the president, preside at meetings of the
stockholders. The chairman of the board shall counsel with and advise the
president and perform such other duties as the president or the board or the
executive committee may from time to time determine. Except as otherwise
provided by resolution of the board, the chairman of the board shall be
ex-officio a member of all committees of the board. The chairman of the board
may sign and execute in the name of the corporation deeds, mortgages, bonds,
contracts or other instruments authorized by the board of any committee thereof
empowered to authorize the same.
Section 6.7. President. The president shall be the chief executive
officer of the corporation, shall preside at all meetings of the stockholders
and the board of directors, shall have general and active management of the
business of the corporation and shall see that all orders and resolutions of the
board of directors are carried into effect. He shall execute bonds, mortgages
and other contracts requiring a seal, under the seal of the corporation, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the board of directors to some other officer or agent of the corporation.
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Section 6.8. Vice Presidents. In the absence of the president and the
chairman of the board or, in the event of their inability or refusal to act, the
vice president (or in the event there be more than one vice president, the vice
presidents in the order designated by the directors, or in the absence of any
designation, then in the order of their election) shall perform the duties of
the president, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the president. The vice presidents shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
Section 6.9. Secretary. The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The board of directors may give general authority to
any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 6.10. Assistant Secretary. The assistant secretary, or if there
be more than one, the assistant secretaries in the order determined by the board
of directors (or if there be no such determination, then in the order of their
election) shall, in the absence of the secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
secretary
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and shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 6.11. Treasurer. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors. He shall disburse the funds of the corporation as may be ordered by
the board of directors, taking proper vouchers for such disbursements, and shall
render to the president and the board of directors, at its regular meetings, or
when the board of directors so requires, an account of all his transactions as
treasurer and of the financial condition of the corporation. If required by the
board of directors, he shall give the corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 6.12. Assistant Treasurer. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order determined by the
board of directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
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ARTICLE 7
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
Section 7.1. Third-Party Actions. The corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that such person is or was a
director or officer of the corporation, or is or was serving at the request of
the corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, against all expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which such
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, that such
person had reasonable cause to believe that his or her conduct was unlawful.
The corporation may indemnify any employee or agent of the corporation,
or any employee or agent serving at the request of the corporation as an
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, in the manner and to the extent that it shall indemnify any
director or officer under this Section 7.1.
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Section 7.2. Derivative Actions. The corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against all expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made with respect to any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of such person's duty to
the corporation unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery of Delaware or such
other court shall deem proper.
Section 7.3. Determination of Indemnification. Any indemnification
under Section 7.1 or 7.2 of this Article 7 (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because such person has met the applicable
standard of conduct set forth in Section 7.1 or 7.2 of this Article 7. Such
determination shall be made (i) by a majority vote of the directors who are not
parties to such action, suit or proceeding,
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even though less than a quorum, or (ii) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written opinion, or
(iii) by the stockholders.
Section 7.4. Right to Indemnification. Notwithstanding the other
provisions of this Article 7, to the extent that a director, officer, employee
or agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 7.1 or 7.2 of
this Article 7, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
Section 7.5. Advance of Expenses. Expenses incurred in defending a
civil or criminal action, suit or proceeding may be paid by the corporation on
behalf of a director, officer, employee or agent in advance of the final
disposition of such action, suit or proceeding as authorized by the board of
directors in the specific case upon receipt of an undertaking by or on behalf of
the director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that such person is entitled to be indemnified by the
corporation as authorized in this Article 7.
Section 7.6. Indemnification Not Exclusive. The indemnification
provided by this Article 7 shall not be deemed exclusive of any other rights to
which any person seeking indemnification may be entitled under any law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in such person's official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
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Section 7.7. Insurance. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of
such person's status as such, whether or not the corporation would have the
power to indemnify such person against liability under the provisions of this
Article 7.
Section 7.8. Definitions of Certain Terms. For purposes of this Article
7, references to "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Article 7 with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate
existence had continued.
For purposes of this Article 7, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; references
to "serving at the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which imposes duties on,
or involves services by such director, officer, employee or agent with respect
to an employee benefit plan, its participants, or beneficiaries; and a person
who acted in good faith and in a
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manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this Article 7.
