SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): August
15, 1995
EARL SCHEIB, INC.
(Exact name of registrant as specified in its
charter)
1-4822
(Commission
file number)
Delaware 95-1759002
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8737 Wilshire Boulevard
Beverly Hills, California 90211-0000
(Address of principal executive offices) (Zip Code)
(310) 652-4880
(Registrant's telephone number, including area code)
________________________________________
Item 5. Other Events.
On July 7, 1995, the Board of Directors of Earl Scheib, Inc., a
Delaware corporation (the "Company") adopted and recommended for
Shareholder approval the Amended and Restated Bylaws of Earl
Scheib, Inc. in the form attached as an Exhibit to this Current
Report on Form 8-K.
On August 15, 1995, the Shareholders of the Company adopted and
approved the Amended and Restated Bylaws and said Bylaws were
deemed effective on August 15, 1995.
1
<PAGE>
Item 7. Exhibits.
Exhibit 3(ii).... Amended and Restated Bylaws of Earl Scheib,
Inc.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
EARL SCHEIB, INC.,
A Delaware corporation
By:/s/ John K. Minnihan
--------------------
John K. Minnihan
Chief Financial Officer
Date: August 25, 1995
2
<PAGE>
AMENDED AND RESTATED
BYLAWS
OF
EARL SCHEIB, INC.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE.
The registered office of Earl Scheib, Inc. (the "Corporation")
shall be C.T. Corporation at 1209 Orange Street, Wilmington,
Delaware 19801.
SECTION 2. PRINCIPAL PLACE OF BUSINESS.
The Board of Directors shall fix the location of the principal
executive office of the Corporation at any place within or
without the State of Delaware as the Board of Directors
determines from time to time or as the business of the
Corporation may require.
SECTION 3. OTHER OFFICES.
The Corporation may also have offices at such other places both
within and without the State of Delaware as the Board of
Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS.
Meetings of the stockholders for the election of directors or for
any other purpose shall be held at such time and place, either
within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors (and in the case of a
special meeting, by the Board of Directors or the person calling
the special meeting as authorized by Section 3 of this Article
II) and stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
SECTION 2. ANNUAL MEETINGS.
The Annual Meetings of Stockholders shall be held on such date
and at such time and place as may be fixed by the Board of
Directors and stated in the notice of the meeting, for the
purpose of electing directors and for the transaction of such
other business as is properly brought before the meeting in
accordance with these Bylaws. Written notice of the Annual
Meeting stating the place, date and hour of the Annual Meeting
shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) nor more than sixty (60) days
before the date of the meeting.
SECTION 3. SPECIAL MEETINGS.
Special meetings of stockholders, for any purpose or purposes,
may be called by the Board of Directors pursuant to a resolution
adopted by a majority of the directors then in office. Special
meetings of
1
<PAGE>
stockholders may not be called by any other person or persons.
Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the
meeting is called shall be given not less than ten (10) nor more
than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting, and only such
business as is stated in such notice shall be acted upon thereat.
SECTION 4. NOTICE OF BUSINESS.
To be properly brought before the Annual Meeting, business must
be either (i) specified in the notice of Annual Meeting (or any
supplement or amendment thereto) given by or at the direction of
the Board of Directors, (ii) brought before the Annual Meeting by
or at the direction of the Board of Directors, or (iii) properly
brought before the Annual Meeting by a stockholder. In addition
to any other applicable requirements, for business to be properly
brought before an Annual Meeting by a stockholder, the
stockholder must be a stockholder of record on the date of giving
of the notice provided for in this section and such stockholder
must have given timely notice thereof in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received by the Corporation's
Secretary at 8737 Wilshire Boulevard, Beverly Hills, California
90211, or such address as is then the Corporation's primary
corporate office (other than a request for inclusion of a
proposal in the Corporation's proxy statement pursuant to Rule
14a-8 of the Securities Exchange Act of 1934, as amended, ("1934
Act")) not less than fifty (50) days nor more than seventy-five
(75) days prior to the meeting; provided, however, that in the
event that less than sixty-five (65) days' notice or prior public
disclosure of the date of the Annual Meeting is given or made to
stockholders, notice by a stockholder to be timely must be so
received not later than the close of business on the fifteenth
(15th) day following the day on which such notice of the date of
the Annual Meeting was mailed or such public disclosure was made,
whichever first occurs. A stockholder's notice to the Secretary
shall set forth as to each matter the stockholder proposes to
bring before the Annual Meeting (i) a brief description of the
business desired to be brought before the Annual Meeting and the
reasons for conducting such business at the Annual Meeting, (ii)
the name and record address of the stockholder(s) proposing such
business, (iii) the class, series and number of shares of the
Corporation which are beneficially owned by the stockholder(s),
and (iv) a description of all arrangements and understandings
between such stockholder(s) and any other person or persons in
connection with such business and any material interest of the
stockholder(s) in such business. Notwithstanding anything in the
Bylaws to the contrary, no business shall be conducted at the
Annual Meeting except in accordance with the procedures set forth
in this Article II, Section 4. The person presiding at an Annual
Meeting shall, if the facts warrant, determine and declare to the
Annual Meeting that business was not properly brought before the
Annual Meeting in accordance with the provisions of this Article
II, Section 4, and if he should so determine, he shall so declare
to the Annual Meeting and any such business not properly brought
before the meeting shall not be transacted.
