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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
SOFTLOCK.COM, INC.
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(Exact name of registrant as specified in its charter)
Delaware 84-1130229
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(State of Incorporation or Organization) (IRS Employer Identification No.)
Five Clock Tower Place, Suite 440, Maynard MA 01754
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(Address of principal executive offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. | |
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. |X|
Securities Act registration statement file number to which this form
relates: N/A
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(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which each class is
to be so registered to be registered
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N/A N/A
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Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock
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Title of Class
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
SoftLock.com, Inc. ("SoftLock" or the "Company") was incorporated under
the name Fieldcrest Corporation in the State of Delaware in December 1989.
Subsequent to a reverse acquisition of SoftLock Services, Inc., the Company
changed its name from Fieldcrest Corporation to SoftLock.com, Inc. to better
reflect the ongoing business of the Company.
The authorized capital stock of SoftLock consists of 50,000,000 shares
of common stock, par value $.01 per share, and 5,000,000 shares of preferred
stock, par value $.01 per share.
COMMON STOCK
As of March 14, 2000, there were 12,862,841 shares of common stock
outstanding and held of record by stockholders.
Voting Rights. Holders of common stock are entitled to one vote for
each share held on all matters submitted to a vote of stockholders and do not
have cumulative voting rights.
Dividend Rights. Holders of common stock are entitled to receive
ratably those dividends, if any, as may be declared by the board of directors
out of funds legally available therefor, subject to any preferential dividend
rights of any outstanding preferred stock.
Liquidation Rights. Upon the liquidation, dissolution or winding up of
SoftLock, the holders of common stock are entitled to receive ratably the net
assets of SoftLock available after the payment of all debts and other
liabilities and subject to the prior rights of any outstanding preferred stock.
Other Rights; Effect of Preferred Stock Issuances. Holders of the
common stock have no preemptive, subscription, redemption or conversion rights.
The outstanding shares of common stock are, when issued in consideration for
payment thereof, fully paid and nonassessable. The rights, preferences and
privileges of holders of common stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any series of preferred
stock which SoftLock may designate and issue in the future.
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This Form 8-A only registers the common stock of the Company. Since the rights
of the common stock may be materially limited by the issuance of preferred
stock, the following information regarding the Company's preferred stock is
given.
PREFERRED STOCK
The board of directors of SoftLock is authorized, without further
stockholder approval, to issue from time to time up to an aggregate of 5,000,000
shares of preferred stock in one or more series and to fix or alter the
designation, powers, preferences and rights of each such series and the
qualifications, limitations or restrictions thereof, including the dividend
rights, dividend rates, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), redemption price or prices, and
liquidation preferences of any wholly unissued series of preferred stock and to
establish from time to time the number of shares constituting any series or
designations of series and to increase and decrease the number of shares of any
series subsequent to the issuance of shares of that series, but not below the
number of shares of such series then outstanding.
The ability of the board of directors to establish the rights of and to
issue substantial amounts of preferred stock without the need for stockholder
approval, while providing desirable flexibility in connection with raising
capital, possible acquisitions or other corporate purposes, may have the effect
of discouraging, delaying or preventing a change in control.
Series A Preferred Stock. SoftLock has issued 53,431 shares of Series A
Preferred Stock (the "Series A Preferred") to a group of five investors. The
description of the Series A Preferred set forth in Item 5 of the Company's
Current Report on Form 8-K dated as of December 30, 1999 is hereby incorporated
by reference.
Series B Preferred Stock. SoftLock has issued 46,875 shares of Series B
Preferred Stock (the "Series B Preferred") to a group of ten investors. The
description of the Series B Preferred set forth in Item 5 of the Company's
Current Report on Form 8-K dated as of February 10, 2000 is hereby incorporated
by reference. In connection with the issuance and sale of the Series B
Preferred, the Company issued two warrants to the Series B investors, each of
which allows the purchase of an aggregate of 312,500 shares of the Company's
common stock for an exercise price of $.90 per share. One warrant becomes
exercisable on August 15, 2000 if as of that date the Company's registration
statement filed for the shares of common stock issuable upon conversion of the
Series B Preferred Stock and exercise of the warrants (the "Series B
Registration Statement") has not been declared effective and the Nasdaq listing
application for the common stock has not been accepted. The second warrant
becomes exercisable on November 15, 2000 if as of that date the Series B
Registration Statement has not been declared effective and the Nasdaq listing
application has been accepted. The warrants automatically terminate if they have
not become exercisable as of August 15, 2000 and November 15, 2000,
respectively. If the warrants become exercisable, they will expire as of
February 10, 2005. The number of shares of common stock for which each warrant
is exercisable and the purchase price therefor is subject to adjustment for
stock dividends, subdivisions and combinations.
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ANTI-TAKEOVER EFFECTS OF VARIOUS PROVISIONS OF DELAWARE LAW AND SOFTLOCK'S
CERTIFICATE OF INCORPORATION AND BYLAWS
SoftLock is subject to the provisions of Section 203 of the Delaware
General Corporation Law. Subject to some exceptions, Section 203 prohibits a
publicly held Delaware corporation from engaging in a "business combination"
with an "interested stockholder" for a period of three years after the date of
the transaction in which the person became an interested stockholder, unless the
interested stockholder attained that status with the approval of the board of
directors or unless the business combination is approved in a prescribed manner.
A "business combination" includes mergers, asset sales and other transactions
resulting in a financial benefit to the interested stockholder. Subject to
various exceptions, an "interested stockholder" is a person who, together with
affiliates and associates, owns, or within three years did own, 15% or more of
the corporation's voting stock. This statute could prohibit or delay the
accomplishment of mergers or other takeover or change in control attempts with
respect to SoftLock and, accordingly, may discourage attempts to acquire
SoftLock.
