SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest of Event Reported): April 8, 1998
SYNETIC, INC.
(Exact name of Registrant as specified in its charter)
Delaware 0-17822 22-2975182
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
669 River Drive, River Drive Center II,
Elmwood Park, NJ 07407
(Address of principal executive offices) (Zip Code)
Registrants telephone number, including area code: (201) 703-3400
Exhibit Index on Page 3
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Item 5. Other Events.
On April 8, 1998, Synetic, Inc., a Delaware corporation (the
"Company"), filed an Amended and Restated Certificate of Incorporation as a
result of the affirmative vote of stockholders at the Annual Meeting of
Stockholders of the Company held on March 25, 1998 approving certain amendments
to the Company's certificate of incorporation. A copy of the Amended and
Restated Certificate of Incorporation is attached as an exhibit hereto.
In connection with such amendments, the Company has also made
certain changes to its By-Laws, and a copy of those amended By-Laws is also
attached as an exhibit hereto.
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EXHIBIT INDEX
Exhibit
No. Description
- ------- ------------
3.1 Amended and Restated Certificate of Incorporation
of Synetic, Inc.
3.2 By-Laws of Synetic, Inc.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SYNETIC, INC.
Date: April 8, 1998 By: /s/ Charles A. Mele
------------------------------------------
Name: Charles A. Mele
Title: Vice President and
General Counsel
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SYNETIC, INC.
SYNETIC, INC., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is SYNETIC, INC. The date of
filing of its original Certificate of Incorporation with the Secretary
of State was May 17, 1989.
2. This Amended and Restated Certificate of Incorporation
restates and integrates and further amends the Certificate of
Incorporation of this corporation by deleting the first sentence of
Article Four, paragraph (c) of Article Four, Article Six, Article Ten
and Article Twelve and by substituting in lieu thereof new provisions
for each deleted provision as set forth below.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended hereby to read as herein set
forth in full:
ARTICLE ONE
The name of this Corporation (hereinafter called the "Corporation") is
SYNETIC, INC.
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ARTICLE TWO
The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is 1209 Orange
Street, City of Wilmington, County of New Castle; and the name of the registered
agent of the Corporation in the State of Delaware at such address is The
Corporation Trust Company.
ARTICLE THREE
The nature of the business and of the purposes to be conducted
and promoted by the Corporation are to conduct any lawful business, to promote
any lawful purpose and to engage in any lawful act or activity for which a
corporation may be organized under the General Corporation Law of the State of
Delaware.
ARTICLE FOUR
The Corporation shall have authority, to be exercised by the
Board of Directors, to issue a total of 110,000,000 shares consisting of
100,000,000 shares of common voting stock of the par value of $0.01 per share
(the "Common Stock") and 10,000,000 shares of preferred stock of the par value
of $0.01 per share (the "Preferred Stock"). Shares of the Preferred Stock shall
be designated as the Board of Directors may determine and may be issued in
series by the Board of Directors as hereinafter provided in paragraph (d) below.
The relative rights and preferences of the shares of capital stock of the
Corporation shall be as follows:
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(a) Except as set forth in paragraph (c) below covering
elections of directors, each holder of Common Stock shall at every
meeting of stockholders of the Corporation be entitled to one vote in
person or by proxy for each share of Common Stock held by such holder
and each holder of Preferred Stock with voting rights shall be entitled
to such voting rights as specified pursuant to paragraph (d)(vii),
below.
(b) Subject to the rights, if any, of the holders of the
Preferred Stock, or any series thereof, the holders of the Common Stock
are entitled to the entire voting power, all dividends declared and
paid by the Corporation and all assets of the Corporation in the event
of any liquidation, dissolution, or winding up of the Corporation.
(c) At each election for directors, each holder of Common
Stock entitled to vote at such election shall be entitled to one vote
in person or by proxy for each share of stock held by such holder.
(d) The Preferred Stock may be divided into and issued from
time to time in one or more series. All shares of the Preferred Stock
shall be of equal rank and shall be identical, except with respect to
the particulars that may be fixed by the Board of Directors as
hereinafter provided pursuant to authority that is hereby expressly
vested in the Board of Directors; provided, however, that each share of
a given series of the Preferred Stock shall be identical in all
respects with the other shares of such series.
