<PAGE> 1
As filed with the Securities and Exchange Commission on July 8, 1997.
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
THERMADYNE HOLDINGS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
DELAWARE 74-2482571
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
RANDALL E. CURRAN
101 SOUTH HANLEY ROAD
101 SOUTH HANLEY ROAD ST. LOUIS, MISSOURI 63105
ST. LOUIS, MISSOURI 63105 (314) 746-2320
(Address, Including Zip Code, of Registrant's (Name, Address, Including Zip Code, and
Principal Executive Offices) Telephone Number, Including Area Code, of
Agent for Service)
</TABLE>
1996 EMPLOYEE STOCK OPTION PLAN
(Full Title of the Plan)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered (1) Registered (1) Per Share (2) Offering Price (2) Registration Fee
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 Par Value 500,000 Shares $30.81 $15,406,250 $4,668.56
=========================================================================================
</TABLE>
(1) Shares of common stock, $.01 par value per share ("Common Stock"), of
Thermadyne Holdings Corporation (the "Registrant") being registered
hereby relate to the 1996 Employee Stock Option Plan. Pursuant to Rule
416(a) promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), there is also being registered an indeterminate
amount of additional shares of Common Stock as may become issuable as a
result of stock splits, stock dividends or similar transactions.
(2) In accordance with section (h)(1) of Rule 457 promulgated under the
Securities Act, calculated on the basis of the average of the high and
low price of the Common Stock as reported on the NASDAQ Stock Market on
July 1, 1997.
================================================================================
<PAGE> 2
DOCUMENTS INCORPORATED BY REFERENCE
The contents of the Registration Statement of Thermadyne Holdings
Corporation (the "Registrant") on Form S-8 filed with the Securities and
Exchange Commission on May 20, 1996 (File No. 333-04083), including the
documents incorporated by reference therein, are incorporated by reference into
this Registration Statement.
AMENDMENT TO 1996 EMPLOYEE STOCK OPTION PLAN
On February 5, 1997, the Board of Directors of the Registrant adopted a
proposal to amend the Registrant's 1996 Employee Stock Option Plan to, among
other things, (i) increase the aggregate number of shares of Common Stock
reserved for issuance thereunder from 300,000 to 800,000, (ii) permit the
granting of "Replacement Options" to optionholders who exercise options using
shares of Common Stock as payment therefor and (iii) provide for certain
administrative changes thereto. The increase in the aggregate number of shares
reserved for issuance under the 1996 Employee Stock Option Plan was approved by
the Registrant's stockholders on April 24, 1997.
EXHIBITS
4.1 Restated Certificate of Incorporation of Thermadyne Holdings
Corporation.*
4.2 Amended and Restated Bylaws of Thermadyne Holdings Corporation.*
4.3 Amendment to the 1996 Employee Stock Option Plan.*
5.1 Opinion of Weil, Gotshal & Manges LLP.*
23.1 Consent of Ernst & Young LLP.*
23.2 Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5.1).
24.1 Power of Attorney (see signature pages of this Registration Statement).
- --------------------
* Filed herewith.
1
<PAGE> 3
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Clayton, State of Missouri, on this
8th day of July, 1997.
THERMADYNE HOLDINGS CORPORATION
By: /s/ JAMES H. TATE
----------------------------------
James H. Tate
Senior Vice President and
Chief Financial Officer
Each person whose signature to this Registration Statement appears below
hereby appoints James H. Tate as his attorney-in-fact to sign on his behalf
individually and in the capacity stated below and to file all post-effective
amendments to this Registration Statement, which amendments may make such
changes in and additions to this Registration Statement as such attorney-in-
fact may deem necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ RANDALL E. CURRAN Chairman of the Board of Directors, July 8, 1997
---------------------------------------------- President and Chief Executive Officer
Randall E. Curran (Principal Executive Officer of the
Registrant)
/s/ JAMES H. TATE Director, Senior Vice President and July 8, 1997
---------------------------------------------- Chief Financial Officer (Principal
James H. Tate Financial and Accounting Officer of the
Registrant)
/s/ RICHARD L. BERGER Director July 8, 1997
----------------------------------------------
Richard L. Berger
/s/ FLETCHER L. BYROM Director July 8, 1997
----------------------------------------------
Fletcher L. Byrom
</TABLE>
2
<PAGE> 4
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ HENRY L. DRUKER Director July 8, 1997
----------------------------------------------
Henry L. Druker
/s/ TALTON R. EMBRY Director July 8, 1997
----------------------------------------------
Talton R. Embry
/s/ CHARLES F. MORAN Director July 8, 1997
----------------------------------------------
Charles F. Moran
</TABLE>
3
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
- -------- -----------
<S> <C>
4.1 Restated Certificate of Incorporation of Thermadyne Holdings
Corporation.
4.2 Amended and Restated Bylaws of Thermadyne Holdings Corporation.
4.3 Amendment to the 1996 Employee Stock Option Plan.
5.1 Opinion of Weil, Gotshal & Manges LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5.1).
24.1 Power of Attorney (see signature pages of this Registration
Statement).
</TABLE>
<PAGE> 1
EXHIBIT 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
TDII COMPANY
Pursuant to Sections 242, 245 and 303
of the Delaware General Corporation Law
TDII Company, a corporation organized and existing under the
General Corporation Law of the State of Delaware, does hereby certify as
follows:
1. The name of the corporation is TDII COMPANY (the
"Corporation").
2. The name under which the Corporation was originally
incorporated is Palco Acquisition Corp. and the date of filing the original
Certificate of Incorporation of the Corporation with the Secretary of State of
Delaware was August 7, 1987.
3. This Restated Certificate of Incorporation amends and
restates the Certificate of Incorporation of the Corporation and was made and
duly adopted in accordance with Sections 242, 245 and 303 of the General
Corporation Law of the State of Delaware. Provision for the making of this
Restated Certificate of Incorporation is contained in an order, entered January
18, 1994, of the United States Bankruptcy Court for the District of Delaware,
having jurisdiction over a proceeding for the reorganization of the Corporation
commenced under Title 11 of the United States Code.
4. The Certificate of Incorporation of the Corporation, as
amended and restated hereby, shall, upon its filing with the Secretary of State
of the State of Delaware, read in its entirety as follows:
FIRST: The name of the corporation is Thermadyne Holdings
Corporation.
SECOND: The registered office of the corporation in the State of
Delaware is located at Corporation Trust Center, 1209 Orange Street in the City
of Wilmington, Delaware 19801, County of New Castle. The name of the
registered agent of the corporation at such address is The Corporation Trust
Company.
<PAGE> 2
THIRD: The purpose of the corporation and the nature and objects
of the business to be transacted, promoted, and carried on are to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 25,000,000 shares of Common Stock,
par value $0.01 per share ("Common Stock"). No non-voting equity securities of
the Corporation shall be issued by the Corporation.