In addition, various provisions of SoftLock's Amended and Restated
Certificate of Incorporation (the "Certificate") and bylaws, which provisions
are summarized in the following paragraphs, may be deemed to have an
anti-takeover effect and may delay, defer or prevent a tender offer or takeover
attempt that a stockholder might consider in its best interest, including those
attempts that might result in a premium over the market price for the shares
held by stockholders.
Classification of the Board of Directors. The Certificate provides that
the directors of SoftLock are divided into 3 classes serving 3 year terms.
Removal of Directors. The Certificate provides that any director or the
entire board of directors may be removed only for cause and by the affirmative
vote of the holders of at least 66 2/3% of the voting power of all then
outstanding shares of the voting stock. This may deter a stockholder from
removing incumbent directors and simultaneously gaining control of the board of
directors by filling the vacancies created by this removal with its own
nominees.
Stockholder Action; Special Meeting of Stockholders. The Certificate
provides that stockholders may not take action by written consent. The Bylaws
further provide that special meetings of stockholders of SoftLock may be called
by stockholders entitled to cast 25% of all votes entitled to be cast at the
meeting who have requested the meeting in writing and have delivered the request
to the Company. The request must include various additional information about
the requesting stockholders and the matters to be considered at the meeting. The
requesting stockholders are also required to pay SoftLock its reasonable
estimated costs of preparing and mailing the notice of meeting. Furthermore, no
special meeting may be called to consider any matter which is substantially the
same as a matter voted on at any special meeting of stockholders held during the
prior 12 months unless the meeting is requested by stockholders entitled to cast
a majority of all votes entitled to be cast at the meeting.
Advance Notice Requirements for Stockholder Proposals for Annual
Meetings and Director Nominations. SoftLock's bylaws provide that stockholders
seeking to bring business
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before an annual meeting of stockholders, or to nominate candidates for election
as directors, must provide timely notice thereof in writing and must be a
stockholder of record of a class of securities entitled to vote on the business
the stockholder is proposing both at the time of giving the notice and on the
record date for the annual meeting. A stockholder's notice must be given by
certified U.S. Mail postage prepaid and return receipt requested and addressed
to SoftLock's Secretary at its principal executive offices. To be timely in the
case of a stockholder proposal, the notice must be received not less than 120
days prior to the anniversary of the date of SoftLock's notice of annual meeting
for the previous year's annual stockholders meeting, unless the date of the
annual stockholders meeting has been changed to be more than 30 calendar days
from the date of the prior year's meeting, in which case such notice by the
stockholder must be received 60 days prior to the annual meeting of
stockholders. To be timely in the case of a director nomination, the
stockholder's notice must be received not less than 120 days prior to the
anniversary of the date of SoftLock's notice of annual meeting for the previous
year's annual meeting of stockholders (i) on or after April 1st and before May
1st of the year in which the meeting will be held if the meeting is to be an
annual meeting and clause (ii) is not applicable, or (ii) not less than sixty
(60) days before an annual meeting, if the date of the annual meeting has been
changed by more than thirty (30) days or (iii) not later than the close of
business on the tenth day following the day on which notice of a special meeting
of stockholders called for that purpose of electing directors is first given to
stockholders. The bylaws also specify certain requirements as to the form and
content of the stockholder's notice. These provisions may preclude stockholders
from bringing matters before an annual meeting of stockholders or from making
nominations for directors.
Authorized but Unissued Shares. The authorized but unissued shares of
common stock and preferred stock of the Company are available for future
issuance without stockholder approval, subject to various limitations as may be
imposed by the securities exchange or quotation system on which the shares are
listed. These additional shares may be utilized for a variety of corporate
purposes, including future offerings to raise additional capital, corporate
acquisitions and employee benefit plans. The existence of authorized but
unissued and unreserved common stock and preferred stock could make more
difficult or discourage an attempt to obtain control of SoftLock by means of a
proxy contest, tender offer, merger or otherwise.
Supermajority Vote on Certain Matters. The Delaware General Corporation
Law provides generally that the affirmative vote of a majority of the shares
entitled to vote on any matter is required to amend a corporation's certificate
of incorporation or bylaws, unless a corporation's certificate of incorporation
or bylaws, as the case may be, requires a greater percentage. The Certificate
requires the affirmative vote of the holders of at least 66 2/3% of the voting
power of all the then outstanding shares of voting stock, voting as a single
class, to alter or amend Article 5 (on the Board of Directors), Article 6
(establishing such supermajority requirement), Article 8 (reserving to the
Company the right to amend or repeal the Certificate) or Article 9 (limiting
liability and providing for indemnification of directors, officers and
employees) of the Certificate.
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TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock is Corporate
Stock Transfer, Inc.
ITEM 2. EXHIBITS.
1. The Company's Amended and Restated Certificate of Incorporation,
incorporated by reference to the Exhibit 3(i) of the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
1999.
2. The Company's Certificate of Designation of Powers, Preferences and
Rights of the Series A Preferred Stock, incorporated by reference to
Exhibit 99.4 of the Company's Current Report on Form 8-K dated
December 30, 1999.
3. The Company's Amendment No. 1 to Certificate of Designation of Powers,
Preferences and Rights of the Series A Preferred Stock, incorporated
by reference to Exhibit 99.2 of the Company's Current Report on Form
8-K dated February 10, 2000.
4. The Company's Certificate of Correction to Certificate of Designation
of Powers, Preferences and Rights of the Series B Preferred Stock,
incorporated by reference to Exhibit 99.5 of the Company's Current
Report on Form 8-K dated February 10, 2000.