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Before any shares of the Preferred Stock of any particular series shall
be issued, the Board of Directors shall fix and determine, in the
manner provided by law, the following particulars with respect to the
share of such series:
(i) the distinctive designation of such series and
the number of shares of Preferred Stock that shall constitute
such series, which number may be increased (except where
otherwise provided by the Board of Directors in creating such
series) or decreased (but not below the number of shares of
such series then issued) from time to time by the Board of
Directors by resolution;
(ii) the dividend or rate of divided payable with
respect to shares of Preferred Stock of such series, the time
of payment of any dividend, whether dividends shall be
cumulative and, if so, the conditions under which and the date
from which dividends shall be accumulated;
(iii) the redemption provisions applicable to the
shares of Preferred Stock of such series, if any, and if
applicable, the time or times when, the price or prices at
which, and the other terms and conditions under which the
shares of Preferred Stock of such series shall be redeemable;
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(iv) the amount payable on shares of Preferred Stock
of such series in the event of any voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the
Corporation, which shall not be deemed to include the merger
or consolidation for the Corporation or a sale, lease or
conveyance of all or part of the assets of the Corporation;
(v) the purchase, retirement or sinking fund
provisions, if any, for the redemption or purchase of shares
of Preferred Stock of such series;
(vi) the rights, if any, of the holders of shares of
Preferred Stock of such series to convert such shares into or
exchange such shares for shares of the Common Stock or shares
of any other series of the Preferred Stock and the terms and
conditions of such conversion or exchange;
(vii) the extent of voting rights of the shares of
Preferred Stock of such series or the absence thereof; and
(viii) such other terms, limitations, rights and
preferences, if any, of such series as the Board of Directors
may lawfully fix under the laws of the State of Delaware as in
effect at the time of creation of such series.
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ARTICLE FIVE
To the fullest extent permitted by law, so long as the
Corporation is controlled by, or under common control with, Medco Containment
Services, Inc., a Delaware corporation ("Medco," which term shall include any
successor to Medco), (i) directors or officers of the Corporation who are also
directors or officers of Medco shall be obligated to present a potential
acquisition which may be made by either the Corporation or Medco of a business
engaged in the design, manufacture or distribution of porous materials to the
Corporation and may present such acquisition to Medco only if such acquisition
has been rejected by the Board of Directors of the Corporation, (ii) directors
or officers of the Corporation who are also directors or officers of Medco shall
have no obligation to present a potential acquisition which may be made by
either the Corporation or Medco of a business engaged in medical cost
containment or health care claims processing to the Corporation unless the Board
of Directors of Medco has rejected such acquisition or has determined that such
acquisition should be presented to the Corporation for consideration and (iii)
directors or officers of the Corporation who are also directors or officers of
Medco shall have no obligation to present a potential acquisition which may be
made by either the Corporation or Medco of a business which is not engaged in
the design, manufacture or distribution of porous materials to the Corporation.
For purposes of this Article Five, Medco shall include all subsidiary
corporations and other entities in which Medco owns (directly or indirectly)
more than 50% of the outstanding voting capital stock or voting power.
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ARTICLE SIX
The number of directors which shall constitute the whole Board
of Directors of the Corporation shall be determined in the By-Laws as provided
therein. The directors of the Corporation shall be elected by the stockholders
entitled to vote thereon at each annual meeting of stockholders and shall hold
office until the next annual meeting of stockholders and until their respective
successors shall have been elected and qualified, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. The
term of office of each director in office at the time this amendment to Article
Six of the Certificate of Incorporation of the Corporation becomes effective
shall expire at the time of the opening of the polls for the election of
directors at the next annual meeting of stockholders of the Corporation held
after the time this amendment to Article Six becomes effective.
ARTICLE SEVEN
The power to fill vacancies on the Board of Directors (whether
by reason of resignation, removal with or without cause, the creation of new
directorships or otherwise) shall be vested in the Board of Directors, except as
provided below, and vacancies may be filled by a majority of the directors then
in office, although less than a quorum, unless all directorships are vacant, in
which case the stockholders shall fill the then existing vacancies. Any director
chosen by the Board of Directors to fill a vacancy shall hold office only until
the next election of directors by stockholders and until that director's
successor shall be elected and shall have qualified. In the case of removal of a
director by the affirmative vote of the stockholders
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pursuant to Article Ten of this Certificate of Incorporation, the vacancy
created by such removal shall be filled by the affirmative vote of the holders
of record of a majority of the outstanding shares of stock entitled thereon.
Should the stockholders entitled to vote thereon fail to elect a director to
fill a vacancy caused by the removal of a director by the affirmative vote of
the stockholders pursuant to Article Ten of this Certificate of Incorporation,
such vacancy shall be filled by the Board of Directors as provided herein.
ARTICLE EIGHT
Special meetings of the stockholders of the Corporation for
any purpose may be called at any time by the Board of Directors, or by a
committee of the Board of Directors which has been duly designated by the Board
of Directors and whose powers and authority, as provided in a resolution of the
Board of Directors or in the By-Laws of the Corporation, include the power to
call such meetings. Special meetings may also be called upon request, in
writing, of the holders of record of ten percent of the outstanding shares of
stock entitled to vote at such meeting.
ARTICLE NINE
The original By-Laws of the Corporation shall be adopted by
the Incorporator. Thereafter, in furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
repeal, alter, amend and rescind the By-Laws of the
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Corporation, provided that the Board of Directors may not amend the By-Laws to
increase the number of directors above twelve.
