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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
LASER VISION CENTERS, INC.
(Exact name of registrant in its charter)
Delaware 43-1530063
(State of incorporation or (I.R.S. Employer
organization) identification number)
540 Maryville Centre Drive, Suite 200 63141
St. Louis, Missouri (zip code)
(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
None None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $0.01 per share
(Title of Class)
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DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The Shares offered hereby are shares of Common Stock of the Company.
Dividends may be paid on the Common Stock of the Company at the discretion of
the Board of Directors, but no dividend or distribution may be made to holders
of Common Stock other than a dividend payable in Common Stock of the Company
until all accrued dividends on Preferred Stock of the Company have been paid.
The Common Stock has exclusive voting power except as required by law and
except to the extent that voting rights are granted in connection with the
issue of Preferred Stock. There are no preemption rights in conjunction with
ownership of the Common Stock of the Company.
The Company's Articles of Incorporation contain an anti-takeover
provision which makes the company a less attractive target for an acquisition
of control by an outsider which does not have the support of the Company's
Board of Directors. This provision requires an affirmative vote of 80% of all
outstanding shares to approve certain business combinations involving entities
owning beneficially at least 10% of the Company's shares. It also requires
that such business combinations be approved by a majority of the outstanding
shares, excluding any shares owned beneficially by entities seeking to
participate in such business combinations.
The Company's Amended Certificate of Incorporation authorizes the
issuance of "blank check" preferred stock with such designations, rights and
preferences as may be determined from time to time by the Board of Directors.
Accordingly, the Board of Directors is empowered, without stockholder approval,
to issue preferred stock with dividend, liquidation, conversion, voting or
other rights which could adversely affect the voting power or other rights of
the holders of the Company's Common Stock, thus making it difficult for a third
party to obtain voting control of the Company. In the event of issuance, the
preferred stock could be utilized, under certain circumstances, as a method of
discouraging, delaying or preventing a change in control of the Company.
EXHIBITS
1.* Specimen of Certificate representing Registrant's Common
Stock.
2. Restated Certificate of Incorporation, as amended, of
Registrant.
2.1 Certificate of Amendments of Certificate of Incorporation of
Registrant
2.2 Restated Bylaws of Registrant.
* Incorporated by reference from Registration Statement No.
33-33843 effective on April 3, 1991.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities and
Exchange Act of 1934, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized.
LASER VISION CENTERS, INC.
(Registrant)
Dated: November 15, 1996 By: /s/ John Klobnak
----------------------------
John Klobnak
Chief Executive Officer
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RESTATED CERTIFICATE OF INCORPORATION
OF
LASER VISION CENTERS, INC.
Laser Vision Centers, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), does hereby certify as
follows:
1. The name of the Corporation is Laser Vision Centers, Inc. The date
on which the original Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware was December 28, 1988.
2. This Restated Certificate of Incorporation has been duly adopted by
the Board of Directors and stockholders of the Corporation in accordance with
the provisions of Sections 242 and 245 of the General Corporation Law of the
State of Delaware.
3. The text of the Certificate of Incorporation of the Corporation is
hereby restated to read in its entirety as follows:
1. The name of the Corporation (hereinafter called the "Corporation")
is Laser Vision Centers, Inc..
2. The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801, 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.
3. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware.
4. The total number of shares of stock which the Corporation shall have
authority to issue is 11,000,000 shares consisting of 1,000,000 shares of
Preferred Stock, having a par value of $.01 per share ("Preferred Stock"), and
10,000,000 shares of Common Stock, having a par value of $.01 per share
("Common Stock").
The Preferred Stock may consist of one or more series. The Board of
Directors may, from time to time, establish and designate the different series
and the variations in the relative rights and preferences as between the
different series, but in all other respects, if any, all shares of the Preferred
Stock shall be identical. In the event that at any time the Board of Directors
shall have established and designated one or more series of Preferred Stock
consisting of a number of shares less than all of the authorized number of
shares of Preferred Stock, the remaining authorized shares of Preferred Stock
shall be deemed to be shares
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of an undesignated series of Preferred Stock until designated by the Board of
Directors as being a part of a series previously established or a new series
then being established by the Board of Directors.
Subject to the provisions hereof, the Board of Directors is authorized
to establish one or more series of Preferred Stock and, to the extent now or
hereafter permitted by the laws of the State of Delaware, to fix and determine
the preferences, voting powers, qualifications and special or relative rights
or privileges of each series including, but not limited to:
(a) the number of shares to constitute such series and the
distinctive designation thereof;
(b) the dividend rate and preferences, if any, on the shares of
such series and the special and relative rights of such shares
of such series as to dividends;
(c) whether or not the shares of such series shall be redeemable,
and, if redeemable, the price, terms and manner of redemption;
(d) the preferences, if any, and the special and relative rights of
the shares of such series upon liquidation of the corporation;
(e) whether or not the shares of such series shall be convertible
into shares of any other class or of any other series of the
same or any other class of stock of the corporation and, if so,
the conversion price or ratio and other conversion rights;
(f) the conditions under which the shares of such series shall have
separate or special voting rights or no voting rights; and
(g) such other designations, preferences and relative,
participating, optional or other special rights and
qualifications, limitations or restrictions of such series to
the full extent now and hereafter permitted by the laws of the
State of Delaware.