5. The Company's Amended Bylaws.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934,the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
SOFTLOCK.COM, INC.
Dated: March 15, 2000 By: /s/ Douglas R. Johnson
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Douglas R. Johnson
Executive Vice President and Chief
Financial Officer
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Exhibit 5
BYLAWS
OF
SOFTLOCK.COM, INC.
ARTICLE I
SHAREHOLDER MEETINGS
SECTION 1.1. ANNUAL MEETING. The annual meeting of the shareholders
shall be held within the six (6) calendar months following the end of each
fiscal year of SoftLock.com, Inc. (the "Corporation"), at such date and hour as
may be fixed by the Board of Directors (the "Board"), for the election of
directors and for the transaction of such other business as may properly be
brought before the meeting. At each annual meeting of shareholders, only such
business shall be conducted as is proper to consider and has been brought before
the meeting (i) pursuant to the Corporation's notice of the meeting, (ii) by or
at the direction of the Board of Directors, or (iii) by a shareholder who is a
shareholder of record of a class of shares entitled to vote on the business such
shareholder is proposing both at the time of the giving of the shareholder's
notice hereinafter described in Section 1.2 hereof and on the record date for
such annual meeting, and who complies with the notice procedures set forth in
Section 1.4 hereof.
SECTION 1.2. SHAREHOLDER PROPOSALS FOR ANNUAL MEETING.
(a) In order to bring before an annual meeting of shareholders
any business which may properly be considered, a shareholder who meets the
requirements set forth in the preceding paragraph must give the Corporation
timely written notice which complies with Section 1.4 of these bylaws. To be
timely, a shareholder's notice must be given, by certified United States mail,
with postage thereon prepaid and with return receipt requested, addressed to the
Secretary at the principal office of the Corporation. Any such notice must be
received at the Corporation's principal office not less than one hundred twenty
(120) calendar days in advance of the anniversary of the date on which the
Corporation's proxy statement was released to its shareholders in connection
with the previous year's annual meeting of shareholders, unless the date of the
meeting to which such notice relates has been changed by more than thirty (30)
days from the date contemplated at the time of the previous year's proxy
statement, in which case any such notice must be received not less than sixty
(60) days before the date established for the meeting.
(b) Each such shareholder's notice shall set forth as to each
matter the shareholder proposes to bring before the annual meeting: (i) the name
and address, as they appear on the Corporation's stock transfer books, of the
shareholder proposing business; (ii) the class and number of shares of stock of
the Corporation beneficially owned by such shareholder; (iii) a representation
that such shareholder is a shareholder of record at the time of the giving of
the notice and intends to appear in person or by proxy at the meeting to present
the business specified in the notice; (iv) a brief description of the business
desired to be brought before the
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meeting, including the complete text of any resolutions to be presented and the
reasons for wanting to conduct such business; and (v) any interest which the
shareholder may have in such business.
(c) The Secretary or Assistant Secretary shall deliver each
shareholder's notice that has been timely received to the Chairman and to the
Chief Executive Officer for review.
(d) Notwithstanding the foregoing provisions of this Section
1.2, a shareholder seeking to have a proposal included in the Corporation's
proxy statement for an annual meeting of shareholders shall comply with the
applicable requirements of Regulation 14A under the Securities Exchange Act of
1934, as amended from time to time, or with any successor regulation.
SECTION 1.3. SPECIAL MEETINGS.
(a) A special meeting may also be called by (i) shareholders
entitled to cast twenty-five percent (25%) of all votes entitled to be cast at
the meeting or (ii) by the Series A Preferred shareholders who own fifteen
percent (15%) of all outstanding voting shares or (iii) by the Series B
Preferred shareholders who own fifteen percent (15%) of all outstanding voting
shares, upon the request in writing signed by such shareholders and delivered to
the Chairman of the Board, the Chief Executive Officer, or the Secretary. Such
request shall set forth: (i) the names and addresses, as they appear on the
Corporation's stock transfer books, of the stockholders making the request; (ii)
the class and number of shares of stock of the Corporation beneficially owned by
such stockholders; (iii) a representation that such stockholders are
stockholders of record at the record date for determining whether the requisite
number of stockholders have signed and delivered the written request demanding a
special meeting of stockholders and a representation as to the date on which the
first such stockholder signed such request; (iv) a representation that each such
stockholder intends to appear in person or by proxy at the meeting to present
the business specified in the notice; (v) as to each matter or business the
requesting stockholders propose to bring before the special meeting, a brief
description of the matter or business including the complete text of any
resolutions to be presented and the reasons for wanting to conduct such
business; and (iv) any interest which any of the requesting stockholders may
have in such business.
(b) The record date for determining whether the requisite
number of stockholders have signed and delivered the written request demanding a
special meeting of stockholders is the date the first such stockholder signs
such request.
(c) A special meeting may not be called to consider any matter
which is substantially the same as a matter voted on at any special meeting of
the stockholders held during the preceding twelve (12) months, unless the
meeting is requested by stockholders entitled to cast a majority of all of the
votes entitled to be cast at the meeting. The twelve-month period shall be
determined from the date of the previous special meeting to the date of the
stockholder request.
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(d) The Secretary or Assistant Secretary shall inform the
shareholders who make the request of the reasonably estimated cost of preparing
and mailing a notice of the meeting, and only upon payment of these costs to the
Corporation, notify each shareholder entitled to notice of the meeting. If the
officer of the Corporation to whom such request in writing shall have been
delivered pursuant to Section 1.2(a) shall fail to issue a call for such meeting
within ten (10) business days after payment to the Corporation of the reasonably
estimated cost of preparing and mailing a notice of the meeting, then the
stockholders who made the request may do so by giving fifteen (15) business
days' notice of the time, place and object of the meeting by advertisement
inserted in a daily newspaper of general circulation in the City of Boston,
Massachusetts.