ARTICLE TEN
The election of directors need not be by written ballot unless
required by the By-Laws of the Corporation. Any director may be removed, either
for or without cause, at any time, by the affirmative vote of the holders of
record of a majority of the outstanding shares of stock entitled to vote, and
the vacancy in the Board of Directors caused by any such removal shall be filled
as provided herein; provided that where the holders of any class or series of
Preferred Stock are entitled to elect one or more directors the provisions of
the Certificate of Designation of such class or series of Preferred Stock shall
apply, in respect of removal, with or without cause, of a director or directors
so elected.
ARTICLE ELEVEN
The Corporation may indemnify, to the fullest extent permitted
by the General Corporation Law of the State of Delaware and as provided in the
By-Laws of the Corporation, any and all persons whom it shall have the power to
indemnify from and against any and all expenses, liabilities or other matters.
ARTICLE TWELVE
The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation or in the
By-Laws, in the manner now or hereafter
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prescribed by statute, and all rights conferred on stockholders herein are
granted subject to this reservation.
ARTICLE THIRTEEN
No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty by such director as a director; provided, however, that this Article
Thirteen shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of Title 8 of
the Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit. If the Delaware General
Corporation Law is amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of director of
the Corporation shall be eliminated or limited to the fullest extent permitted
by the Delaware General Corporation Law, as so amended. No amendment to or
repeal of this Article Thirteen shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring at the time of or
prior to such amendment or repeal.
4. This amendment to the Certificate of Incorporation was duly adopted
in accordance with the provisions of Section 242 and Section 245 of the
General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, said SYNETIC, INC. has caused this Certificate to
be signed by Charles A. Mele, its Executive Vice President-General Counsel, on
this 6th day of April, 1998.
SYNETIC, INC.
By /s/Charles A. Mele
---------------------
Executive Vice President-General
Counsel
BY-LAWS
OF
SYNETIC, INC.
SECTION 1
Stockholders' Meetings
Section 1.1 Annual Meetings. An annual meeting of stockholders shall be
held for the purpose of electing directors and transacting such other business
as may properly come before the meeting. [amended 3/25/98]
Section 1.2 Special Meetings. Special meetings of stockholders for any
purpose or purposes may be called at any time by the Chief Executive Officer of
the Corporation or a majority of the members of the Board of Directors of the
Corporation (the "Board"), or by a committee of the Board which has been duly
designated by the Board and whose powers and authority, as provided in a
resolution of the Board and in these By-Laws, include the power to call such
meetings. Special meetings shall be held solely for the purpose or purposes
specified in the notice of the meeting. [amended 3/25/98]
Section 1.3 Time and Place of Meetings. Each meeting of stockholders
shall be held on such date, at such hour, and at such place, either within or
without the State of Delaware, as fixed by the Board from time to time or in the
notice of the meeting or, in the case of an adjourned meeting, as announced at
the meeting at which the adjournment
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is taken. [amended 3/25/98]
Section 1.4 Notice of Meetings; Adjournments. A written notice of each
meeting of stockholders, stating the place, date, and hour of the meeting and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called, shall be given either personally or by mail to each stockholder
entitled to vote at the meeting. Unless otherwise provided by statute, the
notice shall be given not less than ten nor more than sixty days before the date
of the meeting and, if mailed, shall be deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on the
records of the Corporation. No notice need be given to any person with whom
communication is unlawful, nor shall there be any duty to apply for any permit
or license to given notice to any such person. When any meeting is convened, the
presiding officer, if directed by the Board, may adjourn the meeting if (a) no
quorum is present for the transaction of business or (b) the Board determines
that adjournment is necessary or appropriate in order to enable the stockholders
(i) to consider fully information that the Board determines has not been made
sufficiently or timely available to stockholders or (ii) otherwise to exercise
effectively their voting rights. If the time and place of an adjourned meeting
of stockholders are announced at the meeting at which the adjournment is taken,
no notice need be given of the adjourned meeting unless that adjournment is for
more than 30 days or unless, after the adjournment, a new record date is fixed
for the adjourned meeting. At the adjourned meeting, any business may be
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transacted that could have been transacted at the original meeting. [amended
3/25/98]
Section 1.5 Waiver of Notice. Anything herein to the contrary
notwithstanding, notice of any meeting of stockholders need not be given to any
stockholder who in person or by proxy shall have waived in writing notice of the
meeting, either before or after such meeting, or who shall attend the meeting in
person or by proxy, unless he attends for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
Section 1.6 Quorum and Manner of Acting. Subject to the provisions of
these By-Laws, the Certificate of Incorporation and any statute as to the vote
that is required for a specified action, the presence in person or by proxy of
the holders of a majority of the outstanding shares of the Corporation entitled
to vote at any meeting of stockholders shall constitute a quorum for the
transaction of business, and the vote in person or by proxy of the holders of a
majority of the shares constituting such quorum shall be binding on all
stockholders of the Corporation. A majority of the shares present in person or
by proxy and entitled to vote may, regardless of whether or not they constitute
a quorum, adjourn the meeting to another time and place. Any business which
might have been transacted at the original meeting may be transacted at any
adjourned meeting at which a quorum is present.