Notwithstanding the fixing of the number of shares constituting a
particular series, the Board of Directors may at any time authorize the
issuance of additional shares of the same series (as long as the aggregate
number of shares of all series does not exceed the number of authorized shares
of Preferred Stock hereunder).
Dividends. Holders of Preferred Stock shall be entitled to receive,
when and as declared by the Board of Directors, but only out of funds legally
available for the payment of dividends,
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cash dividends at the rates fixed by the Board of Directors for the respective
series, payable on such dates in each year as the Board of Directors shall fix
for the respective series as provided above (hereinafter referred to as
"dividend dates"). Dividends shares of any cumulative series of Preferred
Stock shall accumulate from and after the day on which such shares are issued.
Until all accrued dividends on each series of Preferred Stock shall
have been paid through the last preceding dividend date of each such series, no
dividend or distribution shall be made to holders of Common Stock other than a
dividend payable in Common Stock of the corporation. Subject to the foregoing,
dividends payable in cash, stock, or otherwise as may be determined by the
Board of Directors may be declared and paid on the Common Stock out of the
remaining funds of the corporation legally available for the payment of
dividends. Nothing herein contained shall be deemed to limit the right of the
corporation to purchase or otherwise acquire at any time any shares of its
capital stock.
For purposes of this Article Fourth, the amount of dividends "accrued"
on any shares of any cumulative series of Preferred Stock as of any dividend
date shall be deemed to be the amount of any unpaid dividends accumulated
thereon to and including such dividend date, whether or not earned or
declared. The amount of dividends "accrued" on any noncumulative series of
Preferred Stock shall mean only those dividends declared by the Board of
Directors, unless otherwise specified for such series by the Board of Directors
pursuant to the provisions hereof.
Liquidation. Upon the voluntary or involuntary liquidation of the
corporation, before any payment or distribution of the assets of the
corporation shall be made to or set apart for the holders of the Common Stock,
the holders of Preferred Stock shall be entitled to payment of the amount of
the preference payable upon such liquidation of the corporation fixed by the
Board of Directors for the respective series. If upon any such liquidation,
such payment shall have been made in full to the holders of Preferred Stock,
the remaining assets of the corporation, or the proceeds thereof, shall be
distributed among the holders of the Common Stock ratably in accordance with
their respective holdings. If upon any such liquidation, the assets of the
corporation shall be insufficient to pay in full to the holders of the
Preferred Stock the preferential amount as aforesaid, then such assets, or the
proceeds thereof, shall be distributed among the holders of each series of
Preferred Stock ratably in accordance with the sum which would be payable on
such distribution if all sums payable were discharged in full. The voluntary
sale, conveyance, exchange or transfer of all or substantially all of the
property and assets of the corporation, the merger or consolidation of the
corporation into or with any other corporation, or the merger of any other
corporation into it, shall not be deemed to be a liquidation of the corporation
for the purpose hereof.
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Voting Rights. The Common Stock shall have exclusive voting power,
except as required by law and except to the extent the Board of Directors
shall, at the time any series of Preferred Stock is established, determine that
the shares of such series shall vote (i) together as a single class with shares
of Common Stock, and/or with shares of Preferred Stock (or one or more other
series thereof) on all or certain matters presented to the stockholders and/or
upon the occurrence of any specified event or condition, and/or (ii)
exclusively on certain matters, or, upon the occurrence of any specified event
or condition, on all or certain matters. The Board of Directors, in
establishing a series of Preferred Stock and fixing the voting rights thereof,
may determine that the voting power of each share of such series may be greater
or less than the voting power of each share of Common Stock or of any other
series of Preferred Stock notwithstanding that the shares of such series of
Preferred Stock may vote as a single class with the shares of other series of
Preferred Stock and/or with the shares of Common Stock.
Common Stock. All rights, powers, preferences and privileges not
reserved to the Preferred Stock shall be in the Common Stock.
5. The board of directors is authorized to make, alter or
repeal the by-laws of the corporation. Election of directors need not be by
written ballot.
6. To the fullest extent permitted by the General Corporation Law
of the State of Delaware as the same exists or may hereafter be amended, a
director of this corporation shall not be liable to the corporation or its
stockholders for monetary damage for breach of fiduciary duty as a director.
7. From time to time any of the provisions of this Restated
Certificate of Incorporation may be amended, altered or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted in the manner and at the time prescribed by said laws,
and all rights at any time conferred upon the stockholders of the corporation
by this Restated Certificate of Incorporation are granted subject to the
provisions of this Article 7.