(e) Only business within the purpose or purposes described in
the notice for a special meeting of shareholders may be conducted at the
meeting.
SECTION 1.4. PLACE OF MEETINGS. Annual and special meetings of the
shareholders shall be held at the principal office of the Corporation or at such
other place within or without the Commonwealth of Massachusetts as the Board or
other persons authorized to call such meetings may from time to time determine
and indicate in the notice.
SECTION 1.5. NOTICE OF MEETINGS. Written notice shall be given stating
the place, date and hour of all meetings of the shareholders. The notice shall
state the purpose or purposes of the meeting and shall indicate that it is being
issued by or at the direction of the person or persons calling the meeting. A
copy of the notice of any meeting shall be given, personally or by mail, not
less than ten (10) nor more than fifty (50) days before the date of the meeting,
to each shareholder entitled to vote at the meeting. If mailed, notice shall be
deemed to have been given when deposited in the United States mail, postage
prepaid, directed to each shareholder at his or her last known address as it
appears on the records of the Corporation, or, if he or she shall have filed
with the Secretary a written request that notices be mailed to some other
address, then directed to him or her at such other address. Notice must also be
given to any shareholder who, by reason of the action proposed at the meeting
would be entitled to receive payment for his or her shares, and the existence of
this right must be stated in the notice. No notice provided for in this Section
1.4 is required to be given to any shareholder who submits a signed waiver of
notice, in person or by proxy, whether before or after the meeting. The
attendance of any shareholder at the meeting, in person or by proxy, who does
not protest prior to the conclusion of the meeting the lack of notice of such
meeting, shall constitute a waiver of notice to the shareholder. No notice of
any adjourned meeting of shareholders need be given, unless the Board fixes a
new record date for the adjourned meeting.
SECTION 1.6. RECORD DATE. For the purposes of determining the
shareholders entitled to notice of or vote at a shareholder's meeting or any
adjournment thereof, the Board may fix a date of record which shall not be more
than fifty (50) days nor less than ten (10) days before the meeting date. For
the purpose of determining shareholders entitled to express consent to or
dissent from any proposal without a meeting, or for determining shareholders
entitled to receive payment of a dividend or the allotment of any rights, or for
any other action, the Board may fix a date of record which shall not be more
than fifty (50) days prior to such action.
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SECTION 1.7. QUORUM. At all meetings of the shareholders, except as
otherwise provided by law, there shall be present, in person or represented by
proxy, shareholders owning a majority in number of the shares of the Corporation
issued and outstanding and entitled to vote thereat, in order to constitute a
quorum; but if there be no quorum, the holders of the share present or
represented may, by majority vote, adjourn the meeting from time to time, but
not for a period of over thirty (30) days at any one time, without notice other
than by announcement at the meeting, until a quorum shall attend. At any such
adjourned meeting at which a quorum shall attend, any business may be transacted
which might have been transacted at the meeting as originally called. When a
quorum is once present, it is not broken by the subsequent withdrawal of any
shareholder.
SECTION 1.8. VOTING. At all meetings of the shareholders, each
shareholder entitled to vote thereat may vote in person or by proxy and shall
have one (l) vote for each share standing in his name on the books of the
Corporation, unless otherwise provided in the Certificate of Incorporation. A
plurality of votes cast shall be sufficient to elect directors and a majority of
votes cast shall be sufficient to take any other corporate action, except as
otherwise provided by law, the Certificate of Incorporation, or these Bylaws.
SECTION 1.9. PROXIES. No shareholder shall enter into a voting trust
agreement, proxy or other type of agreement vesting in another person, other
than another shareholder of the Corporation, or an officer or director of the
Corporation, the authority to exercise voting power of any or all of his or her
shares. Every proxy shall be in writing, subscribed by the shareholder or his or
her duly authorized attorney-in-fact and dated. No proxy which is dated more
than eleven (11) months before the meeting at which it is offered shall be
accepted, unless such proxy shall, on its face, name a longer period for which
it is to remain in force.
SECTION 1.10. CONDUCT OF MEETING. Meetings of the shareholders shall be
presided over by the Chairman in accordance with Section 3.2 hereof, or in the
absence of the Vice Chairman or all other such officers as prescribed in Article
III hereof, by a Chairman to be chosen at the meeting. The Secretary or,
pursuant to Article III hereof, the Assistant Secretary of the Corporation (if
such Assistant Secretary has been appointed by the Board) shall act as Secretary
of the meeting, if present, otherwise the Chairman shall appoint a Secretary.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.1. ELECTION AND POWERS. The Board of Directors shall have the
management and control of the affairs and business of the Corporation. The Board
may act at any duly held meeting by the vote of a majority of the directors
present, or it may act by unanimous written consent of all members of the Board
if permitted by the Corporation's State of Incorporation. From and after the
closing of the Corporation's annual meeting on June 30, 1999 (the "Annual
Meeting"), the directors of the Corporation shall be divided into three (3)
classes designated as Class I, Class II and Class III, respectively. Directors
shall be assigned to each class in accordance with a resolution or resolutions
adopted by the Board of Directors prior to the Annual Meeting. At the first
annual meeting of shareholders following the Annual Meeting, the term of office
of the Class I directors shall expire and Class I directors shall be elected for
a full term of three (3) years. At the second annual meeting of shareholders
following the closing of the Annual
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Meeting, the term of the Class II directors shall expire and Class II directors
shall be elected for a full term of three (3) years. At the third annual meeting
of shareholders following the closing of the Annual Meeting, the term of office
of the Class III directors shall expire and Class III directors shall be elected
for a full term of three (3) years. At each succeeding annual meeting of
shareholders, directors shall be elected for a full term of three (3) years to
succeed the directors of each class whose terms expire at such annual meeting.