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Section 1.7 Voting.
1.7.1 Stockholders shall be entitled to vote at all elections of
directors to the extent provided in or pursuant to the Certificate of
Incorporation. Stockholders may vote by proxy but no proxy shall be voted or
acted upon after three years from its date, unless the proxy provides for a
longer period.
1.7.2 Unless otherwise provided in any statute, the Certificate of
Incorporation or these By-Laws, any action which may or is required to be taken
at any annual or special meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if a consent in writing setting forth
the action so taken shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted.
Section 1.8 Judges of Election. The votes at each meeting of
stockholders shall be supervised by not less than two judges who shall decide
all questions respecting the qualification of voters, the validity of the
proxies and the acceptance or rejection of votes. The judges shall be appointed
by the Board but if, for any reason, there are less than two judges present and
acting at any meeting, the chairman of the meeting shall appoint an
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additional judge or judges so that there shall always be at least two judges to
act at the meeting.
Section 1.9 List of Stockholders. A complete list of the stockholders
entitled to vote at each meeting of stockholders, arranged in alphabetical
order, and showing the address and number of shares registered in the name of
each stockholder, shall be prepared and made available for examination during
regular business hours by any stockholder for any purpose germane to the
meeting. The list shall be available for such examination at the place where the
meeting is to be held for a period of not less than ten days prior to the
meeting and during the whole time of the meeting.
Section 1.10 Advance Notice of Business to Be Transacted at Annual
Meetings.
1.10.1 To be properly brought before the annual meeting of
stockholders, business must be either (1) specified in the notice of the meeting
(or any supplement thereto) given by or at the direction of the Board (or any
duly authorized committee thereof), (2) otherwise properly brought before the
meeting by or at the direction of the Board (or any duly authorized committee
thereof) or (3) otherwise properly brought before the meeting by any stockholder
of the Corporation (a) who is a stockholder of record on the date of the giving
of the notice provided for in this Section 1.10 and on the record date for the
determination of stockholders entitled to vote at such meeting and (b) who
complies with
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the notice procedures set forth in this Section 1.10. In addition to any other
applicable requirements, including but not limited to the requirements, if
applicable, of Rule 14a-8 promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), for
business to be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation. Notwithstanding anything in these Amended and
Restated By-Laws to the contrary, no business shall be conducted at the annual
meeting of stockholders except business brought before such meeting in
accordance with the procedures set forth in this Section 1.10; provided,
however, that, once business has been properly brought before such meeting in
accordance with such procedures, nothing in this Section 1.10 shall be deemed to
preclude discussion by any stockholder of any such business. If the chairman of
such meeting determines that business was not properly brought before the
meeting in accordance with the foregoing procedures, the chairman shall declare
to the meeting that the business was not properly brought before the meeting and
such business shall not be transacted.
1.10.2 To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation, not less than 60 days nor more than 90 days prior to the
anniversary date of the immediately preceding annual meeting stockholders;
provided, however, that in the event that the annual meeting is
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called for a date that is not within 30 days before or after such anniversary
date, notice by the stockholder in order to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of the annual meeting is mailed or such public
disclosure of the date of the annual meeting is made, whichever first occurs.
1.10.3 To be in proper written form, a stockholder's notice to
the Secretary must set forth as to each matter such stockholder proposes to
bring before the annual meeting (1) a brief description of the business desired
to be brought before the meeting and the reasons for conducting such business at
the meeting, (2) the name and record address of such stockholder, (3) the class
or series and number of shares of capital stock of the Corporation which are
owned beneficially or of record by such stockholder, together with evidence
reasonably satisfactory to the Secretary of such beneficial ownership, (4) a
description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business and (5) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting. [amended 3/25/98]
SECTION 2
BOARD OF DIRECTORS
Section 2.1 Number, Term, Vacancies.
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2.1.1 The number of directors which shall constitute the whole Board of
the Corporation shall be established from time to time by resolution of the
Board of Directors (subject to the authority of the Board of Directors to
increase or decrease the number of directors to the extent permitted by law).