IN WITNESS WHEREOF, LASER VISION CENTERS, INC. has caused this Restated
Certificate of Incorporation to be executed by John J. Klobnak, its President
and attested by Mark Blumenthal, M.D., its Secretary, this 5 day of April,
1990.
LASER VISION CENTERS, INC.
By: /s/ John J. Klobnak
--------------------------
John J. Klobnak, President
Attest:
/s/ Mark Blumenthal
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Mark Blumenthal, M.D., Secretary
<PAGE> 1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
LASER VISION CENTERS, INC.
LASER VISION CENTERS, INC., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That each member of the Board of Directors of Laser Vision
Centers, Inc. (the "Corporation") has given written consent to the adoption of
a resolution setting forth proposed amendments to the Certificate of
Incorporation of the Corporation and declaring said amendment advisable and
calling for the presentation of said proposed amendment to the voting
stockholders of the Corporation for consideration thereof and written consent
thereto. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Board of Directors of the Corporation deems advisable
and proposes that the Certificate of Incorporation of the Corporation be
and is hereby amended by amending Article 4 thereof to read in its
entirety as follows:
4. The total number of shares of stock which the Corporation shall have
authority to issue is 51,000,000 shares consisting of 1,000,000 shares of
Preferred Stock, having a par value of $.01 per share ("Preferred Stock"),
and 50,000,000 shares of Common Stock, having a par value of $.01 per
share ("Common Stock").
The Preferred Stock may consist of one or more series. The Board of
Directors may, from time to time, establish and designate the different
series and the variations in the relative rights and preferences as
between the different series, but in all other respects, if any, all
shares of the Preferred Stock shall be identical. In the event that at
any time the Board of Directors shall have established and designated one
or more series of Preferred Stock consisting of a number of shares less
than all of the authorized number of shares of Preferred Stock, the
remaining authorized shares of Preferred Stock shall be deemed to be
shares of an undesignated series of Preferred Stock until designated by
the Board of Directors as being a part of a series previously established
or a new series then being established by the Board of Directors.
Subject to the provisions hereof, the Board of Directors is
authorized to establish one or more series of Preferred Stock and, to the
extent now or hereafter permitted by the laws of the State of Delaware, to
fix and determine the preferences, voting powers, qualifications and
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special or relative rights or privileges of each series including, but not
limited to:
(a) the number of shares to constitute such series and the distinctive
designation thereof;
(b) the dividend rate and preferences, if any, on the shares of such
series and the special and relative rights of such shares of such
series as to dividends;
(c) whether or not the shares of such series shall be redeemable, and, if
redeemable, the price, terms and manner of redemption;
(d) the preferences, if any, and the special and relative rights of the
shares of such series upon liquidation of the Corporation;
(e) whether or not the shares of such series shall be convertible into
shares of any other class or of any other series of the same or any
other class of stock of the Corporation and, if so, the conversion
price or ratio and other conversion rights;
(f) the conditions under which the shares of such series shall have
separate or special voting rights or no voting rights; and
(g) such other designations, preferences and relative, participating,
optional or other special rights and qualifications, limitations or
restrictions of such series to the full extent now and hereafter
permitted by the laws of the State of Delaware.
Notwithstanding the fixing of the number of shares constituting a particular
series, the Board of Directors may at any time authorize the issuance of
additional shares of the same series (as long as the aggregate number of shares
of all series does not exceed the number of authorized shares of Preferred Stock
hereunder).
Dividends. Holders of Preferred Stock shall be entitled to receive, when
and as declared by the Board of Directors, but only out of funds legally
available for the payment of dividends, cash dividends at the rates fixed by the
Board of Directors for the respective series, payable on such dates in each
year as the Board of Directors shall fix for the respective series as provided
above (hereinafter referred to as "dividend dates"). Dividends on shares of
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any cumulative series of Preferred Stock shall accumulate from and after the
day on which such shares are issued.
Until all accrued dividends on each series of Preferred Stock shall have been
paid through the last preceding dividend date of each such series, no dividend
or distribution shall be made to holders of Common Stock other than a dividend
payable in Common Stock of the Corporation. Subject to the foregoing,
dividends payable in cash, stock, or otherwise as may be determined by the
Board of Directors may be declared and paid on the Common Stock out of the
remaining funds of the Corporation legally available for the payment of
dividends. Nothing herein contained shall be deemed to limit the right of the
Corporation to purchase or otherwise acquire at any time any shares of its
capital stock.
For purposes of this Article Fourth, the amount of dividends "accrued" on any
dividend date shall be deemed to be the amount of any unpaid dividends
accumulated thereon to and including such dividend date, whether or not earned
or declared. The amount of dividends "accrued" on any noncumulative
series of Preferred Stock shall mean only those dividends declared by the Board
of Directors, unless otherwise specified for such series by the Board of
Directors pursuant to the provisions hereof.