Notwithstanding the foregoing provisions of this Article, each director shall
serve until his successor is duly elected and qualified or until his death,
resignation or removal. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director. Each
director shall serve until a successor is elected and qualified pursuant to the
terms of this Article III, unless his or her directorship be therefore vacated
by resignation, death, legal disqualification pursuant to Article V, removal or
otherwise.
SECTION 2.2. NUMBER. The number of directors constituting the entire
Board shall be such number, not less than three (3), as shall be fixed by vote
of a majority of the entire Board from time to time. In absence of such action,
the number of directors shall be three (3). Notwithstanding the provisions of
this Section, where all of the shares are owned beneficially and of record by
fewer than three (3) shareholders, the number of directors shall be equal to the
number of shareholders, unless otherwise fixed by the Board, which may fix a
greater number.
SECTION 2.3. VACANCIES. Vacancies and other openings in the Board,
created for any reason except removal of a director without cause, may be filled
by the Board or a majority of the directors then in office if less than a quorum
are in office.
SECTION 2.4. REMOVAL. At any meeting of the shareholders duly called,
any director may be removed from office only for cause by vote of the holders of
a majority of the shares entitled to vote in the election of directors.
SECTION 2.5. NOMINATION OF DIRECTORS.
(a) No person shall be eligible for election as a director at
a meeting of shareholders unless nominated (i) by the Board of Directors or (ii)
by a shareholder who is a shareholder of record of a class of shares entitled to
vote for the election of directors, both at the time of the giving of the
shareholder's notice hereinafter described in this Section 2.5 and on the record
date for the meeting at which directors will be elected, and who complies with
the notice procedures set forth in this Section 2.5.
(b) In order to nominate any persons who are not listed as
nominees in the Corporation's proxy statement for a shareholders' meeting for
election as directors at such meeting, a shareholder who meets the requirements
set forth in the preceding paragraph must give the Corporation timely written
notice. To be timely, a shareholder's notice must be given either by personal
delivery to the Secretary or an Assistant Secretary at the principal office of
the Corporation or by first class United States mail, with postage thereon
prepaid, addressed to the Secretary at the principal office of the Corporation.
Any such notice must be received (i) on or
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after April 1st and before May 1st of the year in which the meeting will be held
if the meeting is to be an annual meeting and clause (ii) is not applicable, or
(ii) not less than sixty (60) days before an annual meeting, if the date of the
applicable annual meeting, as prescribed in these Bylaws, has been changed by
more than thirty (30) days or (iii) not later than the close of business on the
tenth day following the day on which notice of a special meeting of shareholders
called for the purpose of electing directors is first given to shareholders.
(c) Each such shareholder's notice shall set forth the
following: (i) as to the shareholder giving the notice, (1) the name and address
of such shareholder as they appear on the Corporation's stock transfer books,
(2) the class and number of shares of the Corporation beneficially owned by such
shareholder, (3) a representation that such shareholder is a shareholder of
record at the time of giving the notice and intends to appear in person or by
proxy at the meeting to nominate the person or persons specified in the notice
and (4) a description of all arrangements or understandings, if any, between
such shareholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made; and (ii) as to each person whom the shareholder wishes to nominate for
election as a director, (1) the name, age, business address and residence
address of such person, (2) the principal occupation or employment of such
person, (3) the class and number of shares of the Corporation which are
beneficially owned by such person and (4) all other information that is required
to be disclosed about nominees for election as directors in solicitations of
proxies for the election of directors under the rules and regulations of the
Securities and Exchange Commission. In addition, each such notice shall be
accompanied by the written consent of each proposed nominee to serve as a
director if elected and such consent shall contain a statement from the proposed
nominee to the effect that the information about him contained in the notice is
correct.
SECTION 2.6. MEETINGS. A regular meeting of the Board shall be held as
soon as practicable after the adjournment of the annual meeting of shareholders
for the election of officers, and the transaction of such business as may be
properly presented, including the designation of times and places for additional
regular meetings of the Board during the ensuing year. Special meetings of the
Board shall be held at any time, upon call from the Chairman of the Board, if
any, the Chief Executive Officer, or at least one-third (1/3) of the directors.
SECTION 2.7. PLACE OF MEETINGS. All meetings of the Board shall be held
at the principal office of the Corporation, or at such other place, within or
without the Commonwealth of Massachusetts as may from time to time be determined
by the Board or the person or persons authorized to call the meeting.
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SECTION 2.8. NOTICE OF MEETINGS. No notice need be given of a regular
meeting of the Board. Notice of the place, day and hour of every special meeting
shall be given to each director by personal delivery or by telegraph or
facsimile or e-mail or leaving the same at the director's residence or usual
place of business, at least one (1) day before the meeting, or shall be mailed
to each director, postage prepaid and addressed to the director at his or her
last known address according to the records of the Corporation, at least three
(3) days before the meeting. No notice of any adjourned meeting of the Board
need be given other than by announcement at the meeting, subject to the
provisions of Section 2.10 of this Article.
SECTION 2.9. WAIVER OF NOTICE. Notice of a meeting need not be given to
any director who submits a signed written waiver thereof whether before, during
or after the meeting nor to any director who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to him or
her.