Except as otherwise required by law, each holder of Common Stock
shall be entitled to one vote for each share of common stock standing in such
holder's name on the records of the Corporation on each matter submitted to a
vote of the stockholders.
The holders of the Common Stock shall be entitled to receive
when, as, and if declared by the board of directors of the Corporation, out of
funds legally available therefor, dividends payable in cash, stock, or
otherwise.
Upon any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary, and after the holders of any
bonds, debentures, or other obligations of the Corporation shall have been paid
in full the amounts to which they shall be entitled (if any), or a sum
sufficient for such payment in full shall have been set aside, the remaining
net assets of the Corporation shall be distributed pro rata to the holders of
the Common Stock in accordance with their respective rights and interests, to
the exclusion of the holders of any bonds, debentures, or other obligations of
the Corporation.
The Corporation may issue shares of its Common Stock from time to
time for such consideration (in any form, but not less in value than the par
value thereof) as may be fixed by the board of directors of the Corporation,
which is expressly authorized to fix the same in its absolute and uncontrolled
discretion subject to the foregoing conditions. Shares so issued for which the
consideration shall have been paid or delivered to the Corporation shall be
deemed fully paid stock and shall not be liable to any further call or
assessment thereon, and the holders of such shares shall not be liable for any
further payments in respect of such shares. The Corporation shall also have
authority to create and issue rights and options entitling their holders to
purchase or otherwise acquire shares of Common Stock and such rights and
options shall be evidenced by instrument(s) approved by the board of directors
of the Corporation. The board of directors of the Corporation shall be
empowered to set the exercise price, duration, times for exercise, and other
terms of
2
<PAGE> 3
such options or rights; provided, however, that the consideration to be
received (which may be in any form) for any shares of Common Stock subject
thereto shall have a value not less than the par value thereof.
FIFTH: No contract or transaction between the Corporation and
one or more of its directors, officers, or stockholders or between the
Corporation and any person (as used herein "person" means any other
corporation, partnership, association, firm, trust, joint venture, political
subdivision, or instrumentality) or other organization in which one or more of
its directors, officers, or stockholders are directors, officers or
stockholders, or have a financial interest, shall be void or voidable solely
for this reason, or solely because the director or officer is present at or
participates in the meeting of the board or committee which authorizes the
contract or transaction, or solely because his, her, or their votes are counted
for such purpose, if: (i) the material facts as to his or her relationship or
interest and as to the contract or transaction are disclosed or are known to
the board of directors or the committee, and the board of directors or
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or her relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved, or ratified by the board
of directors, a committee thereof (to the extent permitted by applicable law),
or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of directors or
of a committee which authorizes the contract or transaction.
SIXTH: The Corporation shall indemnify any person who was, is,
or is threatened to be made a party to a proceeding (as hereinafter defined) by
reason of the fact that he (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the Delaware General Corporation Law, as the
same exists or may hereafter be amended. Such right shall be a contract right
and shall include the right to be paid by the Corporation expenses incurred in
defending any such proceeding in advance of its final disposition to the
maximum extent permitted under the Delaware General Corporation Law, as the
same exists or may hereafter be amended. If a claim for indemnification or
advancement of expenses hereunder is not paid in full by the Corporation within
60 days after a written claim has been received
3
<PAGE> 4
by the Corporation, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim, and if successful in
whole or in part, the claimant shall also be entitled to be paid the expenses
of prosecuting such claim. It shall be a defense to any such action that such
indemnification or advancement of costs of defense are not permitted under the
Delaware General Corporation Law, but the burden of proving such defense shall
be on the Corporation. Neither the failure of the Corporation (including its
board of directors or any committee thereof, independent legal counsel, or
stockholders) to have its determination prior to the commencement of such
action that indemnification of, or advancement or costs of defense to, the
claimant is permissible in the circumstances nor an actual determination by the
Corporation (including its board of directors or any committee thereof,
independent legal counsel, or stockholders) that such indemnification or
advancement is not permissible shall be a defense to the action or create a
presumption that such indemnification or advancement is not permissible. In
the event or the death of any person having a right of indemnification under
the foregoing provisions, such right shall inure to the benefit of his heirs,
executors, administrators, and personal representatives. The rights conferred
above shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, by-law, resolution of stockholders or
directors, agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent
of the Corporation to the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, arbitrative, or investigative, any appeal in such an action,
suit, or proceeding, and any inquiry or investigation that could lead to such
an action, suit, or proceeding.
SEVENTH: All the powers of the Corporation, insofar as the same
may be lawfully vested by this Certificate of Incorporation in the board of
directors, are hereby conferred upon the board of directors. In furtherance
and not in limitation of that power, the board of directors shall have the
power, upon the affirmative vote of a majority of the directors at a meeting
lawfully convened, to make, adopt, alter, amend, and repeal from time to time
the By-laws of the Corporation and to make from time to time new By-laws of the
Corporation (subject to the right of the stockholders entitled to vote thereon
to adopt, alter, amend, repeal By-laws made by the board of directors or to
make new By-laws); provided, however, that the stockholders of the Corporation
shall be entitled to adopt, alter, amend, or repeal By-laws made by the board
of directors or to make new By-laws solely upon the
4
<PAGE> 5
affirmative vote of the holders of at least a majority of the outstanding
shares of each class of capital stock of the Corporation then entitled to vote
thereon.
EIGHTH: A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for any breach of the
director's duty loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. Any repeal or amendment of this Article EIGHTH by
the stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
Corporation arising from an act or omission occurring prior to the time of such
repeal or amendment. In additional to the circumstances in which a director of
the Corporation is not personally liable as set forth in the foregoing
provisions of this Article EIGHTH, a director shall be liable to the
Corporation or its stockholders to such further extent as permitted by any law
hereafter enacted, including without limitation any subsequent amendment to the
Delaware General Corporation Law.
NINTH: The number of directors constituting the board of
directors shall be fixed by, or in the manner provided in, the By-laws of the
Corporation, provided that such number shall be no fewer than five and no more
than nine. The directors of the Corporation shall be referred to herein as
"Classified Directors" and shall be divided into three classes, with the first
class referred to herein as "Class I," the second class as "Class II," and the
third class as "Class III." Each class shall consist as nearly as possible of
one-third (1/3) of the total number of directors making up the entire board of
directors. The term of office of the initial Class I directors shall expire at
the 1994 annual meeting of stockholders, the term of office of the initial
Class II directors shall expire at the 1995 annual meeting of stockholders, and
the term of office of the initial Class III directors shall expire at the 1996
annual meeting of stockholders, with each director to hold office until his
successor shall have been duly elected and qualified. At each annual meeting
of stockholders, directors elected to succeed those directors whose terms then
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election, with each director to hold
office until his successor shall have been duly elected and qualified.