The directors of the Corporation shall be elected by the stockholders at each
annual meeting of the stockholders and shall hold office until the next annual
meeting of stockholders and until their respective successors have been elected
and qualified, subject, however, to prior death, resignation, disqualification
or removal from office. [amended 3/25/98]
2.1.2 The power to fill vacancies on the Board of Directors (whether by
reason of resignation, removal with our without cause, the creation of new
directorships or otherwise) shall be vested in the Board of Directors, except as
provided below, and vacancies may be filled by a majority of the directors then
in office, although less than a quorum, unless all directorships are vacant, in
which case the stockholders shall fill the then existing vacancies. Any director
chosen by the Board of Directors to fill a vacancy shall hold office only until
the next election of directors by stockholders and until that director's
successor shall be elected and shall have qualified. In the case of removal of a
director by the affirmative vote of holders of record of a majority of the
outstanding shares of stock entitled to vote pursuant to Article Ten of the
Certificate of Incorporation, the vacancy created by such removal shall be
filled by the affirmative vote of the holders of record of a majority of the
outstanding shares of stock entitled to vote thereon. Should the stockholders
entitled to vote thereon fail to elect a director to fill a vacancy caused by
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the removal of a director by the affirmative vote of the stockholders pursuant
to Article Ten of the Certificate of Incorporation, such vacancy shall be filled
by the Board of Directors as provided herein and in the Certificate of
Incorporation. [amended 3/25/98]
Section 2.2 Election and Notice of Nominations
2.2.1 The directors shall be elected annually by the stockholders at
the annual meeting of stockholders by written ballot. At each election, the
nominees receiving the greatest number of votes cast shall be the directors. A
nomination for director shall be accepted, and the votes cast for a nominee
shall be counted by, the judges of election only if the Secretary of the
Corporation has, at least three days prior to the meeting, been advised by the
nominee that he consents to being a nominee and if elected, intends to serve as
a director.
2.2.2 Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors of the Corporation,
except as may be otherwise provided in the Certificate of Incorporation with
respect to the right of holders of preferred stock of the Corporation to
nominate and elect a specified number of directors in certain circumstances.
Nominations of persons for election to the Board may be made at any annual
meeting of stockholders, or at any special meeting of stockholders called for
the purpose of electing directors, (1) by or at the direction of the Board (or
any duly authorized committee thereof) or (2) by any stockholder of the
Corporation (a) who
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is a stockholder of record on the date of the giving of the notice provided for
in this Section 2.2 and on the record date of the determination of stockholders
entitled to vote at such meeting and on the record date for the determination of
stockholders entitled to vote at such meeting and (b) who complies with the
notice procedures set forth in this Section 2.2. In addition to any other
applicable requirements, for a nomination to be made by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation. No person shall be eligible for election as a
director of the Corporation unless nominated in accordance with the procedures
set forth in this Section 2.2.
2.2.3 To be timely, a stockholders' notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation (1) in the case of an annual meeting, not less than 60 days nor more
than 90 days prior to the anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within 30 days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth day following the day
on which such notice of the date of the annual meeting is mailed or such public
disclosure of the date of the annual meeting is made, whichever first occurs, or
(2) in the case of a special meeting of stockholders called for the purpose of
electing directors, not later than the close of business on the tenth day
following the day on which notice of the date of the special meeting is mailed
or public disclosure of the date of the special meeting is made,
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whichever first occurs.
2.2.4 To be in proper written form, a stockholder's notice to the
Secretary must set forth (1) as to each person whom the stockholder proposes to
nominate for election as a director, (a) the name, age, business address and
residence address of the person, (b) the principal occupation or employment of
the person, (c) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person and (d) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder; and (2) as to
the stockholder giving the notice, (a) the name and record address of such
stockholder, (b) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such stockholder,
together with evidence reasonably satisfactory to the Secretary of such
beneficial ownership, (c) a description of all arrangements or understandings
between such stockholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to be
made by such stockholder, (d) a representation that such stockholder intends to
appear in person or by proxy at the meeting to nominate the persons named in its
notice and (e) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations or proxies for election of directors
pursuant to
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Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve as a director if
elected.
2.2.5 The Chairman of the meeting may, if the facts warrant, determine,
and declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded. [amended 3/25/98]
Section 2.3 Organization Meetings. As promptly as practicable after
each annual meeting of stockholders, an organization meeting of the Board shall
be held for the purpose of organization, election for officers and the
transaction of any other business.
Section 2.4 Stated Meetings. The Board may provide for stated meetings
of the Board.
Section 2.5 Special Meetings. Special meetings of the Board may be
called from time to time by any three directors, by the Chairman of the Board,
by the chief executive officer or by the chief financial officer of the
Corporation.
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Section 2.6 Business of Meetings. Except as otherwise expressly
provided in these By-Laws, any and all business may be transacted at any meeting
of the Board; provided, however, that the business transacted at a special
meeting shall be limited to the purpose or purposes specified in the notice of
that meeting.
Section 2.7 Time and Place of Meetings. Subject to the provisions of
Section 2.3, each meeting of the Board shall be held on such date, at such hour
and in such place as fixed by the Board or in the notice of the meeting or, in
the case of an adjourned meeting, as announced at the meeting at which the
adjournment is taken.