SECTION 2.10. QUORUM. A majority of the directors in office, but in no
event less than one-third (1/3) of the entire Board shall be necessary to
constitute a quorum for the transaction of business at each meeting of the
Board; but if at any meeting there be less than a quorum present, a majority of
those present may adjourn the meeting from time to time without notice other
than by announcement at the meeting, until a quorum shall attend. At any such
adjournment at which a quorum shall be present any business may be transacted
which might have been transacted at the meeting as originally called.
SECTION 2.11. PRESENCE AT MEETINGS. Any one or more members of the
Board or any committee thereof may participate in a meeting of the Board or such
committee, by means of a conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear each other
at the same time. Participation by such means shall constitute presence at a
meeting.
SECTION 2.12. ACTION WITHOUT A MEETING. Any action required or
permitted to be taken any action by the Board of Directors or by any committee
thereof at a duly held meeting may be taken without a meeting if all members of
the Board of Directors or of the committee, as the case may be, consent in
writing to the adoption of resolutions authorizing the action. Such resolutions
and such written consents shall be filed with the minutes of the proceedings of
the Board of Directors or of the committee.
SECTION 2.13. EXECUTIVE COMMITTEE AND OTHER COMMITTEES. The Board may,
in its discretion, by an affirmative vote of a majority of the entire Board
appoint an Executive Committee, or any other committee, to consist of three (3)
or more directors. Unless limited by the Board, or by law, the Executive
Committee shall have and may exercise all power and authority of the Board in
the management of the business and affairs of the Corporation, and other
committees shall have those powers conferred upon them by the Board, except that
no committee shall have power to act in those areas specifically prohibited by
law. Any committee shall have the power to act by unanimous written consent of
all of its members in accordance with the Delaware General Corporation Law.
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ARTICLE III
OFFICERS
SECTION 3.1 OFFICERS. The officers of the Corporation shall be chosen
by the Board and shall be a Chairman, a Chief Executive Officer, a President, a
Secretary and a Treasurer. The Board may also choose one or more executive,
senior, assistant or other Vice Presidents, Assistant Secretaries or Assistant
Treasurers. Any number of offices may be held by the same person except the
offices of President and Secretary, unless the Certificate of Incorporation or
these Bylaws otherwise provide.
(a) The Board at its first meeting after each annual meeting
of shareholders shall choose a Chairman, a Chief Executive Officer, a President,
a Secretary and a Treasurer.
(b) The Board may appoint such other officers and agents as it
shall deem necessary, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board.
(c) The officers of the Corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
Board may be removed at any time by the affirmative vote of a majority of the
Board of Directors. Any vacancy occurring in any office of the Corporation shall
be filled by the Board.
(d) Any officer of the Corporation shall have authority to
execute documents in the ordinary course of business such as bonds, mortgages,
and other contracts requiring a seal, under the seal of the Corporation, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated or
limited by the Board to some particular officer or agent of the Corporation. No
officer of the Corporation shall have any power or authority outside the normal
day-to-day business of the Corporation, to bind the Corporation by contract or
engagement or to pledge its credit or to render it liable in connection with any
transaction unless so authorized by the Board.
SECTION 3.2 CHAIRMAN. The Chairman shall preside at all meetings of
shareholders and of the Board. The Chairman shall perform such other duties and
have such other powers as the Board may from time to time prescribe.
SECTION 3.3 VICE-CHAIRMAN. In the absence of the Chairman or in the
event of his inability or refusal to act, the Vice-Chairman, if one has been
appointed, shall perform the duties of the Chairman, and when so acting, shall
have all the powers of and be subject to all of the restrictions upon the
Chairman. The Vice-Chairman, if one has been appointed, shall perform such other
duties and have such other powers as the Board may from time to time prescribe.
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SECTION 3.4 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall,
subject to the direction of the Board and the Chairman, have the general
management and control of the affairs and business of the Corporation. The Chief
Executive Officer shall see that all orders and resolutions of the Board are
carried into effect. The Chief Executive Officer shall also perform such other
duties and have such other powers as the Board may from time to time prescribe.
SECTION 3.5 PRESIDENT. In the absence of the Chief Executive Officer or
in the event of his inability or refusal to act, the President shall perform the
duties of the Chief Executive Officer, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Chief Executive
Officer. The President shall perform such other duties and have such other
powers as the Board may from time to time prescribe.
SECTION 3.6 EXECUTIVE AND OTHER VICE-PRESIDENTS.
(a) In the absence of the Chief Executive Officer and the
President or in the event of their inability or refusal to act, the Executive
Vice-President, in the event one has been elected (or in the event there be more
than one Executive Vice-President, the Executive Vice-Presidents in the order
designated, or in the absence of any designation, then in the order of their
election), shall perform the duties of the Chief Executive Officer, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the Chief Executive Officer. The Executive Vice-Presidents shall perform such
other duties and have such other powers as the Board may from time to time
prescribe.
(b) In the absence of the Chief Executive Officer, the
President and any Executive Vice-President or in the event of the inability or
refusal of any Executive Vice-President to act, or in the event an Executive
Vice-President has not been elected, the Vice-President (or in the event there
be more than one Vice-President, the Vice-Presidents in the order designated, or
in the absence of any designation, then in the order of their election) shall
perform the duties of the Chief Executive Officer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Chief
Executive Officer. The Vice-Presidents shall perform such other duties and have
such other powers as the Board may from time to time prescribe.
SECTION 3.7 SECRETARY AND ASSISTANT SECRETARIES.