Any or all Classified Directors may be removed, with cause, upon
the affirmative vote of the holders of a majority of the outstanding shares of
each class of capital stock of the Corporation then entitled to vote at an
election of such Classified Directors.
5
<PAGE> 6
TENTH: The Corporation expressly elects not to be governed by
Section 203 of the General Corporation Law of Delaware.
ELEVENTH: Any action required or permitted to be taken by the
stockholders of the Corporation (including without limitation the election of
Classified Directors) shall be effected at an annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders. Special meetings of stockholders of the
Corporation may be called by the board of directors pursuant to a resolution
adopted by a majority of the Classified Directors then serving, by the Chairman
of the board of directors, or by any holder or holders of at least twenty-five
percent (25%) of the outstanding shares of capital stock of the Corporation
then entitled to vote on any matter for which the respective special meeting is
being called.
TWELFTH: Notwithstanding any other provisions of this
Certificate of Incorporation or any provision of law which might otherwise
permit a lesser vote or not vote, the affirmative vote of the holders of at
least a majority of the outstanding shares of each class of capital stock of
the Corporation then entitled to vote thereon shall be required to amend,
alter, or repeal any provisions of this Certificate of Incorporation.
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be executed and attested on this 14th day of
January, 1994.
TDII COMPANY
By: /s/ JAMES N. MILLS
----------------------------------
James N. Mills
Chairman of the Board and
Chief Executive Officer
ATTEST:
By: /s/ ELLEN L. LIPSITZ
--------------------------------
Ellen L. Lipsitz
Assistant Secretary
6
<PAGE> 1
EXHIBIT 4.2
AMENDED AND RESTATED
BY-LAWS
OF
THERMADYNE HOLDINGS CORPORATION
A Delaware Corporation
PREAMBLE
These By-laws are subject to, and governed by, the General Corporation
Law of the State of Delaware (the "Delaware Corporation Law") and the
certificate of incorporation of Thermadyne Holdings Corporation (formerly TDII
Company), a Delaware corporation (the "Corporation"). In the event of a direct
conflict between the provisions of these By-laws and the mandatory provisions
of the Delaware Corporation Law or the provisions of the certificate of
incorporation of the Corporation, such provisions of the Delaware Corporation
Law or the certificate of incorporation of the Corporation, as the case may be,
will be controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and
registered agent of the Corporation shall be as designated from time to time by
the appropriate filing by the Corporation in the office of the Secretary of
State of the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at such
other places, both within and without the State of Delaware, as the board of
directors may from time to time determine or as the business of the Corporation
may require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting or in a duly executed waiver of notice of such
meeting. At such meeting, the stockholders shall elect directors and transact
such other business as may be properly brought before the meeting.
<PAGE> 2
2.2 Special Meeting. A special meeting of the stockholders may be
called by the board of directors pursuant to a resolution adopted by a majority
of the Classified Directors (as defined in Section 3.2 hereof) then serving, by
the Chairman of the Board, or by any holder or holders of record of at least
25% of the outstanding shares of capital stock of the Corporation then entitled
to vote on any matter for which the respective special meeting is being called
(considered for this purpose as one class). A special meeting shall be held on
such date and at such time as shall be designated by the person(s) calling the
meeting and stated in the notice of the meeting or in a duly executed waiver of
notice of such meeting. Only such business shall be transacted at a special
meeting as may be stated or indicated in the notice of such meeting given in
accordance with these By-laws or in a duly executed waiver of notice of such
meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held
at any place within or without the State of Delaware designated by the board of
directors. A special meeting of stockholders may be held at any place within
or without the State of Delaware designated in the notice of the meeting or a
duly executed waiver of notice of such meeting. Meetings of stockholders shall
be held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and
time of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called shall be delivered not less
than ten nor more than 60 days before the date of the meeting, either
personally or by mail, by or at the direction of the President, the Secretary,
or the officer or person(s) calling the meeting, to each stockholder of record
entitled to vote at such meeting. If such notice is to be sent by mail, it
shall be directed to such stockholder at his address as it appears on the
records of the Corporation, unless he shall have filed with the Secretary of
the Corporation a written request that notices to him be mailed to some other
address, in which case it shall be directed to him at such other address.
Notice of any meeting of stockholders shall not be required to be given to any
stockholder who shall attend such meeting in person or by proxy and shall not,
at the beginning of such meeting, object to the transaction of any business
because the meeting is not lawfully called or convened, or who shall, either
before or after the meeting, submit a signed waiver of notice, in person or by
proxy.
2.5 Notice of Stockholder Business; Nomination of Director
Candidates.
(a) At annual or special meetings of the stockholders, only
such business shall be conducted as shall have been brought before the
meetings (i) pursuant to the Corporation's notice of meeting, (ii) by or
at the direction of the board of directors, or (iii) by any stockholder
of the Corporation who is a stockholder of record at the time of giving
of notice provided for in this Section 2.5, who shall be entitled to
vote at such meeting, and who complies with the notice procedures set
forth in this Section 2.5.
(b) Only persons who are nominated in accordance with the
procedures set forth in these By-laws shall be eligible to serve as
directors. Nominations of persons for election to
2
<PAGE> 3
the board of directors may be made at an annual or special meeting of
stockholders (i) by or at the direction of the board of directors or
(ii) by any stockholder of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this Section 2.5,
who shall be entitled to vote for the election of directors at the
meeting, and who complies with the notice procedures set forth in this
Section 2.5.
(c) A stockholder must give timely, written notice to the
Secretary of the Corporation to nominate directors at an annual or
special meeting pursuant to Section 2.5(b) hereof or to propose business
to be brought before an annual or special meeting pursuant to clause
(iii) of Section 2.5(a) hereof. To be timely in the case of an annual
meeting, a stockholder's notice must be received at the principal
executive offices of the Corporation not less than 75 days before the
first anniversary of the preceding year's annual meeting (or by February
28, 1994 with respect to the 1994 annual meeting). To be timely in the
case of a special meeting or in the event that the date of the annual
meeting is changed by more than 30 days from such anniversary date, a
stockholder's notice must be received at the principal executive offices
of the Corporation no later than the close of business on the tenth day
following the earlier of the day on which notice of the meeting date was
mailed or public disclosure of the meeting date was made. Such
stockholder's notice shall set forth (i) with respect to each matter, if
any, that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting and
the reasons for conducting such business at the meeting, (ii) with
respect to each person, if any, whom the stockholder proposes to
nominate for election or re-election as a director, all information
relating to such person (including such person's written consent to
being named in the proxy statement as a nominee and to serving as a
director) that is required under the Securities Exchange Act of 1934, as
amended, (iii) the name and address, as they appear on the Corporation's
records, of the stockholder proposing such business or nominating such
persons (as the case may be), and the name and address of the beneficial
owner, if any, on whose behalf the proposal or nomination is made, (iv)
the class and number of shares of capital stock of the Corporation that
are owned beneficially and of record by such stockholder of record and
by the beneficial owner, if any, on whose behalf the proposal or
nomination is made, and (v) any material interest or relationship that
such stockholder of record and/or the beneficial owner, if any, on whose
behalf the proposal or nomination is made may respectively have in such
business or with such nominee. At the request of the board of
directors, any person nominated for election as a director shall furnish
to the Secretary of the Corporation the information required to be set
forth in a stockholder's notice of nomination which pertains to the
nominee.