SECTION 5. QUORUM.
Except as may be otherwise provided by law or by the Certificate
of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business. If,
however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote
thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a
quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as
originally noticed. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder entitled to vote at the
meeting.
2
<PAGE>
SECTION 6. VOTING; PROXIES.
Unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, any question brought before any
meeting of stockholders shall be decided by the vote of the
holders of record of a majority of the stock represented and
entitled to vote thereon. Unless otherwise provided in the
Certificate of Incorporation, each stockholder represented at a
meeting of stockholders shall be entitled to cast one vote for
each share of the capital stock entitled to vote thereat held by
such stockholder. The Board of Directors, in its discretion, or
the officer of the Corporation presiding at a meeting of
stockholders, in his discretion, may require that any votes cast
at such meeting shall be cast by written ballot.
Each stockholder entitled to vote at a meeting of stockholders
may authorize another person or persons to act for him by proxy,
but no such proxy shall be voted or acted upon after three (3)
years from its date, unless the proxy provides for a longer
period. A duly executed proxy shall be irrevocable if it states
that it is irrevocable and if, and only so long as, it is coupled
with an interest sufficient in law to support an irrevocable
power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by
filing with the Secretary an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date. Voting
at meetings of stockholders need not be by written ballot unless
the holders of a majority of the outstanding shares of all
classes of stock entitled to vote thereon present in person or by
proxy at such meeting shall so determine.
SECTION 7. ACTION WITHOUT MEETING.
Any action which may be taken at any annual or special meeting of
stockholders may be taken without a meeting, and without a vote,
if a consent in writing, setting forth the action so taken, shall
be signed, in person or by proxy, by the holders of outstanding
stock having not less than the minimum number of votes that would
be necessary to authorize or take the action at a meeting at
which all shares entitled to vote thereon were present and voted
in person or by proxy. 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, but who were entitled to vote on the
matter.
SECTION 8. ORGANIZATION.
All meetings of the stockholders shall be presided over by the
Chairman of the Board of Directors or, if he or she is not
present, by the President, and if he or she is not present, by
such officer or director as is designated by the Board of
Directors. The Secretary of the Corporation or, if he or she is
not present, any Assistant Secretary or other person designated
by the presiding officer shall act as secretary of the meeting.
SECTION 9. LIST OF STOCKHOLDERS ENTITLED TO VOTE.
The officer of the Corporation who has charge of the stock ledger
of the Corporation shall prepare and make, or shall cause to be
prepared and made, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to
vote at the meeting, showing the address of each stockholder and
the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and
may be inspected by any stockholder of the Corporation who is
present.
3
<PAGE>
SECTION 10. STOCK LEDGER.
The stock ledger of the Corporation shall be the only evidence as
to who are the stockholders entitled to examine the stock ledger,
the list required by Section 9 of this Article II or the books of
the Corporation, or to vote in person or by proxy at any meeting
of stockholders.
SECTION 11. INSPECTORS OF ELECTION.