Liquidation. Upon the voluntary or involuntary liquidation of the
Corporation, before any payment or distribution of the assets of the
Corporation shall be made to or set apart for the holders of the Common Stock,
the holders of Preferred Stock shall be entitled to a payment of the amount of
the preference payable upon such liquidation of the Corporation fixed by the
Board of Directors for the respective series. If upon any such liquidation,
such payment shall have been made in full to the holders of Preferred Stock,
the remaining assets of the Corporation, or the proceeds thereof, shall be
distributed among the holders of the Common Stock ratably in accordance with
their respective holdings. If upon any such liquidation, the assets of the
Corporation shall be insufficient to pay in full to the holders of the
Preferred Stock the preferential amount as aforesaid, then such assets, or the
proceeds thereof, shall be distributed among the holders of each series of
Preferred Stock ratably in accordance with the sums which would be payable on
such distribution if all sums payable were discharged in full. The voluntary
sale, conveyance, exchange or transfer of all or substantially all of the
property and assets of the Corporation, the merger or consolidation of the
Corporation into or with any other corporation, or the merger of any other
corporation into it,
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shall not be deemed to be a liquidation of the Corporation for the purpose
hereof.
Voting Rights. The Common Stock shall have exclusive power, except as
required by law and except to the extent the Board of Directors shall, at the
time any series of Preferred Stock is established, determine that the shares of
such series shall vote (i) together as a single class with shares of Common
Stock, and/or with shares of Preferred Stock (or one or more other series
thereof) on all or certain matters presented to the stockholders and/or upon the
occurrence of any specified event or condition, and/or (ii) exclusively on
certain matters, or, upon the occurrence of any specified event or condition, on
all or certain matters. The Board of Directors, in establishing a series of
Preferred Stock and fixing the voting rights thereof, may determine that the
voting power of each share of such series may be greater or less than the voting
power of each share of Common Stock or of any other series of Preferred Stock
notwithstanding that the shares of such series of Preferred Stock may vote as a
single class with the shares of other series of Preferred Stock and/or with the
shares of Common Stock.
Common Stock. All rights, powers, preferences and privileges not reserved
to the Preferred Stock shall be in the Common Stock.
FURTHER RESOLVED, that the Board of Directors of Laser Vision Centers, Inc.
deems advisable and proposes that the Certificate of Incorporation of the
Corporation be and is hereby amended by adding an Article 8 as follows:
(1) Except as set forth in Section (2) of this Article 8:
(a) Any merger or consolidation of the Corporation or any of its
subsidiaries with or into any other corporation, or
(b) Any sale, lease, exchange or other disposition of all or
substantially all of the property and assets of the Corporation or
any of its subsidiaries to or with any other corporation, person or
other entity, or
(c) Any sale, lease, exchange or other disposition to the Corporation or
any of its subsidiaries of any assets, cash, securities or other
property of any other corporation, person or other entity in exchange
for securities of the Corporation or any of its subsidiaries
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shall require the affirmative vote of the holders of shares representing (i) at
least eighty percent (80%) of all classes of stock of the Corporation entitled
to vote in the election of directors, considered for the purposes of this
Article 8 as one class, and (ii) at least a majority of all such classes of
stock of the Corporation, considered for the purposes of this Article 8 as one
class, which are not beneficially owned, directly or indirectly, by such other
corporation, person or other entity, if as of the record date for the
determination of shareholders entitled to notice thereof and to vote thereon,
such other corporation, person or other entity is the beneficial owner, directly
or indirectly, of shares possessing ten percent (10%) or more of the votes of
the outstanding shares of stock of the Corporation entitled to vote in the
election of directors, considered for the purposes of this Article 8 as one
class. Such affirmative vote, as provided in this Article 8, shall be in lieu of
any lesser vote of the holders of the stock of the Corporation otherwise
provided by law or any agreement or contract to which the Corporation is a
party, and shall be in addition to any class vote to which any class of stock of
the Corporation may be entitled.
(2) The provisions of this Article 8 shall not apply to any transaction
described in clauses (a), (b) or (c) of Section (1) of this Article 8 if:
(a) The Board of Directors of the Corporation shall have approved such
transaction prior to the time that such corporation, person or other
entity became the beneficial owner, directly or indirectly, of shares
possessing ten percent (10%) or more of the votes of all the
outstanding shares of stock of the Corporation entitled to vote in the
election of directors, or
(b) A majority of the outstanding shares of stock of such other
corporation is owned of record or beneficially, directly or
indirectly, by the Corporation or its subsidiaries.