(d) Notwithstanding anything in these By-laws to the contrary,
no business shall be conducted, and no person shall be nominated to
serve as a director, at an annual or special meeting of stockholders,
except in accordance with the procedures set forth in this Section 2.5
and elsewhere in these By-laws. The chairman of the meeting shall, if
the facts warrant, determine that business was not properly brought
before the meeting, or that a nomination was not made, in accordance
with the procedures prescribed by these By-laws and, if he shall
3
<PAGE> 4
so determine, he shall so declare to the meeting, and any such business
not properly brought before the meeting shall not be transacted and any
defective nomination shall be disregarded. Notwithstanding the
foregoing provisions of these By-laws, a stockholder shall also comply
with all applicable requirements of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder with respect to the
matters set forth in this Section 2.5.
2.6 Voting List. At least ten days before each meeting of
stockholders, the Secretary or other officer of the Corporation who has charge
of the Corporation's stock ledger, either directly or through another officer
appointed by him or through a transfer agent appointed by the board of
directors, shall prepare a complete list of stockholders entitled to vote
thereat, arranged in alphabetical order and showing the address of each
stockholder and number of shares of capital stock registered in the name of
each stockholder. For a period of ten days prior to such meeting, such list
shall be kept on file at a place within the city where the meeting is to be
held, which place shall be specified in the notice of meeting or a duly
executed waiver of notice of such meeting or, if not so specified, at the place
where the meeting is to be held and shall be open to examination by any
stockholder during ordinary business hours. Such list shall be produced at
such meeting and kept at the meeting at all times during such meeting and may
be inspected by any stockholder who is present.
2.7 Quorum. The holders of a majority of the outstanding shares of
capital stock entitled to vote on a matter, present in person or by proxy,
shall constitute a quorum at any meeting of stockholders, except as otherwise
provided by law, the certificate of incorporation of the Corporation, or these
By-laws. If a quorum shall not be present, in person or by proxy, at any
meeting of stockholders, the stockholders entitled to vote thereat who are
present, in person or by proxy (or, if no stockholder entitled to vote is
present, any officer of the Corporation), may adjourn the meeting from time to
time without notice other than announcement at the meeting (unless the board of
directors, after such adjournment, fixes a new record date for the adjourned
meeting), until a quorum shall be present, in person or by proxy. At any
adjourned meeting at which a quorum shall be present, in person or by proxy,
any business may be transacted which may have been transacted at the original
meeting had a quorum been present; provided that, if the adjournment is for
more than 30 days or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the adjourned meeting.
2.8 Required Vote; Withdrawal of Quorum. When a quorum is present at
any meeting, the vote of the holders of at least a majority of the outstanding
shares of capital stock entitled to vote thereat who are present, in person or
by proxy, shall decide any question brought before such meeting, unless the
question is one on which, by express provision of law, the certificate of
incorporation of the Corporation, or these By-laws, a different vote is
required, in which case such express provision shall govern and control the
decision of such question. The stockholders present at a duly constituted
meeting may continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum.
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2.9 Method of Voting; Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or by law, each outstanding
share of capital stock, regardless of class, shall be entitled to one vote on
each matter submitted to a vote at a meeting of stockholders. Elections of
directors need not be by written ballot. At any meeting of stockholders, every
stockholder having the right to vote may vote either in person or by a proxy
executed in writing by the stockholder or by his duly authorized attorney-in-
fact. Each such proxy shall be filed with the Secretary of the Corporation
before or at the time of the meeting. No proxy shall be valid after three
years from the date of its execution, unless otherwise provided in the proxy.
If no date is stated in a proxy, such proxy shall be presumed to have been
executed on the date of the meeting at which it is to be voted. Each proxy
shall be revocable unless expressly provided therein to be irrevocable and
coupled with an interest sufficient in law to support an irrevocable power or
unless otherwise made irrevocable by law.
2.10 Record Date. For the purpose of determining stockholders
entitled (a) to notice of or to vote at any meeting of stockholders or any
adjournment thereof, (b) to receive payment of any dividend or other
distribution or allotment of any rights, or (c) to exercise any rights in
respect of any change, conversion, or exchange of stock or for the purpose of
any other lawful action, the board of directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the board of directors, for any such determination of
stockholders, such date in any case to be not more than 60 days and not less
than ten days prior to such meeting nor more than 60 days prior to any other
action. If no record date is fixed:
(i) The record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be
at the close of business on the day next preceding the day on which
notice is given or, if notice is waived, at the close of business on the
day next preceding the day on which the meeting is held.
(ii) The record date for determining stockholders for
any other purpose shall be at the close of business on the day on which
the board of directors adopts the resolution relating thereto.
(iii) 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.
2.11 Conduct of Meeting. The Chairman of the Board, if such office
has been filled, and, if not or if the Chairman of the Board is absent or
otherwise unable to act, the President shall preside at all meetings of
stockholders. The Secretary shall keep the records of each meeting of
stockholders. In the absence or inability to act of any such officer, such
officer's duties shall be performed by the officer given the authority to act
for such absent or non-acting officer under these By-laws or by some person
appointed by the meeting.
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2.12 Inspectors. The board of directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such meeting
or any adjournment thereof. If any of the inspectors so appointed shall fail
to appear or act, the chairman of the meeting shall, or if inspectors shall not
have been appointed, the chairman of the meeting may, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, and the validity and
effect of proxies and shall receive votes, ballots, or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots, or consents, determine the
results, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the chairman of the meeting, the
inspectors shall make a report in writing of any challenge, request, or matter
determined by them and shall execute a certificate of any fact found by them.
No director or candidate for the office of director shall act as an inspector
of an election of directors. Inspectors need not be stockholders.