Before any meeting of stockholders, the Board of Directors shall
appoint one or more inspectors to act at the meeting and make a
written report thereof. The Board of Directors may designate one
or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at
a meeting of stockholders, the person presiding at the meeting
shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of
his ability.
The inspectors shall: (a) ascertain the number of shares
outstanding and the voting power of each; (b) determine the
shares represented at the meeting and the validity of proxies and
ballots; (c) count all votes and ballots; (d) determine and
retain for a reasonable period a record of the disposition of any
challenges made to any determination made by the inspectors; and
(e) certify their determination of the number of shares
represented at the meeting, and their count of all votes and
ballots. In determining the validity and counting of proxies and
ballots, the inspectors shall act in accordance with applicable
law. The inspectors may appoint or retain other persons or
entities to assist the inspectors in the performance of the
duties of the inspectors.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND ELECTION OF DIRECTORS.
Subject to the rights, if any, of holders of preferred stock of
the Corporation to elect directors of the Corporation, the Board
of Directors shall consist of not less than five (5) nor more
than nine (9) members with the exact number of directors to be
determined from time to time by resolution duly adopted by the
Board of Directors. Directors shall be elected by a plurality of
the votes cast at Annual Meetings of stockholders, and each
director so elected shall hold office until the next Annual
Meeting of stockholders and until a successor has been duly
elected and qualified. Any director may resign at any time
effective upon giving written notice to the Corporation, unless
the notice specifies a later time for the effectiveness of such
resignation. Directors need not be stockholders.
SECTION 2. NOMINATION OF DIRECTORS.
Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors.
Nominations of persons for election to the Board of Directors of
the Corporation at the Annual Meeting may be made at such meeting
by or at the direction of the Board of Directors, by any
committee or persons appointed by the Board of Directors or by
any stockholder of the Corporation entitled to vote for the
election of directors at the meeting who complies with the notice
procedures set forth in this Article III, Section 2. Such
nominations by any stockholder shall be made pursuant to timely
notice in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice shall be delivered to or mailed
and received at the principal executive offices of the
Corporation not less than fifty (50) days nor more than seventy-
five (75) days prior to the meeting; provided, however, that in
the event that less than sixty-five (65) days' notice or prior
public disclosure of the date of the meeting is given or
4
<PAGE>
made to stockholders, notice by the stockholder to be timely must
be so received not later than the close of business on the
fifteenth day following the day on which such notice of the date
of the meeting was mailed or such public disclosure was made,
whichever first occurs. Such stockholder's notice to the
Secretary shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or reelection as a
director, (a) the name, age, business address and residence
address of the person, (b) the principal occupation or employment
of the person, (c) the class and number of shares of capital
stock of the Corporation which are beneficially owned by the
person, and (d) any other information relating to the person that
is required to be disclosed in solicitations for proxies for
election of directors pursuant to the rules and regulations of
the Securities and Exchange Commission under Section 14 of the
1934 Act; and (ii) as to the stockholder giving the notice (a)
the name and record address of the stockholder; (b) the class and
number of shares of capital stock of the Corporation which are
beneficially owned by the stockholder; (c) a description of all
arrangements or understandings between such stockholder and each
proposed nominee and any other person or persons pursuant to
which the nominations are to be made by the stockholder; (d) a
representation that such stockholder intends to appear in person
or by proxy at the meeting to nominate the person(s) named in the
stockholder's notice; and (e) any other information relating to
such stockholder that would be required to be disclosed in a
proxy statement or other filing required to be made in connection
with solicitations of proxies for election of directors pursuant
to Section 14 of the 1934 Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a
nominee and to serve as director if elected. In addition, the
Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the
Corporation to determine the eligibility of such proposed nominee
to serve as a director of the Corporation. No person shall be
eligible for election as a director of the Corporation unless
nominated in accordance with the procedures set forth herein. The
officer of the Corporation presiding at an Annual Meeting shall,
if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the foregoing
procedure, and if he or she should so determine, he or she shall
so declare to the meeting and the defective nomination shall be
disregarded.
SECTION 3. REMOVAL.
At any meeting of stockholders properly called for such purpose
and with prior notice thereof and subject to the limitations set
forth in Section 141(k) of the General Corporation Law of
Delaware, all the directors, or all the directors of a particular
class, or any individual director, may be removed, with or
without cause, by the affirmative vote of a majority of the
issued and outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class).