(3) For the purpose of this Article 8, and without limiting the definition of
"benefical owner" or "beneficially own", any corporation, person or other
entity shall be deemed to be the "beneficial owner" of or to "beneficially
own" any share of stock of the Corporation (a) which it has the right to
acquire either immediately or at some future date pursuant to any
agreement, or upon exercise of coversion rights, warrants or options, or
otherwise, or (b) which is "beneficially owned," directly or indirectly
(including
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shares deemed owned through application of the foregoing clause (a) of
this Section (3)), by any other corporation, person or other entity
either with which it or its "affiliate" or "associate" has any
agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of stock of the Corporation, or which is
its "affiliate" or "associate" as those terms are defined in Rule
12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934 as in effect from time to time or any successor
provision. Also for purposes of this Article 8, the "outstanding"
shares of any class of stock of the Corporation shall include shares
deemed owned through the application of the foregoing clauses (a) and
(b) of this Section (3), but shall not include any other shares which
may be issuable either immediately or at some future date pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise; and the term "substantially all of the property
and assets of the Corporation or any of its subsidiaries' shall mean
those properties and assets involved in any single transaction or
series of related transactions having an aggregate fair market value
of more than a majority of the total consolidated assets of the
Corporation and its subsidiaries.
The Board of Directors of the Corporation shall have the power and
duty to determine for the purposes of this Article 8, on the basis of
information known to the Corporation, whether (i) any corporation,
person or other entity "beneficially owns," directly or indirectly,
ten percent (10%) or more of the shares of stock of the Corporation
entitled to vote in the election of directors, and (ii) any
corporation, person or other entity is an "affiliate" or "associate"
of another. Any such determination made in good faith shall be
conclusive and binding for all purposes of this Article 8.
(4) No amendment to the Articles of Incorporation of the Corporation shall
amend, alter, change or repeal any of the provisions of this Article 8
unless the amendment effecting such amendment, alteration, change or
repeal shall receive the affirmative vote of eighty percent (80%) of
all classes of stock of the Corporation entitled to vote in the
election of directors, considered for purposes of this Article 8 as
one class.
(5) Nothing contained in this Article 8 shall be construed to relieve any
such beneficial owner of shares of the
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Corporation from any fiduciary obligation imposed by law.
SECOND: That thereafter, at the annual meeting of the shareholders of
Laser Vision Centers, Inc. held on September 30, 1994, the necessary number of
shares as required by statue were voted in favor of the amendments.
THIRD: That said amendments were duly adopted in accordance with the
provisions of Section 242 of The General Corporation Law of Delaware as amended,
and that the capital of Laser Vision Centers, Inc. will not be reduced under or
by reason of the amendments.
IN WITNESS WHEREOF, said Laser Vision Centers, Inc. has caused its
corporate seal to be hereto affixed and this certificate to be signed by John J.
Klobnak, its Chairman and Chief Executive Officer, and Robert W. May, its
Secretary, this 8th day of November, 1994.
LASER VISION CENTERS, INC.
By: /s/ John J. Klobnak
---------------------------
John J. Klobnak, Chairman and
Chief Executive Officer
Attest
/s/ Robert W. May
- -------------------------
Robert W. May, Secretary
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<PAGE> 1
BYLAWS
OF
LASER VISION CENTERS, INC.
(a Delaware corporation)
-------------------
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK. Certificates representing
stock in the corporation shall be signed by, or in the name of, the corporation
by the Chairman or Vice-Chairman of the Board of Directors, if any, or by the
President or a Vice-President and by the Treasurer or an Assistant Treasurer or
the Secretary of an Assistant Secretary of the corporation. Any or all the
signatures on any such certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue.
Whenever the corporation shall be authorized to issue more than
one class of stock or more than one series of any class of stock, and whenever
the corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
The corporation may issue a new certificate of stock or
uncertificated shares in place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the Board of Directors may
require the owner of the lost, stolen or destroyed certificate, or his legal
representative, to give the corporation a bond sufficient to indemnify the
corporation against any claim that may be made against it on account of the
alleged loss, theft, or destruction of any such certificate or the issuance of
any such new certificate or uncertificated shares.
2. UNCERTIFICATED SHARES. Subject to any conditions imposed
by the General Corporation Law, the Board of Directors of
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the corporation may provide by resolution or resolutions that some or all of
any or all classes or series of the stock of the corporation shall be
uncertificated shares. Within a reasonable time after the issuance or transfer
of any uncertificated shares, the corporation shall send to the registered
owner thereof any written notice prescribed by the General Corporation Law.
3. FRACTIONAL SHARE INTERESTS. The corporation may, but shall not
be required to, issue fractions of a share. If the corporation does not issue
fractions of a share, it shall (1) arrange for the disposition of fractional
interests by those entitled thereto, (2) pay in cash the fair value of
fractions of a share as of the time when those entitled to receive such
fractions are determined, or (3) issue scrip or warrants in registered form
(either represented by a certificate or uncertificated) or bearer form
(represented by a certificate) which shall entitle the holder to receive a full
share upon the surrender of such scrip or warrants aggregating a full share. A
certificate for a fractional share or an uncertificated fractional share shall,
but scrip or warrants shall not unless otherwise provided therein, entitle the
holder to exercise voting rights, to receive dividends thereon, and to
participate in any of the assets of the corporation in the event of
liquidation. The Board of Directors may cause scrip or warrants to be issued
subject to the conditions that they shall become void if not exchanged for
certificates representing the full shares or uncertificated full shares before
a specified date, or subject to the conditions that the shares for which scrip
or warrants are exchangeable may be sold by the corporation and the proceeds
thereof distributed to the holders of scrip or warrants, or subject to any
other conditions which the Board of Directors may impose.