ARTICLE THREE: DIRECTORS
3.1 Management. The business and property of the Corporation shall
be managed by the board of directors. Subject to the restrictions imposed by
law, the certificate of incorporation of the Corporation, or these By-laws, the
board of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. The board of directors
shall consist of no fewer than five and no more than nine directors. The
directors of the Corporation shall be referred to herein as "Classified
Directors" and shall be divided into three classes, with the first class
referred to herein as "Class I," the second class as "Class II," and the third
class as "Class III." Each class shall consist as nearly as possible of one-
third (1/3) of the total number of directors making up the entire board of
directors. The term of office of the initial Class I directors shall expire at
the 1994 annual meeting of stockholders, the term of office of the initial
Class II directors shall expire at the 1995 annual meeting of stockholders, and
the term of office of the initial Class III directors shall expire at the 1996
annual meeting of stockholders, with each director to hold office until his
successor shall have been duly elected and qualified. At each annual meeting
of stockholders, directors elected to succeed those directors whose terms then
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election, with each director to hold
office until his successor shall have been duly elected and qualified.
3.3 Change in Number. No decrease in the number of directors
constituting the entire board of directors shall have the effect of shortening
the term of any incumbent director.
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3.4 Removal; Vacancies.
Any or all Classified Directors may be removed, with cause, at any
annual or special meeting of stockholders, upon the affirmative vote of the
holders of a majority of the outstanding shares of each class of capital stock
then entitled to vote in person or by proxy at an election of such Classified
Directors, provided that notice of the intention to act upon such matter shall
have been given in the notice calling such meeting. Newly created
directorships resulting from any increase in the authorized number of
Classified Directors and any vacancies occurring in the board of directors
caused by death, resignation, retirement, disqualification, removal or other
termination from office of any Classified Directors may be filled by the vote
of a majority of the Classified Directors then in office, though less than a
quorum, or by the affirmative vote, at any annual meeting or any special
meeting of the stockholders called for the purpose of filling such
directorship, of the holders of a majority of the outstanding shares of each
class of capital stock then entitled to vote in person or by proxy at an
election of such Classified Directors. Each successor Classified Director so
chosen shall hold office until the next election of the class for which such
director shall have been chosen and until his respective successor shall have
been duly elected and qualified.
3.5 Meetings of Directors. The directors may hold their meetings and
may have an office and keep the records of the Corporation, except as otherwise
provided by law, in such place or places within or without the State of
Delaware as the board of directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.6 First Meeting. Each newly elected board of directors may hold
its first meeting for the purpose of organization and the transaction of
business, if a quorum is present, immediately after and at the same place as
the annual meeting of stockholders, and no notice of such meeting shall be
necessary.
3.7 Election of Officers. At the first meeting of the board of
directors after each annual meeting of stockholders at which a quorum shall be
present, the board of directors shall elect the officers of the Corporation.
3.8 Regular Meetings. Regular meetings of the board of directors
shall be held at such times and places as shall be designated from time to time
by resolution of the board of directors. Notice of such regular meetings shall
not be required.
3.9 Special Meetings. Special meetings of the board of directors
shall be held whenever called by the Chairman of the Board, the President, or
any director.
3.10 Notice. The Secretary shall give notice of each special meeting
to each director at least 24 hours before the meeting. Notice of any such
meeting need not be given to any director who, either before or after the
meeting, submits a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to him.
The purpose of any special meeting shall be specified in the notice or waiver
of notice of such meeting.
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3.11 Quorum; Majority Vote. At all meetings of the board of
directors, a majority of the directors fixed in the manner provided in these
By-laws shall constitute a quorum for the transaction of business. If at any
meeting of the board of directors there is less than a quorum present, a
majority of those present or any director solely present may adjourn the
meeting from time to time without further notice. Unless the act of a greater
number is required by law, the certificate of incorporation of the Corporation,
or these By-laws, the act of a majority of the directors present at a meeting
at which a quorum is in attendance shall be the act of the board of directors.
At any time that the certificate of incorporation of the Corporation provides
that directors elected by the holders of a class or series of stock shall have
more or less than one vote per director on any matter, every reference in these
By-laws to a majority or other proportion of directors shall refer to a
majority or other proportion of the votes of such directors.
3.12 Procedure. At meetings of the board of directors, business shall
be transacted in such order as from time to time the board of directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
President shall preside at all meetings of the board of directors. In the
absence or inability to act of either such officer, a chairman shall be chosen
by the board of directors from among the directors present. The Secretary of
the Corporation shall act as the secretary of each meeting of the board of
directors unless the board of directors appoints another person to act as
secretary of the meeting. The board of directors shall keep regular minutes of
its proceedings which shall be placed in the minute book of the Corporation.
3.13 Presumption of Assent. A director of the Corporation who is
present at the meeting of the board of directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting as
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or registered mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
3.14 Compensation. The board of directors shall have the authority to
fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE FOUR: COMMITTEES
4.1 Designation. The board of directors may, by resolution adopted
by a majority of the entire board of directors, designate one or more
committees.
4.2 Number; Qualification; Term. Each committee shall consist of one
or more directors appointed by resolution adopted by a majority of the entire
board of directors. The number of
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committee members may be increased or decreased from time to time by resolution
adopted by a majority of the entire board of directors. Each committee member
shall serve as such until the earliest of (i) the expiration of his term as
director, (ii) his resignation as a committee member or as a director, or (iii)
his removal as a committee member or as a director.
4.3 Authority. Each committee, to the extent expressly provided in
the resolution establishing such committee, shall have and may exercise all of
the authority of the board of directors in the management of the business and
property of the Corporation except to the extent expressly restricted by such
resolution or by law, the certificate of incorporation of the Corporation, or
these By-laws.
4.4 Committee Changes. The board of directors shall have the power
at any time to fill vacancies in, to change the membership of, and to discharge
any committee.
4.5 Alternate Members of Committees. The board of directors may
designate one or more directors as alternate members of any committee. Any
such alternate member may replace any absent or disqualified member at any
meeting of the committee. If no alternate committee members have been so
appointed to a committee or each such alternate committee member is absent or
disqualified, the member or members of such committee present at any meeting
and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the board of directors to act
at the meeting in the place of any such absent or disqualified member.
4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee
member at least two days before such special meeting. Neither the business to
be transacted at, nor the purpose of, any special meeting of any committee need
be specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a majority
of the number of members designated by the board of directors shall constitute
a quorum for the transaction of business. If a quorum is not present at a
meeting of any committee, a majority of the members present may adjourn the
meeting from time to time, without notice other than an announcement at the
meeting, until a quorum is present. The act of a majority of the members
present at any meeting at which a quorum is in attendance shall be the act of a
committee, unless the act of a greater number is required by law, the
certificate of incorporation of the Corporation, or these By-laws.