SECTION 4. VACANCIES.
Any vacancy on the Board of Directors, howsoever resulting, may
be filled by a majority of the directors then in office, even if
less than a quorum, or by a sole remaining director. Any director
elected to fill a vacancy shall hold office until a successor is
elected at an Annual Meeting of Stockholders. A vacancy or
vacancies shall be deemed to exist in the case of death,
resignation or removal of any director, or if stockholders
increase the authorized number of directors or fail to elect the
full number of authorized directors. If a director tenders his
resignation to the Board of Directors, the Board may elect a
successor to take office at such time as the resignation becomes
effective. No reduction of the number of directors shall have the
effect of removing a director prior to the expiration of his term
of office.
SECTION 5. DUTIES AND POWERS.
The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors which may
exercise all such powers of the Corporation and do all such
lawful acts and things
5
<PAGE>
as are not by statute or by the Certificate of Incorporation or
by these Bylaws directed or required to be exercised or done by
the stockholders.
SECTION 6. CHAIRMAN OF THE BOARD OF DIRECTORS.
The Chairman of the Board of Directors shall preside at all
meetings of the Board of Directors, and shall exercise and
perform such other powers and duties as may be from time to time
assigned to him by the Board of Directors or as prescribed by
these Bylaws. The Chairman of the Board of Directors shall be a
non-officer position.
SECTION 7. MEETINGS.
The Board of Directors of the Corporation may hold meetings, both
regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as may from time to
time be determined by the Board of Directors. Special meetings of
the Board of Directors may be called by the Chairman of the Board
of Directors, the President, or by a majority of the Board of
Directors. Notice thereof, stating the place, date and hour of
the meeting, shall be given to each director either by mail not
less than four (4) days before the date of the meeting, or
personally or by telephone, facsimile, telegram, telex or similar
means of communication on twelve (12) hours' notice, or on such
shorter notice as the person or persons calling such meeting may
deem necessary or appropriate in the circumstances.
SECTION 8. QUORUM; ACTION OF BOARD OF DIRECTORS.
Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, at all meetings of
the Board of Directors, a majority of the entire Board of
Directors shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the
Board of Directors. If a quorum shall not be present at any
meeting of the Board of Directors, a majority of the directors
present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a
quorum shall be present.
SECTION 9. ACTION BY WRITTEN CONSENT.
Any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be taken
without a meeting, if all the members of the Board of Directors
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 of Directors or committee.
SECTION 10. MEETINGS BY MEANS OF CONFERENCE TELEPHONE.
Members of the Board of Directors of the Corporation, or any
committee designated by the Board of Directors, may participate
in a meeting of the Board of Directors or such committee by means
of a conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this
Article III, Section 10 shall constitute presence in person at
such meeting.
SECTION 11. COMMITTEES.
The Board of Directors may, by resolution passed by a majority of
the whole Board of Directors, designate one (1) or more
committees, each committee to consist of one (1) or more of the
directors of the Corporation. The Board of Directors may
designate one (1) or more directors as alternate members of any
committee, who may replace any absent or disqualified member at
any meeting of any such
6
<PAGE>
committee. In the absence or disqualification of a member of a
committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or
disqualified member, 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 absent or disqualified member.
Any committee, to the extent allowed by law and provided in the
resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors
in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to
all papers which may require it. No such committee shall have
power or authority in reference to amending the Certificate of
Incorporation of the Corporation, adopting an agreement of merger
or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of
dissolution, or amending these Bylaws; and, unless the resolution
expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of
stock. Unless the Board of Directors otherwise provides, each
committee designated by the Board may make, alter and repeal
rules for the conduct of its business. In the absence of such
rules, each committee shall conduct its business in the same
manner as the Board of Directors conducts its business pursuant
to these Bylaws.
The Board of Directors shall appoint a committee designated the
Audit Committee of which at least a majority of members are
independent directors, and the Board of Directors shall have the
power to appoint the Chairman of the Audit Committee.
SECTION 12. FEES AND COMPENSATION.
Directors and members of committees may receive such
compensation, if any, for their services, and such reimbursement
for expenses, as may be fixed or determined by the Board of
Directors from time to time. Nothing herein shall preclude any
director from serving the Corporation in any other capacity and
receiving compensation therefor.