4. STOCK TRANSFERS. Upon compliance with provisions restricting
the transfer or registration of transfer of shares of stock, if any, transfers
or registration of transfers of shares of stock of the corporation shall be
made only on the stock ledger of the corporation by the registered holder
thereof, or by his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary of the corporation or with a transfer
agent or a registrar, if any, and, in the case of shares represented by
certificates, on surrender of the certificate or certificates for such shares
of stock properly endorsed and the payment of all taxes due thereon.
5. RECORD DATE FOR STOCKHOLDERS. 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, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than ten
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days before the date of such meeting. If no record date is fixed by the Board
of Directors, 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. 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. In order that the corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board
of Directors, and which date shall not be more than ten days after the
date upon which the resolution fixing the record date is adopted by the Board
of Directors. If no record date has been fixed by the Board of Directors, the
record date for determining the stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is required by the General Corporation Law, shall be the first date
on which a signed written consent setting forth the action taken or proposed to
be taken is 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 shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the Board of Directors
and prior action by the Board of Directors is required by the General
Corporation law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the Board of Directors adopts the resolution
taking such prior action. In order that the corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion, or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty days
prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto.
6. MEANING OF CERTAIN TERMS. As used herein in respect of the right to
notice of a meeting of stockholders or a
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waiver thereof or to participate or vote thereat or to consent or dissent in
writing in lieu of a meeting, as the case may be, the term "share" or "shares"
or "share of stock" or "shares of stock" or "stockholder" or "stockholders"
refers to an outstanding share or shares of stock and to a holder or holders of
record of outstanding shares of stock when the corporation is authorized to
issue only one class of shares of stock, and said reference is also intended to
include any outstanding share or shares of stock and any holder or holders of
record of outstanding shares of stock of any class upon which or upon whom the
certificate of incorporation confers such rights where there are two or more
classes or series of shares of stock or upon which or upon whom the General
Corporation law confers such rights notwithstanding that the certificate of
incorporation may provide for more than one class or series of shares of stock,
one or more of which are limited or denied such rights thereunder; provided,
however, that no such right shall vest in the event of an increase or a
decrease in the authorized number of shares of stock of any class or series
which is otherwise denied voting rights under the provisions of the certificate
of incorporation, except as any provision of law may otherwise require.
7. STOCKHOLDER MEETINGS.
- TIME. The annual meeting shall be held on the date and at the time
fixed, from time to time, by the directors, provided, that the first annual
meeting shall be held on a date within thirteen months after the organization
of the corporation, and each successive annual meeting shall be held on a date
within thirteen months after the date of the preceding annual meeting. The
special meeting shall be held on the date and at the time fixed by the
directors.
- PLACE. Annual meetings and special meetings shall be held at such
place, within or without the State of Delaware, as the directors may, from
time to time, fix. Whenever the director shall fail to fix such
place, the meeting shall be held at the registered office of the corporation in
the State of Delaware.
- CALL. Annual meetings and special meetings may be called by the
directors or by any officer instructed by the directors to call the meeting.
Special meetings may also be called by the holders of 10% of the outstanding
shares of common stock of the corporation.
- NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be
given, stating the place, date, and hour of the meeting and stating the place
within the city or other municipality or community at which the list of
stockholders of the corporation may be examined. The notice of an annual
meeting shall state that the meeting is called for the election of directors
and for the transaction of other business which may properly come before the
meeting, and shall (if any other action
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which could be taken at a special meeting is to be taken at such annual
meeting) state the purpose or purposes. The notice of a special meeting shall
in all instances state the purpose or purposes for which the meeting is called.
The notice of any meeting shall also include, or be accompanied by, any
additional statement, information, or documents prescribed by the General
Corporation Law. Except as otherwise provided by the General Corporation Law,
a coy of the notice of any meeting shall be given, personally or by mail, not
less than ten days nor more than sixty days before the date of the meeting,
unless the lapse of the prescribed period of time shall have been waived, and
directed to each stockholder at his record address or at such other address
which he may have furnished by request in writing to the Secretary of the
corporation. Notice by mail shall be deemed to be given when deposited, with
postage thereon prepaid, in the United States Mail. If a meeting is adjourned
to another time, not more than thirty days hence, and/or to another place; and
if an announcement of the adjourned time and/or place is made at the meeting,
it shall not be necessary to give notice of the adjourned meeting unless the
directors, after adjournment, fix a new record date for the adjourned meeting.