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4.9 Minutes. Each committee shall cause minutes of its proceedings
to be prepared and shall report the same to the board of directors upon the
request of the board of directors. The minutes of the proceedings of each
committee shall be delivered to the Secretary of the Corporation for placement
in the minute books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the board
of directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the board of
directors or any director of any responsibility imposed upon it or such
director by law.
ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation of
the Corporation, or these By-laws, notice is required to be given to any
committee member, director, or stockholder and no provision is made as to how
such notice shall be given, personal notice shall not be required and any such
notice may be given (a) in writing, by mail, postage prepaid, addressed to such
committee member, director, or stockholder at his address as it appears on the
books or (in the case of a stockholder) the stock transfer records of the
Corporation, or (b) by any other method permitted by law (including but not
limited to overnight courier service, telegram, telex, or telefax). Any notice
required or permitted to be given by mail shall be deemed to be delivered and
given at the time when the same is deposited in the United States mail as
aforesaid. Any notice required or permitted to be given by overnight courier
service shall be deemed to be delivered and given at the time delivered to such
service with all charges prepaid and addressed as aforesaid. Any notice
required or permitted to be given by telegram, telex, or telefax shall be
deemed to be delivered and given at the time transmitted with all charges
prepaid and addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these By-laws, a waiver
thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to the
giving of such notice. Attendance of a stockholder, director, or committee
member at a meeting shall constitute a waiver of notice of such meeting, except
where such person attends for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation
shall be a Chairman of the Board, a President, a Secretary, and such other
officers as the board of directors may from time to time elect or appoint,
including one or more Vice Presidents (with each Vice President to have such
descriptive title, if any, as the board of directors shall determine) and a
Treasurer. Each
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officer shall hold office until his successor shall have been duly elected and
shall have qualified, until his death, or until he shall resign or shall have
been removed in the manner hereinafter provided. Any two or more offices may
be held by the same person. None of the officers need be a stockholder or a
director of the Corporation or a resident of the State of Delaware.
6.2 Removal. Any officer or agent elected or appointed by the board
of directors may be removed by the board of directors whenever in its judgment
the best interest of the Corporation will be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. Election or appointment of an officer or agent shall not of itself
create contract rights.
6.3 Vacancies. Any vacancy occurring in any office of the
Corporation (by death, resignation, removal, or otherwise) may be filled by the
board of directors.
6.4 Authority. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these By-laws or
as may be determined by resolution of the board of directors not inconsistent
with these By-laws.
6.5 Compensation. The compensation, if any, of officers and agents
shall be fixed from time to time by the board of directors; provided, however,
that the board of directors may delegate the power to determine the
compensation of any officer and agent (other than the officer to whom such
power is delegated) to the Chairman of the Board or the President.
6.6 Chairman of the Board. The Chairman of the Board shall, subject
to the supervision of the board of directors of the Corporation, have the
general management and control of the Corporation. Such officer shall preside
at all meetings of the stockholders and of the board of directors and shall
have such duties as may from time to time be assigned by the board of
directors. Such officer may sign all certificates for shares of stock of the
Corporation.
6.7 President. The President shall, subject to the supervision of
the board of directors of the Corporation, have general executive charge,
management, and control of the properties and operations of the Corporation in
the ordinary course of its business, with all such powers with respect to such
properties and operations as may be reasonably incident to such
responsibilities. In the absence or inability to act of the Chairman of the
Board, the President shall exercise all of the powers and discharge all of the
duties of the Chairman of the Board. As between the Corporation and third
parties, any action taken by the President in the performance of the duties of
the Chairman of the Board shall be conclusive evidence that the Chairman of the
Board is absent or unable to act.
6.8 Vice Presidents. Each Vice President shall have such powers and
duties as may be assigned to him by the board of directors, the Chairman of the
Board, or the President, and (in order of their seniority as determined by the
board of directors or, in the absence of such determination, as determined by
the length of time they have held the office of Vice President) shall exercise
the powers of the President during that officer's absence or inability to act.
As between the Corporation
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and third parties, any action taken by a Vice President in the performance of
the duties of the President shall be conclusive evidence of the absence or
inability to act of the President at the time such action was taken.
6.9 Treasurer. The Treasurer shall have custody of the Corporation's
funds and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Corporation in such depository or depositories as may be
designated by the board of directors, and shall perform such other duties as
may be prescribed by the board of directors, the Chairman of the Board, or the
President.
6.10 Assistant Treasurers. Each Assistant Treasurer shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Treasurers (in the
order of their seniority as determined by the board of directors or, in the
absence of such a determination, as determined by the length of time they have
held the office of Assistant Treasurer) shall exercise the powers of the
Treasurer during that officer's absence or inability to act.
6.11 Secretary. Except as otherwise provided in these By-laws, the
Secretary shall keep the minutes of all meetings of the board of directors and
of the stockholders in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board or the President or any other authorized officer of the Corporation, in
the name of the Corporation, all contracts of the Corporation and affix the
seal of the Corporation thereto. He may sign with the Chairman of the Board or
the President or any Vice President all certificates for shares of stock of the
Corporation, and he shall have charge of the certificate books, transfer books,
and stock papers as the board of directors may direct, all of which shall at
all reasonable times be open to inspection by any director upon application at
the office of the Corporation during business hours. He shall in general
perform all duties incident to the office of the Secretary, subject to the
control of the board of directors, the Chairman of the Board, and the
President.
6.12 Assistant Secretaries. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Secretaries (in the
order of their seniority as determined by the board of directors or, in the
absence of such a determination, as determined by the length of time they have
held the office of Assistant Secretary) shall exercise the powers of the
Secretary during that officer's absence or inability to act.
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board or
the President or a Vice President and also by the Secretary or an Assistant.
Secretary or by the Treasurer or an Assistant Treasurer. Any and all
signatures on the certificate may
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be a facsimile and may be sealed with the seal of the Corporation or a
facsimile thereof. If any officer, transfer agent, or registrar who has
signed, or whose facsimile signature has been placed upon, a certificate has
ceased to be such officer, transfer agent, or registrar before such certificate
is issued, such certificate 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. The certificates shall be consecutively numbered and shall be entered
in the books of the Corporation as they are issued and shall exhibit the
holder's name and the number of shares.
7.2 Replacement of Lost or Destroyed Certificates. The board of
directors may direct a new certificate or certificates to be issued in place of
a certificate or certificates theretofore issued by the Corporation and alleged
to have been lost or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate or certificates representing shares to be
lost 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 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 with a
surety or sureties satisfactory to the Corporation in such sum as it may direct
as indemnity against any claim, or expense resulting from a claim, that may be
made against the Corporation with respect to the certificate or certificates
alleged to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in
fact thereof and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
7.5 Regulations. The board of directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer, and registration or the replacement of
certificates for shares of stock of the Corporation.