SECTION 13. MANDATORY RETIREMENT.
Directors shall retire at the Annual Meeting of Stockholders held
after such director attains age 76. Directors who are in office
as of the date of adoption of this Section 13 shall retire at the
Annual Meeting of Stockholders held after such director attains
age 80.
ARTICLE IV
OFFICERS
SECTION 1. GENERAL.
The officers of the Corporation shall be chosen by the Board of
Directors and shall be a President, a Secretary and a Treasurer.
The Board of Directors, in its sole discretion, may also choose a
Vice Chairman of the Board of Directors (who must be a director),
one or more Executive Vice Presidents, Senior Vice Presidents,
Vice Presidents, Assistant Secretaries, Assistant Treasurers and
other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of
Incorporation or these Bylaws. The salaries of all officers shall
be fixed by the Board of Directors, or a committee thereof.
7
<PAGE>
SECTION 2. ELECTION.
The Board of Directors shall elect the officers of the
Corporation 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 solely by the Board of Directors,
which determination may be by resolution of the Board of
Directors or in any bylaw provision duly adopted or approved by
the Board of Directors; and all officers of the Corporation shall
hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring
in any office of the Corporation may be filled only by the Board
of Directors.
SECTION 3. REMOVAL AND RESIGNATION OF OFFICERS.
Subject to the right, if any, of an officer under any contract of
employment, any officer may be removed, either with or without
cause, by the Board of Directors, at any regular or special
meeting thereof, or except in the case of an officer chosen by
the Board of Directors, by any officer upon whom such power of
removal may be conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to
the Board of Directors or to the President or Secretary of the
Corporation. Any such resignation shall take effect upon the date
of receipt of such notice or at any later time specified therein;
and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. Any such
resignation is without prejudice to the rights, if any of the
Corporation under any contract to which the officer is a party.
SECTION 4. PRESIDENT.
The President shall be the Chief Executive Officer of the
Corporation and shall report and be subject to the control of the
Board of Directors and shall supervise and control the conduct of
the operations of the Corporation and its officers to achieve the
Corporation's objectives and to ensure that the activities of the
various subsidiaries, divisions and other operating units of the
Corporation are properly coordinated. The President shall perform
all duties incident to the office of the Chief Executive Officer
and such other duties as from time to time may be assigned or
delegated to him by the Board of Directors.
The President shall be a member EX OFFICIO of all committees
created by the Board of Directors, excluding the Audit Committee
and any committee to which he has been designated a regular
member by the Board of Directors. He shall have the right to
delegate any of his powers to any other officer or employee.
During the absence, disability, or at the request of the Chairman
of the Board of Directors, the President shall perform the duties
and exercise the powers of the Chairman of the Board of
Directors. In the absence or disability of both the President and
the Chairman of the Board of Directors, the person designated by
the Board of Directors shall perform the duties and exercise the
powers of the President, and unless otherwise determined by the
Board, the duties and powers of the Chairman.
SECTION 5. VICE PRESIDENTS.
In the absence or disability of the President, the Vice
Presidents, in order of their rank as fixed by the Board of
Directors, or if not ranked, the Vice President designated by the
Board of Directors, shall have all powers of, and be subject to,
all limitations on the powers of, the President. Each Vice
President shall have such other powers and perform such other
duties as from time to time may be prescribed by the Board of
Directors or these Bylaws or are incident to the office of Vice
President.
8
<PAGE>
SECTION 6. SECRETARY.
The Secretary shall keep or cause to be kept, at the principal
office or such other place as the Board of Directors may order, a
book of minutes of all meetings of stockholders, the Board of
Directors and its committees, with the time and place of holding,
whether regular or special, and if special, how authorized, the
notice thereof given, the names of those present at Board of
Directors and committee meetings, the number of shares present or
represented at stockholders' meetings, and the proceedings
thereof. The Secretary shall keep, or cause to be kept, a copy of
the Bylaws of the Corporation at the principal office or business
office of the Corporation.