Notice need not be given to any stockholder who submits a written waiver of
notice signed by him before or after the time stated therein. Attendance of a
stockholder at a meeting of stockholders shall constitute a waiver of notice of
such meeting, except when the stockholder attends the meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders need be specified in any written waiver of notice.
- STOCKHOLDER LIST. The officer who has charge of the stock ledger of
the corporation shall prepare and make, at least ten days before every meeting
of stockholders, a complete list of the stockholders, arranged in alphabetical
order, and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of a least ten days prior to the meeting,
either at a place within the city or other municipality or community where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the corporation, or to vote at any meeting of
stockholders.
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- CONDUCT OF MEETING. Meetings of the stockholders shall be presided
over by one of the following officers in the order of seniority and if present
and acting - the Chairman of the Board, if any, the Vice-Chairman of the Board,
if any, the President, a Vice-President, or, if none of the foregoing is in
office and present and acting, by a chairman to be chosen by the stockholders.
The Secretary of the corporation, or in his absence, an Assistant Secretary,
shall act as secretary of every meeting, but if neither the Secretary nor an
Assistant Secretary is present the Chairman of the meeting shall appoint a
secretary of the meeting.
- PROXY REPRESENTATION. Every stockholder may authorize another person
or persons to act for him by proxy in all matters in which a stockholder is
entitled to participate, whether by waiving notice of any meeting, voting or
participating at a meeting, or expressing consent or dissent without a meeting.
Every proxy must be signed by the stockholder or by his attorney-in-fact. No
proxy shall be voted or acted upon after three years from its date unless such
proxy provides for a longer period. A duly executed proxy shall be irrevocable
if it states that it is irrevocable and, if, and only as long as, it is coupled
with an interest sufficient in law to support an irrevocable power. A proxy may
be made irrevocable regardless of whether the interest with which it is coupled
is an interest in the stock itself or an interest in the corporation generally.
- INSPECTORS. The directors, in advance of any meeting, may, but need
not, appoint one or more inspectors of election to act at the meeting or any
adjournment thereof. If an inspector or inspectors are not appointed, the
person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the directors in
advance of the meeting or at the meeting by the person presiding thereat. Each
inspector, if any, before entering upon the discharge of his duties, shall take
and sign an oath faithfully to execute the duties of inspectors at such meeting
with strict impartiality and according to the best of his ability. The
inspectors, if any, shall determine the number of shares of stock outstanding
and the voting power of each, the shares of stock represented at the meeting,
the existence of a quorum, 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 result, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the inspector or inspectors, if
any, shall make a report
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in writing of any challenge, question, or matter determined by him or them and
execute a certificate of any fact found by him or them.
- QUORUM. The holders of a majority of the outstanding shares of
stock shall constitute a quorum at a meeting of stockholders for the
transaction of any business. The stockholders present may adjourn the meeting
despite the absence of a quorum.
- VOTING. Each share of stock shall entitle the holders thereof
to one vote. Directors shall be elected by a plurality of the votes of the
shares present in person or represented by proxy at the meeting and entitled to
vote on the election of directors. Any other action shall be authorized by a
majority of the votes cast except where the General Corporation Law prescribes
a different percentage of votes and/or a different exercise of voting power,
and except as may be otherwise prescribed by the provisions of the certificate
of incorporation and these Bylaws. In the election of directors, and for any
other action, voting need not be by ballot.
8. STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by
the General Corporation Law to be taken at any annual or special meeting of
stockholders, or any action which may 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. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing. Action taken pursuant to this
paragraph shall be subject to the provisions of Section 228 of the General
Corporation Law.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The business and affairs of the
corporation shall be managed by or under the direction of the Board of
Directors of the corporation. The Board of Directors shall have the authority
to fix the compensation of the members thereof. The use of the phrase "whole
board" herein refers to the total number of directors which the corporation
would have if there were no vacancies.
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2. QUALIFICATIONS AND NUMBER. A director need not be a
stockholder, a citizen of the United States, or a resident of the State of
Delaware. The number of directors constituting the whole board shall be at
least one. Subject to the foregoing limitation and except for the first Board
of Directors, such number may be fixed from time to time by action of the
stockholders or of the directors, or, if the number is not fixed, the number
shall be one. The number of directors may be increased or decreased by action
of the stockholders or of the directors.
3. ELECTION AND TERM. The first Board of Directors, unless the
members thereof shall have been named in the certificate of incorporation,
shall be elected by the incorporator or incorporators and shall hold office
until the first annual meeting of stockholders and until their successors are
elected and qualified or until their earlier resignation or removal. Any
director may resign at any time upon written notice to the corporation.