(a) The Secretary shall attend all meetings of the Board and
all meetings of the shareholders and shall record all proceedings of the
meetings of the Corporation and of the Board in a book to be kept for that
purpose and shall perform like duties for the standing committees when required.
The Secretary shall give, or cause to be given, notice of all meetings of the
shareholders and special meetings of the Board, and shall perform such other
duties as may be prescribed by the Board, under whose supervision he or she
shall be. The Secretary shall have custody of the corporate seal of the
Corporation and he or she, or an Assistant Secretary, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by his or her signature or by the signature of each such Assistant
Secretary. The
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Board may give general authority to any other officer to affix the seal of the
Corporation and to attest the fixing by his or her signature.
(b) The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board (or if there be no
such determination, then in the order of their election), shall, in the absence
of the Secretary or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board may from time to time prescribe.
SECTION 3.8 TREASURER AND ASSISTANT TREASURERS.
(a) The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all monies
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board.
(b) The Treasurer shall disburse the funds of the Corporation
as may be ordered by the Board, taking proper vouchers for such disbursements,
and shall render to the Board, at its regular meetings, or when the Board so
requires, an account of all of the Treasurer's transactions as Treasurer and of
the financial condition of the Corporation.
(c) If required by the Board, the Treasurer shall give the
Corporation a bond (which shall be renewed every six (6) years) in such sum and
with such surety or sureties as shall be satisfactory to the Board for the
faithful performance of the duties of the Treasurer's office and for the
restoration to the Corporation, in case of the Treasurer's death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in the Treasurer's possession or under the
Treasurer's control belonging to the Corporation.
(d) The Assistant Treasurer, or if there shall be more than
one, the Assistant Treasurers in the order determined by the Board (or if there
be no such determination, then in the order of their election), shall, in the
absence of the Treasurer or in the event of the Treasurer's inability or refusal
to act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Board may from time
to time prescribe.
ARTICLE IV
SHARE CERTIFICATES
SECTION 4.1. FORM AND SIGNATURES. The interest of each shareholder of
the Corporation shall be evidenced by certificates for shares in such form not
inconsistent with law or the Certificate of Incorporation as the Board may from
time to time prescribe. The share certificates shall be signed by the Chief
Executive Officer, the President or a Vice President and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer, sealed with the
seal of the Corporation, and countersigned and registered in such manner, if
any, as the
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Board may by resolution prescribe. Where any share certificate is countersigned
by a transfer agent or registered by a registrar, other than the Corporation
itself or its employee, the signatures of any such Chief Executive Officer,
President, Vice President, Secretary, Assistant Secretary, Treasurer, or
Assistant Treasurer, and such corporate seal, may be facsimiles, engraved or
printed. In case any officer who has signed or whose facsimile signature has
been placed upon such certificate shall have ceased to be such officer before
the share certificate is issued, such certificate may be issued by the
Corporation with the same effect as if such person had not ceased to be such
officer.
SECTION 4.2. TRANSFER OF SHARES. The shares of the Corporation shall be
transferred on the books of the Corporation by the registered holder hereof, in
person or by his or her attorney, upon surrender for cancellation of
certificates for the same number of shares, with a proper assignment and powers
of transfer endorsed thereon or attached thereto, duly signed by the person
appearing by the certificate to be the owner of the shares represented thereby,
with such proof of the authenticity of the signature as the Corporation or its
agents may reasonably require. Such certificate shall have fixed thereto all
stock transfer stamps required by law. The Board shall have power and authority
to make all such other rules and regulations as it may deem expedient concerning
the issue, transfer and registration of certificates for shares of the
Corporation.
SECTION 4.3. MUTILATED, LOST, STOLEN OR DESTROYED CERTIFICATES. The
holder of any certificates representing shares of the Corporation shall
immediately notify the Corporation of any mutilation, loss, theft or destruction
thereof, and the Board may, in its discretion, cause one or more new
certificates for the same number of shares in aggregate to be issued to such
holder upon the surrender of the mutilated certificate, or in the case of loss,
theft or destruction of the certificate, upon satisfactory proof of loss, theft
or destruction and the deposit of indemnity by way of bond or otherwise in such
form and amount and with such sureties or securities as the Board may require to
indemnify the Corporation, its transfer agent and registrar, if any, against
loss or liability by reason of the issuance of such new certificates; but the
Board may in its discretion refuse to issue such new certificates save upon the
order of some court having jurisdiction in such matters.
SECTION 4.4. STOCK LEDGERS. The stock ledgers of the Corporation
containing the names and addresses of the shareholders and the number of shares
held by them respectively shall be maintained at the principal office of the
Corporation, or if there be a transfer agent, at the office of such transfer
agent, as the Board shall determine.
SECTION 4.5. TRANSFER AGENTS AND REGISTRARS. The Corporation may have
one or more transfer agents and one or more registrars of its stock or of any
class or classes of its shares whose respective duties the Board may from time
to time determine.