7.6 Legends. The board of directors shall have the power and
authority to provide that certificates representing shares of stock bear such
legends as the board of directors deems appropriate to assure that the
Corporation does not become liable for violations of federal or state
securities laws or other applicable law.
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ARTICLE EIGHT: MISCELLANEOUS; PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash, in
property, or in shares of stock of the Corporation. Such declaration and
payment shall be at the discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors out of
funds of the Corporation legally available therefor such reserve or reserves as
the directors from time to time, in their discretion, consider proper to
provide for contingencies, to equalize dividends, or to repair or maintain any
property of the Corporation, or for such other purpose as the board of
directors shall consider beneficial to the Corporation, and the board of
directors may modify or abolish any such reserve in the manner in which it was
created.
8.3 Books and Records. The Corporation shall keep correct and
complete books and records of account, shall keep minutes of the proceedings of
its stockholders and board of directors and shall keep at its registered office
or principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed
by the board of directors.
8.5 Seal. The seal of the Corporation shall be such as from time to
time may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer may
resign by so stating at any meeting of the board of directors or by giving
written notice to the board of directors, the Chairman of the Board, the
President, or the Secretary. Such resignation shall take effect at the time
specified therein or, if no time is specified therein, immediately upon its
receipt. Unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
8.7 Securities of Other Corporations. The Chairman of the Board, the
President, or any Vice President of the Corporation shall have the power and
authority to transfer, endorse for transfer, vote, consent, or take any other
action with respect to any securities of another issuer which may be held or
owned by the Corporation and to make, execute, and deliver any waiver, proxy,
or consent with respect to any such securities.
8.8 Telephone Meetings. Stockholders (acting for themselves or
through a proxy), members of the board of directors, and members of a committee
of the board of directors may participate in and hold a meeting of such
stockholders, board of directors, or committee by means of a conference
telephone or similar communications equipment by means of which persons
participating in the meeting can hear each other, and participation in a
meeting pursuant to this section shall
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constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
8.9 Action Without a Meeting.
(a) Except as otherwise provided in the certificate of
incorporation of the Corporation, any action required by the Delaware
Corporation Law to be taken at any annual or special meeting of the
stockholders, or any action which may be taken at any annual or special
meeting of the stockholders, may be taken without a meeting, without
prior notice, and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders
(acting for themselves or through a proxy) 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 the holders of all
shares entitled to vote thereon were present and voted and shall be
delivered to the Corporation by delivery to its registered office in the
State of Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings
of meetings of stockholders are recorded. Every written consent of
stockholders shall bear the date of signature of each stockholder who
signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered in the manner required by this Section
8.9(a) to the Corporation, written consents signed by a sufficient
number of holders to take action are delivered to the Corporation by
delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's
registered office, principal place of business, or such officer or agent
shall be by hand or by certified or registered mail, return receipt
requested.
(b) Except as otherwise provided in the certificate of
incorporation of the Corporation or in these By-laws, any action
required or permitted to be taken at a meeting of the board of
directors, or of any committee of the board of directors, may be taken
without a meeting if a consent or consents in writing, setting forth the
action so taken, shall be signed by all the directors or all the
committee members, as the case may be, entitled to vote with respect to
the subject matter thereof, and such consent shall have the same force
and effect as a vote of such directors or committee members, as the case
may be, and may be stated as such in any certificate or document filed
with the Secretary of State of the State of Delaware or in any
certificate delivered to any person. Such consent or consents shall be
filed with the minutes of proceedings of the board or committee, as the
case may be.
8.10 Invalid Provisions. If any part of these By-laws shall be held
invalid or inoperative for any reason, the remaining parts, so far as it is
possible and reasonable, shall remain valid and operative.
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8.11 Mortgages, etc. With respect to any deed, deed of trust,
mortgage, or other instrument executed by the Corporation through its duly
authorized officer or officers, the attestation to such execution by the
Secretary of the Corporation shall not be necessary to constitute such deed,
deed of trust, mortgage, or other instrument a valid and binding obligation
against the Corporation unless the resolutions, if any, of the board of
directors authorizing such execution expressly state that such attestation is
necessary.
8.12 Headings. The headings used in these By-laws have been inserted
for administrative convenience only and do not constitute matter to be
construed in interpretation.
8.13 References. Whenever herein the singular number is used, the
same shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.14 Amendments. The board of directors may, upon the affirmative
vote of a majority of the directors in accordance with Section 3.11 hereof and
of at least two-thirds of the Classified Directors then serving, make, adopt,
alter, amend, and repeal from time to time these By-laws and make from time to
time new by-laws of the Corporation (subject to the right of the stockholders
entitled to vote thereon to adopt, alter, amend, and repeal by-laws made by the
board of directors or to make new by-laws); provided, however, that the
stockholders of the Corporation may adopt, alter, amend, or repeal by-laws made
by the board of directors or make new by-laws solely upon the affirmative vote
of the holders of at least a majority of the outstanding shares of each class
of capital stock then entitled to vote thereon.
The undersigned Assistant Secretary of the Corporation hereby certifies
that the foregoing Amended and Restated By-laws were adopted as of February 1,
1994, pursuant to the Order Confirming Chapter 11 Plan of TDII Company issued
by the United States Bankruptcy Court, District of Delaware, on January 18,
1994.
/s/ Ellen L. Lipsitz
-----------------------------------
Ellen L. Lipsitz
Assistant Secretary
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EXHIBIT 4.3
AMENDMENT TO THE
THERMADYNE HOLDINGS CORPORATION
1996 EMPLOYEE STOCK OPTION PLAN
WHEREAS, the Board of Directors of Thermadyne Holdings Corporation (the
"Company") has adopted the Thermadyne Holdings Corporation 1996 Stock Option
Plan (the "Plan");
WHEREAS, Section 21(b) of the Plan provides that the Board of Directors
of the Company may amend the Plan;
WHEREAS, The Company desires to increase the number of shares of the
Company's common stock available under the Plan from 300,000 to 800,000;
WHEREAS, the Company desires to amend the qualifications of members of
the committee administering the Plan;
WHEREAS, the Company desires that the Plan provide for the grant of
replacement options in the discretion of the committee administering the Plan;
WHEREAS, the Company desires to amend the Plan with respect to the
transferability of options granted under the Plan; and
WHEREAS, the Company desires to amend the amendment provision under the
Plan.
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Section 2(b) is hereby amended in its entirety and restated as
follows:
(b) "Award" means options, including incentive stock options
and Replacement Options, granted under the Plan.
2. Section 2 is hereby amended by deleting Section 2(p) in its
entirety, and by appropriately renumbering those subsections of Section 2 that
follow Section 2(o).