Thereafter, directors who are elected at an annual meeting of stockholders, and
directors who are elected in the interim to fill vacancies and newly created
directorships, shall hold office until the next annual meeting of stockholders
and until their successors are elected and qualified or until their earlier
resignation or removal. Except as the General Corporation law may otherwise
require, in the interim between annual meetings of stockholders or of special
meetings of stockholders called for the election of directors and/or for the
removal of one or more directors and for the filling of any vacancy in that
connection, newly created directorships and any vacancies resulting from the
removal of directors for cause or without cause, may be filled by the vote of a
majority of the remaining directors then in office, although less than a
quorum, or by the sole remaining directors.
4. MEETINGS.
-TIME. Meetings shall be held at such time as the Board shall fix,
except that the first meeting of a newly elected Board shall be held as soon
after its election as the directors may conveniently assemble.
-PLACE. Meetings shall be held at such place within or without the
State of Delaware as shall be fixed by the Board.
-CALL. No call shall be required for regular meetings for which the
time and place have been fixed. Special meetings may be called by or at the
direction of the Chairman of the Board, if any, the Vice-Chairman of the Board,
if any, of the President, or of a majority of the directors in office.
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- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral, or any other mode of notice of the time and place shall be
given for special meetings in sufficient time for the convenient assembly of
the directors thereat. Notice need not be given to any director or to any
member of a committee of directors who submits a written waiver of notice
signed by him before or after the time stated therein. Attendance of any such
person at a meeting shall constitute a waiver of notice of such meeting, except
when he attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
directors need be specified in any written waiver of notice.
- QUORUM AND ACTION. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents such majority,
whereupon a majority of the directors in office shall constitute a quorum,
provided, that such majority shall constitute at least one-third of the whole
Board. A majority of the directors present, whether or not a quorum is
present, may adjourn a meeting to another time and place. Except as herein
otherwise provided, and except as otherwise provided by the General Corporation
Law, the vote of the majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board. The quorum and voting
provisions herein stated shall not be construed as conflicting with any
provisions of the General Corporation Law and these Bylaws which govern a
meeting of directors held to fill vacancies and newly created directorships in
the Board or action of disinterested directors.
Any member or members of the Board of Directors or of any
committee designated by the Board, may participate in a meeting of the Board,
or any such committee, as the case may be, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other.
- CHAIRMAN OF THE MEETING. The Chairman of the Board, if any
and if present and acting, shall preside at all meetings. Otherwise, the
Vice-Chairman of the Board, if any and if present and acting, or the President,
if present and acting, or any other director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS. Except as may otherwise be provided
by the General Corporation Law, any director or the entire Board of Directors
may be removed, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors.
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6. COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
the absence or disqualification of any member of any such committee or
committees, the member or members thereof 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. Any such
committee, to the extent provided in the resolution of the Board, shall have and
may exercise the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation with the exception of
any authority the delegation of which is prohibited by Section 141 of the
General Corporation Law, and may authorize the seal of the corporation to be
affixed to all papers which may require it.
7. WRITTEN ACTION. Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
ARTICLE III
OFFICERS
The officers of the corporation shall consist of a President, a
Secretary, a Treasurer, and, if deemed necessary, expedient, or desirable by the
Board of Directors, a Chairman of the Board, a Vice-Chairman of the Board, an
Executive Vice-President, one or more other Vice-Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, and such other officers
with such titles as the resolution of the Board of Directors choosing them
shall designate. Except as may otherwise be provided in the resolution of the
Board of Directors choosing him, no officer other than the Chairman or
Vice-Chairman of the Board, if any, need be a director. Any number of offices
may be held by the same person, as the directors may determine.
Unless otherwise provided in the resolution choosing him, each officer
shall be chosen for a term which shall continue until the meeting of the Board
of Directors following the next annual meeting of stockholders and until his
successor shall have been chosen and qualified.
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All officers of the corporation shall have such authority and
perform such duties in the management and operation of the corporation as shall
be prescribed in the resolutions of the Board of Directors designating and
choosing such officers and prescribing their authority and duties, and shall
have such additional authority and duties as are incident to their office
except to the extent that such resolutions may be inconsistent therewith. The
Secretary or an Assistant Secretary of the corporation shall record all of the
proceedings of all meetings and actions in writing of stockholders, directors,
and committees of directors, and shall exercise such additional authority and
perform such additional duties as the Board shall assign to him. Any officer
may be removed, with or without cause, by the Board of Directors. Any vacancy
in any office may be filled by the Board of Directors.
ARTICLE IV
CORPORATE SEAL
The corporate seal shall be in such form as the Board of
Directors shall prescribe.
ARTICLE V
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall be
subject to change, by the Board of Directors.
ARTICLE IV
CONTROL OVER BYLAWS
Subject to the provisions of the certificate of incorporation
and the provisions of the General Corporation Law, the power to amend, alter,
or repeal these Bylaws and to adopt new Bylaws may be exercised by the Board of
Directors or by the stockholders.
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