ARTICLE V
INDEMNIFICATION
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SECTION 5.1. AUTHORIZATION OF INDEMNIFICATION. Each person who was or
is a party or is threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether by or in the right of the
Corporation or otherwise (a "proceeding"), by reason of the fact that he or she,
or a person of whom he or she is the legal representative, is or was a director
or officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee, partner (limited or general) or
agent of another corporation or of a partnership, joint venture, limited
liability company, trust or other enterprise, including service with respect to
an employee benefit plan, shall be (and shall be deemed to have a contractual
right to be) indemnified and held harmless by the Corporation (and any successor
to the Corporation by merger or otherwise) to the fullest extent authorized by,
and subject to the conditions and (except as otherwise provided herein)
procedures set forth in the Delaware General Corporation Law, as the same exists
or may hereafter be amended (but any such amendment shall not be deemed to limit
or prohibit the rights of indemnification hereunder for past acts or omissions
of any such person insofar as such amendment limits or prohibits the
indemnification rights that said law permitted the Corporation to provide prior
to such amendment), against all expenses, liabilities and losses (including
attorneys' fees, judgments, fines, ERISA taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by such person in
connection therewith; PROVIDED, HOWEVER, that the Corporation shall indemnify
any such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such persons only if such proceeding (or part thereof) was
authorized by the Board. Persons who are not directors or officers of the
Corporation and are not so serving at the request of the Corporation may be
similarly indemnified in respect of such service to the extent authorized at any
time by the Board. The indemnification conferred in this Section 5.1 also shall
include the right to be paid by the Corporation (and such successor) the
expenses (including attorneys' fees) incurred in the defense of or other
involvement in any such proceeding in advance of its final disposition;
PROVIDED, HOWEVER, that, if and to the extent the Delaware General Corporation
Law requires, the payment of such expenses (including attorneys' fees) incurred
by a director or officer in advance of the final disposition of a proceeding
shall be made only upon delivery to the Corporation of an undertaking by or on
behalf of such director or officer to repay all amounts so paid in advance if it
shall ultimately be determined that such director or officer is not entitled to
be indemnified under this Section 5.1 or otherwise; and PROVIDED FURTHER, that,
such expenses incurred by other employees and agents may so be paid in advance
upon such terms and conditions, if any, as the Board deems appropriate.
SECTION 5.2 NON-EXCLUSIVITY. The rights to indemnification and advance
payment of expenses provided by Section 5.1 hereof shall not be deemed exclusive
of any other rights to which those seeking indemnification and advance payment
of expenses may be entitled under any by-law, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office.
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SECTION 5.3 SURVIVAL OF INDEMNIFICATION. The indemnification and
advance payment of expenses and rights thereto provided by, or granted pursuant
to, Section 5.1 hereof shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee, partner or agent and shall inure to the benefit of the personal
representatives, heirs, executors and administrators of such person.
SECTION 5.4 INSURANCE. The Corporation shall have the power to purchase
and maintain on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, partner (limited or general) or
agent of another corporation or of a partnership, joint venture, limited
liability company, trust or other enterprise, against any liability asserted
against such person or incurred by such person in any such capacity, or arising
out of such person's status as such, and related expenses, whether or not the
Corporation would have the power to indemnify such person against such liability
under the provisions of the Delaware General Corporation Law.
ARTICLE VI
FINANCES
SECTION 6.1. DIVIDENDS. Subject to law and to the provisions of the
Certificate of Incorporation, the Board may declare dividends on the stock of
the Corporation, payable upon such dates as the Board may designate.
SECTION 6.2. RESERVES. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums, as the Board from time to time, in its absolute discretion, deems proper
as a reserve or reserves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other
purpose as the Board shall deem conducive to the best interest of the
Corporation, and the Board may modify or abolish any such reserve in the manner
in which it was created.
SECTION 6.3. BILLS, NOTES, ETC. All checks or demands for money and
notes or other instruments evidencing indebtedness or obligations of the
Corporation shall be made in the name of the Corporation and shall be signed by
an officer of the Corporation or such other officer or officers or such other
person or persons as the Board may from time to time designate.
SECTION 6.4. VOTING SHARES HELD BY THE CORPORATION. Unless otherwise
determined by the Board, the Chief Executive Officer of the Corporation is
hereby designated as the officer of the Corporation authorized to vote any and
all shares of stock held by the Corporation in other domestic or foreign
corporations; he or she shall have the power and authority to vote such shares
in person or by proxy, or by written consents in lieu of formal meetings.
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ARTICLE VII
AMENDMENTS
SECTION 7.1. POWER TO AMEND. The Board shall have the power to adopt,
amend or repeal the Bylaws of the Corporation by a majority vote of the entire
Board at any meeting, or by unanimous written consent of all members of the
Board. However, any Bylaws adopted by the Board may be amended or repealed at
any meeting of the shareholders.
SECTION 7.2. NOTICE OF AMENDMENT AFFECTING ELECTION OF DIRECTORS. If
any Bylaw regulating an impending election of directors is adopted, amended or
repealed by the Board, there shall be set forth in the notice of the next
meeting of shareholders for the election of directors, the Bylaw so adopted,
amended or repealed, together with a concise statement of the changes made.
ARTICLE VIII
OFFICES OF THE CORPORATION
SECTION 8.1. REGISTERED OFFICE. The initial registered office of the
Corporation shall be in Wilmington, Delaware, and the initial registered agent
in charge thereof shall be The Company Corporation.
SECTION 8.2. OTHER OFFICES. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the Board
may from time to time determine or as may be necessary or useful in connection
with the business of the Corporation.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1. DIVIDENDS. The Board may, but shall not be obligated to,
declare dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, as may be amended, and the laws
of the State of Delaware.
SECTION 9.2. RESERVES. The Board may set apart, out of the funds of the
Corporation available for dividends, a reserve or reserves for any proper
purpose and may abolish any such reserve.
SECTION 9.3 EXECUTION OF INSTRUMENTS. All checks, drafts or other
orders for the payment of money, and promissory notes of the Corporation shall
be signed by such officer or officers or such other person or persons as the
Board may from time to time designate.
SECTION 9.4 FISCAL YEAR. The fiscal year of the Corporation shall end
on the 31st day of December of each year.
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SECTION 9.5 SEAL. The corporate seal shall be in such form as the Board
shall approve. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed otherwise reproduced.
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