Section 2.8 Notice of Meetings. No notice need be given of any
organization or stated meeting of the Board for which the date, hour and place
have been fixed by the Board. Notice of the date, hour and place of all other
meetings, and of all special meetings, shall be given to each director
personally, or by telephone, telegraph, facsimile transmission or similar
electronic transmission or by mail. If by mail, the notice shall be deposited in
the United States mail, postage prepaid, addressed to the director at his
residence or usual place of business as the same appears on the books of the
Corporation not later than four days before the meeting. If given by telegraph,
facsimile transmission or similar electronic transmission the notice shall be
directed to the director at his residence or usual place of business as the same
appears on the books of the Corporation not later than at any time during the
day before the meeting. If given personally or by
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telephone, the notice shall be given not later than, and at any time during the
day before, the meeting. [amended 3/25/98]
Section 2.9 Waiver of Notice. Anything herein to the contrary
notwithstanding, notice of any meeting of the Board need not be given to any
director who shall have waived in writing notice of the meeting, either before
or after the meeting, or who shall attend such meeting, unless he attends for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
Section 2.10 Attendance by Telephone. Directors may participate in
meetings of the Board by means of conference telephone or similar communications
equipment by which all directors participating in the meeting can hear one
another and participate, and such participation shall constitute presence in
person at the meeting.
Section 2.11 Quorum and Manner of Acting. A majority of the total
number of directors at the time provided for pursuant to Section 2.1 shall
constitute a quorum for the transaction of business at any meeting of the Board
and, except as otherwise provided in these By-Laws, in the Certificate of
Incorporation or by statute, the act of a majority of the directors present at
any meeting at which a
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quorum is present shall be the act of the Board. A majority of the directors
present at any meeting, regardless of whether or not they constitute a quorum,
may adjourn the meeting to another time and place. Any business which might have
been transacted at the original meeting may be transacted at any adjourned
meeting at which a quorum is present.
Section 2.12 Action Without a Meeting. Any action which could be taken
at a meeting of the Board may be taken without a meeting if all the directors
consent to the action in a writing filed with the minutes of the Board.
Section 2.13 Compensation of Directors. Each director of the
Corporation who is not a salaried officer or employee of the Corporation, or of
a subsidiary of the Corporation, may receive compensation for serving as a
director and for serving as a member of any Committee of the Board, and may also
receive fees for attendance at any meetings of the Board or of any Committee of
the Board, and the Board may from time to time fix the amount and method of
payment of such compensation and fees. The Board may also, by vote of a majority
of disinterested directors, provide for and pay fair compensation to directors
rendering services to the Corporation not ordinarily rendered by directors as
such.
Section 2.14 Resignation of Directors. Any director may resign at any
time
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upon written notice to the Corporation. The resignation shall become effective
at the time specified in the notice and, unless otherwise provided in the
notice, acceptance of the resignation shall not be necessary to make it
effective.
Section 2.15 Removal of Directors. Any director may be removed, either
for or without cause, at any time, by the affirmative vote of the holders of
record of a majority of the outstanding shares of stock entitled to vote, and
the vacancy in the Board caused by such removal shall be filled as provided in
the Certificate of Incorporation; provided that where the holders of any class
or series of Preferred Stock are entitled to elect one or more directors the
provisions of the Certificate of Designation of such class or series of
Preferred Stock shall apply, in respect of removal, with or without cause, of a
director or directors so elected. [amended 3/25/98]
SECTION 3
COMMITTEES OF THE BOARD OF DIRECTORS
Section 3.1 Executive Committee. By resolution adopted by an
affirmative vote of the majority of the whole Board, the Board may appoint an
Executive Committee consisting of the chief executive officer of the
Corporation, an ex officio as a non-voting member if he is not otherwise a
director, and two or more other directors and, if deemed desirable, one or more
directors as alternate members who may replace any absentee or disqualified
member at any meeting of the Executive Committee. If so appointed, the
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Executive Committee shall, when the Board is not in session, have all the power
and authority of the Board in the management of the business and affairs of the
Corporation not reserved to the Board by Section 3.3. The Executive Committee
shall keep a record of its acts and proceedings and shall report the same from
time to time to the Board.
Section 3.2 Other Committees. By resolution adopted by an affirmative
vote of the majority of the whole Board, the Board may from time to time appoint
such other Committees of the Board, consisting of one or more directors and, if
deemed desirable, one or more directors who shall act as alternate members and
who may replace any absentee or disqualified member at any meeting of the
Committee, and may delegate to each such Committee any of the powers and
authority of the Board in the management of the business and affairs of the
Corporation not reserved to the Board pursuant to Section 3.3. Each such
Committee shall keep a record of its acts and proceedings.
Section 3.3 Powers Reserved to the Board. No Committee of the Board
shall take any action to amend the Certificate of Incorporation or these
By-Laws, adopt any agreement to merge or consolidate the Corporation, declare
any dividend or recommend to the stockholders a sale, lease or exchange of all
or substantially all of the assets and property of the Corporation, a
dissolution of the Corporation or a revocation of a dissolution of the
Corporation; nor shall any Committee of the Board take any action which is
required in these By-Laws, in the Certificate of Incorporation or by statute to
be
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taken by a vote of a specified proportion of the whole Board.