The Secretary shall keep, or cause to be kept, at the principal
office or at the office of the Corporation's transfer agent or
registrar, if one be appointed, a stock register, or a duplicate
stock register, showing the names of the stockholders and their
addresses, the number and classes of shares held by each, the
number and date of certificates issued for the same, and the
number and date of cancellation of every certificate surrendered
for cancellation. The Secretary shall give, or cause to be given,
notice of all meetings of the stockholders and of the Board of
Directors and any committees thereof required by these Bylaws or
by law to be given, shall keep the seal of the Corporation in
safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or
these Bylaws.
SECTION 7. TREASURER.
The Treasurer shall have the custody of the corporate funds and
securities of the Corporation and shall keep and maintain, or
cause to be kept and maintained, adequate and correct accounts of
the properties and business transactions of the Corporation
including, but not limited to, accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital,
surplus and shares. Any surplus, including earned surplus, paid-
in surplus, and surplus arising from a reduction of stated
capital, shall be classified according to source and shown in a
separate account. The books of account shall at all times be open
to inspection by any director. The Treasurer shall send or cause
to be sent to the stockholders of the Corporation such financial
statements and reports as are by law or these Bylaws required to
be sent to them.
The Treasurer shall deposit all moneys and valuables in the name
and to the credit of the Corporation with such depositaries as
may be designated by the Board of Directors. The Treasurer shall
disburse the funds of the Corporation as may be ordered by the
Board of Directors, shall render to the President and directors,
whenever they request it, an account of all transactions and of
the financial condition of the Corporation, and shall have such
other powers and perform such other duties as may be prescribed
by the Board of Directors.
SECTION 8. OTHER OFFICERS.
Such other officers or assistant officers as the Board of
Directors may choose shall perform such duties and have such
powers as from time to time may be assigned to them by the Board
of Directors. The Board of Directors may delegate to any other
officer of the Corporation the power to choose such other
officers and to prescribe their respective duties and powers.
SECTION 9. EXECUTION OF CONTRACTS AND OTHER DOCUMENTS.
Any officer of the Corporation may execute, affix the corporate
seal and/or deliver, in the name and on behalf of the
Corporation, deeds, mortgages, notes, bonds, contracts,
agreements, powers of attorney, guarantees, settlements,
releases, evidences of indebtedness, conveyances, or any other
document or instrument which is authorized by the Board of
Directors (which authorization may be general or
9
<PAGE>
confined to specific instances) or is required to be executed in
the ordinary course of business, except in cases where the
execution, affixation of the corporate seal and/or delivery
thereof shall be expressly and exclusively delegated by the Board
of Directors to some other officer or agent of the Corporation.
ARTICLE V
STOCK
SECTION 1. FORM OF CERTIFICATES.
Every holder of stock in the Corporation shall be entitled to
have a certificate signed, in the name of the Corporation (i) by
the Chairman or Vice Chairman of the Board of Directors, or by
the President or any Vice President, and (ii) by the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary
of the Corporation, certifying the number of shares owned by him
in the Corporation. Certificates for shares may be issued prior
to full payment under such restrictions and for such purposes as
the Board of Directors or these Bylaws may provide; provided,
however, that any such certificate so issued prior to full
payment shall state the amount remaining unpaid and the terms of
payment thereof. Any stock certificate shall also contain such
legend or other statement as may be required by law or by any
agreement between the Corporation and the issuee thereof.
SECTION 2. SIGNATURES.
Where a certificate is countersigned by (i) a transfer agent
other than the Corporation or its employee or (ii) a registrar
other than the Corporation or its employee, any other signature
on the 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.
SECTION 3. LOST CERTIFICATES.
The Board of Directors may direct a new certificate to be issued
in place of any certificate theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate, the Board of
Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or
destroyed certificate, or his legal representative, to advertise
the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against
the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
SECTION 4. TRANSFERS.
Transfers of shares of capital stock of the Corporation shall be
made on the stock record of the Corporation only by the holder of
record thereof or by his attorney thereunto authorized by the
power of attorney duly executed and filed with the Secretary of
the Corporation or the transfer agent thereof, and only on
surrender of the certificate or certificates representing such
shares, properly endorsed or accompanied by a duly executed stock
transfer power. The Board of Directors may make such additional
rules and regulations as it may deem expedient concerning the
issue and transfer of certificates representing shares of the
capital stock of the Corporation.