Section 7.9. Liability of Directors. Notwithstanding any provision of
the Certificate of Incorporation or any other provision herein, no director
shall be personally liable to the Corporation or any stockholder for monetary
damages for breach of fiduciary duty as a director, except for any matter in
respect of which such director shall be liable under Section 174 of Title 8 of
the Delaware Code (relating to the Delaware General Corporation Law) or any
amendment thereto or successor provision thereto or shall be liable by reason
that, in addition to any and all other requirements for such liability, he (i)
shall have breached his duty of loyalty to the Corporation or its stockholders,
(ii) shall not have acted in good faith, (iii) shall have acted in a manner
involving intentional misconduct or a knowing violation of law or, in failing to
act, shall have acted in a manner involving intentional misconduct or a knowing
violation of law or (iv) shall have derived an improper personal benefit.
ARTICLE 8
CERTIFICATES OF STOCK
Section 8.1. Certificates. Every holder of stock in the corporation
shall be entitled to have a certificate, signed by, or in the name of the
corporation by, the chairman or vice chairman of the board of directors, or the
president or a vice president and the treasurer or an assistant treasurer, or
the secretary or an assistant secretary of the corporation, certifying the
number of shares owned by him in the corporation.
Section 8.2. Facsimile Signatures. Any of or all the signatures
on the certificate may be facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile
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signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 8.3. Lost Certificates. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 8.4. Transfers of Stock. Upon surrender to the corporation or
the transfer agent of the corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 8.5. Fixing 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 to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose
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of any other lawful action, the board of directors may fix, in advance, a record
date, which shall not be more than sixty nor less than ten days before the date
of such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
Section 8.6. Registered Stockholders. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
ARTICLE 9
AFFILIATED TRANSACTIONS
Section 9.1. Validity. Except as otherwise provided for in the
certificate of incorporation and except as otherwise provided in this Bylaw, if
Section 9.2 is satisfied, no contract or transaction between the corporation and
any of its directors, officers or security holders, or any corporation,
partnership, association or other organization in which any of such directors,
officers or security holders are directly or indirectly financially interested,
shall be void or voidable solely because of this relationship, or solely because
of the presence of the director, officer or security holder at the meeting
authorizing the contract or transaction, or solely because of his or their
participation in the authorization of such contract or transaction or vote at
the meeting therefor, whether or not such participation or vote was necessary
for the authorization of such contract or transaction.
CORPDAL:53745.1 29976-00001
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<PAGE>
Section 9.2. Disclosure, Approval; Fairness. Section 9.1 shall
apply only if:
(a) the material facts as to the relationship or interest and
as to the contract or transaction are disclosed or are known:
(i) to the board of directors (or committee thereof)
and it nevertheless in good faith authorizes or ratifies the
contract or transaction by a majority of the directors
present, each such interested director to be counted in
determining whether a quorum is present but not in calculating
the majority necessary to carry the vote; or
(ii) to the stockholders and they nevertheless
authorize or ratify the contract or transaction by a majority
of the shares present at a meeting considering such contract
or transaction, each such interested person (stockholder) to
be counted in determining whether a quorum is present and for
voting purposes; or (b) the contract or transaction is fair to
the corporation as of the time it is authorized or ratified by
the board of directors (or committee thereof) or the
stockholders.
Section 9.3. Nonexclusive. This provision shall not be construed
to invalidate a contract or transaction which would be valid in the absence of
this provision.
ARTICLE 10
GENERAL PROVISIONS
Section 10.1. Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation.
CORPDAL:53745.1 29976-00001
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<PAGE>
Section 10.2. Reserves. Before payment of any dividend, there may be
set aside out of any funds of the corporation available for dividends such sum
or sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the directors shall think conducive to the interest of
the corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 10.3. Annual Statement. The board of directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the corporation.
Section 10.4. Checks. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
Section 10.5. Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
Section 10.6. Seal. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words "Corporate
Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE 11
AMENDMENTS
Section 11.1. Amendments. These Bylaws may be altered, amended or repealed
or new Bylaws may be adopted by a majority of the entire board of directors, at
any meeting of the board of directors if notice of such alteration, amendment,
repeal or adoption of new Bylaws be
CORPDAL:53745.1 29976-00001
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<PAGE>
contained in the notice of such meeting. The stockholders of the corporation
shall have the power to adopt, amend or repeal any provisions of the Bylaws only
to the extent and in the manner provided in the certificate of incorporation of
the corporation.
CORPDAL:53745.1 29976-00001
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<PAGE>
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