Section 3.4 Election of Committee Members; Vacancies. So far as
practicable, members of Committees of the Board and their alternates (if any)
shall be appointed at each organization meeting of the Board and, unless sooner
discharged by an affirmative vote of the majority of the whole Board, shall hold
office until the next organization meeting of the Board and until their
respective successors are appointed. In the absence or disqualification of any
member of a Committee of the Board, the member or members (including alternates)
present at any meeting of the Committee and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
director to act at the meeting in place of any absent or disqualified member.
Vacancies in Committees of the Board created by death, resignation or removal
may be filled by an affirmative vote of a majority of the whole Board.
Section 3.5 Meetings. Each Committee of the Board may provide for
stated meetings of such Committee. Special meetings of each Committee may be
called by any two members of the Committee. The provisions of Section 2
regarding the business, time and place, notice and waivers of notice of
meetings, attendance at meetings and action without a meeting shall apply to
each Committee of the Board, except that the references in such provisions to
the directors and the Board shall be deemed respectively to be
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references to the members of the Committees and to the Committee.
Section 3.6 Quorum and Manner of Acting. A majority of the members of
any Committee of the Board shall constitute a quorum for the transaction of
business at meetings of the Committee, and the act of a majority of the members
present at any meeting at which a quorum is present shall be the act of the
Committee. A majority of the members present at any meeting, regardless of
whether or not they constitute a quorum, may adjourn the meeting to another time
or place. Any business which might have been transacted at the original meeting
may be transacted at any adjourned meeting at which a quorum is present.
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SECTION 4
Officers
Section 4.1 Election and Appointment. The elected officers of the
Corporation shall consist of a President, one or more Vice Presidents, a
Treasurer, a Secretary and such other elected officers as shall from time to
time be designated by the Board. The Board shall designate from among such
elected officers a chief executive officer and a chief financial officer of the
Corporation and may from time to time make, or provide for, other designations
it deems appropriate. The Board may also appoint, or provide for the appointment
of, such other officers and agents as may from time to time appear necessary or
advisable in the conduct of the affairs of the Corporation. Any number of
offices may be held by the same person, except no person may at the same time be
both the chief executive officer and the chief financial officer.
Section 4.2 Duties of Chief Executive Officer. In the absence of the
Chairman, the chief executive officer of the Corporation shall preside at all
meetings of stockholders and at all meetings of the Board and the Executive
Committee and, except to the extent otherwise provided in these By-Laws or by
the Board, shall have general authority to execute any and all documents in the
name of the Corporation and to supervise and control all of the business and
affairs of the Corporation. In the absence of the chief executive officer, his
duties shall be performed and his power may be executed by the chief financial
officer or by such other officer as shall be designated either by the
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chief executive officer in writing or (failing such designation) by the
Executive Committee or the Board.
Section 4.3 Duties of Other Officers. The other officers of the
Corporation shall have such powers and duties not inconsistent with these
By-Laws as may from time to time be conferred upon them in or pursuant to
resolutions of the Board, and shall have such additional powers and duties not
inconsistent with such resolutions as may from time to time be assigned to them
by any competent superior officer. The Board shall assign to one or more of the
officers of the Corporation the duty to record the proceedings of the meetings
of the stockholders and the Board in a book to be kept for that purpose.
Section 4.4 Terms of Office and Vacancy. So far as practicable, the
elected officers shall be elected at each organization meeting of the Board, and
shall hold office until the next organization meeting of the Board and until
their respective successors are elected. If any vacancy should occur in any
office, the Board may elect a successor for the remainder if the term of that
office. Officers shall hold office at the pleasure of the Board. Any officer may
resign by written notice to the Corporation.
Section 4.5 Removal of Elected Officers. Elected officers may be
removed at any time, either for or without cause, by the affirmative vote of a
majority Board at a meeting called for that purpose.
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Section 4.6 Compensation of Elected Officers. The compensation of all
elected officers of the Corporation shall be fixed from time to time by the
Board.
SECTION 5
Shares and Transfers of Shares
Section 5.1 Certificates. Every stockholder shall be entitled to a
certificate signed by the Chairman or the President or a Vice President and by
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary, certifying the class and number of shares owned by him in the
Corporation; provided, that, where such certificate is countersigned by a
Transfer Agent or Registrar, the signature of any such Chairman, President, Vice
President, Treasurer, Assistant Treasurer, Secretary, or Assistant Secretary may
be facsimile. In case any officer or officers who shall have signed or whose
facsimile signature or signatures shall have been used on any such certificate
or certificates shall cease to be such officer or officers, whether because of
death, resignation, or otherwise, before such certificate or certificates shall
have been issued by the Corporation, such certificate or certificates may be
issued by the Corporation with the same effect as if he or they were such
officer or officers at the date of issue.
Section 5.2 Transfer Agents and Registrars. The Board may, in its
discretion, appoint one or more responsible banks or trust companies from time
to time,
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to act as Transfer Agents and Registrars of shares of the Corporation; and, when
such appointments shall have been made, no certificate for shares of the
Corporation shall be valid until countersigned by one of such Transfer Agents
and registered by one of such Registrars.