<PAGE> 2
3. Section 2 is hereby amended by adding a new Section 2(y) after
Section 2(x) (as renumbered in accordance with the amendment contained in
Paragraph 2 above) as follows:
(y) "Replacement Option" means an option granted pursuant to
Section 6(d).
In addition, Section 2 is hereby amended by appropriately renumbering those
subsections of Section 2 that follow new Section 2(y).
4. Section 3 is hereby amended by deleting the number "300,000" and
replacing it with the number "800,000."
5. Section 4(a) is hereby amended in its entirety and restated as
follows:
(a) Subject to Section 4(b), the Plan shall be administered by
a committee or subcommittee of the Board ("Committee") which shall
consist of not less than two persons who are directors of the company
and who each qualifies as (i) an "outside director," as such term is
defined for purposes of the regulations under Code Section 162(m) and
(ii) a "Non-Employee Director," as such term is defined for purposes of
Rule 16b-3 under the 1934 Act.
6. Section 6 is hereby amended by adding a new Section 6(d) as
follows:
(d) Grant of Replacement Options. At the time of grant of any
Award under the Plan, or at the time of grant of any stock option award
under any other stock option plan of the Company ("Other Award"), or at
anytime after the grant of such Award or Other Award, the Committee may,
in its discretion, provide for the grant of a Replacement Option,
subject to the following terms and conditions:
(i) A Replacement Option shall only be granted by the
Committee if the Grantee (or other person or entity
authorized to exercise the Award or Other Award)
exercises an Award or Other Award (an "Exercised
Option") by using shares of Stock (which have been
held by the Grantee or other person or entity for
at least six full months immediately prior to the
date of exercise of
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<PAGE> 3
the Exercised Option) as payment of the exercise
price, whether in whole or in part.
(ii) The Replacement Option shall be evidenced by its
own Award Agreement.
(iii) The Grant Date of a Replacement Option shall be the
date that the Exercised Option is exercised.
(iv) The number of shares of Stock underlying a
Replacement Option grant shall not exceed the
number of shares of Stock tendered to the Company
by the Grantee or other authorized person or entity
as payment of the exercise price of the Exercised
Option.
(v) The aggregate of all shares of Stock underlying all
Replacement Options granted to any individual
Grantee under the Plan shall not exceed the number
of shares of Stock underlying all exercisable
Awards and Other Awards held by the Grantee.
(vi) A Replacement Option shall have an exercise price
equal to the Fair Market Value of the Stock on the
date the Exercised Option is exercised.
(vii) A Replacement Option shall have an Option Term that
does not extend beyond the remaining term of the
Exercised Option.
(viii) For purposes of the number of shares of Stock (a)
available under the Plan pursuant to Section 3 and
(b) for which options may be granted to any Grantee
in any calendar year pursuant to Section 6(a)(iv),
a Replacement Option shall be treated as the grant
of a new Award.
(ix) A Replacement Option may be granted with respect to
the grant and exercise of an incentive stock option
and may itself qualify as an incentive stock
option; provided, however, that if the grant of the
Replacement Option
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<PAGE> 4
disqualifies the applicable exercised incentive
stock option as an incentive stock option, such
grant of such Replacement Option shall be null and
void ab initio and without effect.
(x) A Replacement Option shall be fully exercisable on
the Grant Date, except as the Committee may
otherwise provide.
(xi) The Replacement Option may be subject to such other
terms and conditions that the Committee may
determine as appropriate; provided, however, that
such other terms and conditions are not
inconsistent with the Plan.
7. Section 21(a) is hereby amended in its entirety and restated as
follows:
(b) The Board may, from time to time and in its discretion,
amend the Plan without the approval of the Company's stockholders,
except as such stockholder approval shall be required (i) by Code
Section 162(m) and/or Code Section 422 or (ii) under the listing
requirements of any securities exchange or national market system on
which are listed the Company's equity securities.
8. The foregoing amendments shall become effective when approved by
the Board of Directors of the Company; provided, however, that the amendment
contained in Paragraph 4 above, which increases the number of shares of the
Company's common stock available under the Plan, shall become effective when
approved by both the Board of Directors of the Company and the stockholders of
the Company.
4
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EXHIBIT 5.1
July 3, 1997
Thermadyne Holdings Corporation
101 South Hanley Road
St. Louis, Missouri 63105
Ladies and Gentlemen:
We have acted as counsel to Thermadyne Holdings Corporation, a
Delaware corporation (the "Company"), in connection with the preparation and
filing by the Company with the Securities and Exchange Commission (the
"Commission") of a Registration Statement on Form S-8 to be filed with the
Commission on or about July 3, 1997 (the "Registration Statement"), under the
Securities Act of 1933, as amended, with respect to the offer and sale by the
Company of up to 500,000 shares (the "Registered Shares") of the common stock,
par value $.01 per share, of the Company issuable upon exercise of options
granted pursuant to the Company's 1996 Employee Stock Option Plan, as amended
(the "Plan").
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement, the
Plan and such corporate records, agreements, documents, and other instruments
and such certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such inquiries of
such officers and representatives, as we have deemed relevant and necessary as
a basis for the opinion hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to this opinion that have not been independently established, we
have relied upon certificates of officers and representatives of the Company.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that when (a) the purchase price of the
Registered Shares issuable pursuant to the exercise of an option granted under
the Plan has been appropriately determined in accordance
<PAGE> 2
Thermadyne Holdings Corporation
July 3, 1997
Page 2
with the terms of the Plan and the provisions of the Delaware General
Corporation Law (the "DGCL") (including the provisions requiring the payment of
consideration having a value not less than the par value of such Registered
Shares); (b) each such option has been duly authorized in accordance with the
terms of the Plan and the applicable provisions of the DGCL and the applicable
option agreement has been duly executed and delivered by the Company and the
optionee; and (c) such Registered Shares are issued and delivered against
receipt of payment therefor in accordance with the terms of the Plan and the
applicable option agreement, such Registered Shares will be validly issued,
fully paid and nonassessable.
The opinion expressed herein is limited to the corporate laws of the
State of Delaware and we express no opinion as to the effect on the matters
covered by this letter of the laws of any other jurisdiction.
The opinion expressed herein is rendered solely for your benefit in
connection with the transactions described herein. This opinion may not be
used or relied upon by any other person, nor may this letter or any copies
thereof be furnished to a third party, filed with a governmental agency,
quoted, cited or otherwise referred to without our prior written consent.
We consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ WEIL, GOTSHAL & MANGES LLP
2
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EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in this Registration Statement
pertaining to the 1996 Employee Stock Option Plan of our reports
dated February 7, 1997, with respect to the consolidated financial statements
and schedule of Thermadyne Holdings Corporation included and/or incorporated by
reference in its Annual Report (Form 10-K) for the year ended December 31, 1996,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Orange County, California
July 3, 1997