Section 5.3 Transfer of Shares. Shares of the Corporation may be
transferred by delivery of the certificates therefor, accompanied either by an
assignment in writing on the back of the certificates or by written power of
attorney to sell, assign, and transfer the same, signed by the record holder
thereof; but no transfer shall affect the right of the Corporation to pay any
dividend upon the shares to the holder of record thereof, or to treat the holder
of record as the holder in fact thereof for all purposes, and no transfer shall
be valid, except between the parties thereto, until such transfer shall have
been made upon the books of the Corporation.
Section 5.4 Lost Certificates. In case any certificate for shares of
the Corporation shall be lost, stolen, or destroyed, the Board, in its
discretion, or any Transfer Agent thereunto duly authorized by the Board, may
authorize the issuance of a substitute certificate in place of the certificate
so lost, stolen, or destroyed, and may cause such substitute certificate to be
countersigned by the appropriate Transfer Agent (if any) and registered by the
appropriate Registrar (if any); provided that, in each such case, the applicant
for a substitute certificate shall furnish to the Corporation, and to such of
its
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Transfer Agents and Registrars as may require the same, evidence to their
satisfaction, in their discretion, of the loss, theft or destruction of such
certificate and of the ownership thereof, and also such bond, security or
indemnity as may then be required.
Section 5.5 Record Dates. 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 shares
or for the purpose of any other lawful action, the Board may fix, in advance, a
record date which shall be not more than sixty nor less than ten days before the
date of any meeting of stockholders, and not more than sixty days prior to any
other action. In such case, those stockholders, and only those stockholders, who
are stockholders of record on the date fixed by the Board, shall,
notwithstanding any subsequent transfer of shares on the books of the
Corporation, be entitled to notice of and to vote at such meeting of
stockholders, or any adjournment thereof, or entitled to receive payment of such
dividend or other distribution or allotment of rights, or entitled to exercise
rights in respect of any such change, conversion or exchange of shares or to
participate in any such other lawful action.
SECTION 6
Miscellaneous
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Section 6.1 Fiscal Year. The fiscal year of the Corporation shall end
on June 30 of each year.
Section 6.2 Surety Bonds. The Chief Financial Officer, the Treasurer,
each Assistant Treasurer, and such other officers and agents of the Corporation
as the Board may from time to time direct, shall be bonded at the expense of the
Corporation for the faithful performance of their duties in such amounts and by
such survey companies as the Board may from time to time determine.
Section 6.3 Signature of Negotiable Instruments. All bills, notes,
checks or other instruments for the payment of money shall be signed or
countersigned in such manner as from time to time may be prescribed by
resolution of the Board.
Section 6.4 Auditor. The Board shall appoint an Auditor to discharge
the duties provided herein. Among other duties, it shall be the duty of the
Auditor so appointed to make periodic audits of the books and accounts of the
Corporation. After the close of the fiscal year and in accordance with
applicable law, the stockholders shall be furnished with consolidated financial
statements of the Corporation and its consolidated subsidiaries, as at the end
of such fiscal year, duly certified by such Auditor, subject to such notes or
comments as the Auditor shall deem necessary or desirable for the information of
the stockholders.
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Section 6.5 Indemnification of Officers, Directors, Employees, Agents,
and Fiduciaries; Insurance.
a. The Corporation shall indemnify, in accordance with and to the fullest extent
permitted by the laws of the State of Delaware, as in effect at the time of the
adoption of this Section 6.5, or as such laws may be amended from time to time,
to the fullest extent permitted by such laws, any person (and the heirs and
legal representatives of any such person) made or threatened to be made a party
to any threatened, pending, or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that
such person is or was a director, officer, employee, agent or fiduciary of the
Corporation or any constituent absorbed in a consolidation or merger, or serves
as such with another corporation, or with a partnership, joint venture, trust or
other enterprise at the request of the Corporation of any such constituent
corporation.
b. By action of the Board, notwithstanding any interest of the directors in such
action, the Corporation may purchase and maintain insurance in such amounts as
the Board deems appropriate on behalf of any person who is or was a director,
officer, employee, agent, or fiduciary of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee, agent or
fiduciary of another enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation shall have the power to indemnify him against
such liability under the provisions of this Section.
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Section 6.6 Offices. The registered office of the Corporation in the
State of Delaware is to be located at 1209 Orange Street, City of Wilmington,
County of New Castle. The Corporation may have other offices within or without
the State of Delaware.
SECTION 7
By-Law Amendments
Section 7.1 By the Stockholders. These By-laws may be amended by the
stockholders at a meeting called for the purpose in any manner not inconsistent
with any provision of law or the Certificate of Incorporation.
[amended 3/25/98]
Section 7.2 By the Directors. These By-laws may be amended by the
affirmative vote of a majority of the whole Board in any manner not inconsistent
with any provision of law or the Certification of Incorporation.
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