10
<PAGE>
SECTION 5. RECORD DATE.
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor
less than ten (10) days before the date of such meeting, nor more
than sixty (60) days prior to any other action. A determination
of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting. The Board of Directors
may close the books against transfers of shares during the whole
or any part of such period.
SECTION 6. BENEFICIAL OWNERS.
The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books
as the owner of shares, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by
law.
SECTION 7. TRANSFER AGENTS AND REGISTRARS.
The Board of Directors may from time to time appoint one or more
transfer agents and registrars in one or more cities; may require
all certificates evidencing shares of stock of the Corporation to
bear the signature of a transfer agent and registrar; and may
provide that such certificates shall be transferable in more than
one city.
ARTICLE VI
NOTICES
SECTION 1. NOTICES.
Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, to be given to any director or
stockholder, such notice may be given by mail, addressed to such
director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Written notice may
also be given personally or by telegram, telex, cable or
facsimile transmission followed, if required by law, by deposit
in the United States mail, with postage prepaid. If a stockholder
supplies no address, notice shall be deemed to have been given if
mailed to the principal office of the Corporation, or published
at least once in a newspaper of general circulation in the county
in which the Corporation's principal office is located.
SECTION 2. WAIVERS OF NOTICE.
Whenever any notice is required by law, the Certificate of
Incorporation or these Bylaws, to be given to any director or
stockholder, a waiver thereof in writing, signed by the person or
persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. Attendance of
a person at a meeting, in person or by proxy in the case of
stockholders, shall constitute a waiver of
11
<PAGE>
notice of such meeting, except when the person 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 stockholders, directors or members of a committee of
directors need be specified in any written waiver of notice
unless so required by law, the Certificate of Incorporation or
these Bylaws.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS.
Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, if any, may
be declared by the Board of Directors at any regular or special
meeting, and may be paid in cash, in property, or in shares of
the capital stock. 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 of Directors 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 any proper purpose, and the Board of Directors may modify or
abolish any such reserve.
SECTION 2. DISBURSEMENTS.
All checks or demands for money and notes of the Corporation or
other evidences of indebtedness of the Corporation shall be
signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time
designate.
SECTION 3. FISCAL YEAR.
The fiscal year of the Corporation shall be fixed by resolution
of the Board of Directors.
SECTION 4. ANNUAL REPORT.
The Board of Directors of the Corporation shall cause an annual
report to be sent to the stockholders not later than one hundred
twenty (120) days after the close of the fiscal year. Such report
shall be sent at least ten (10) days prior to the Annual Meeting
of stockholders to be held during the next fiscal year and in the
manner specified in these Bylaws for giving notice to
stockholders of the Corporation. The annual report shall contain
a balance sheet as of the end of such fiscal year and an income
statement and statement of changes in financial position of such
fiscal year, accompanied by a report thereon of independent
accountants or, if there is no such report, the certificate of an
authorized officer of the Corporation that such statements were
prepared without audit from the books and records of the
Corporation.
SECTION 5. VOTING SECURITIES OWNED BY THE CORPORATION.
Powers of attorney, proxies, waivers of notice of meeting,
consents and other instruments relating to securities owned by
the Corporation may be executed in the name of and on behalf of
the Corporation by the Chairman of the Board of Directors or the
President or any other officer or officers authorized by the
Board of Directors, the Chairman of the Board of Directors or the
President, and any such officer may, in the name of and on behalf
of the Corporation, vote, represent and exercise on behalf of the
Corporation all rights incident to any and all shares of any
other corporation or corporations standing in
12
<PAGE>
the name of the Corporation and take all such action as any such
officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the
Corporation may own securities and at any such meeting shall
possess and may exercise any and all rights and power incident to
the ownership of such securities and which, as the owner thereof,
the Corporation might have exercised and possessed if present.
The Board of Directors may, by resolution, from time to time
confer like powers upon any other person or persons.
SECTION 6. INSPECTION OF BYLAWS.
This Corporation shall keep in its principal office for the
transaction of business, the original or a copy of these Bylaws
as amended or otherwise altered to date, certified by the
Secretary of the Corporation, which shall be open to inspection,
upon prior written demand delivered to the Secretary of the
Corporation, by the stockholders at all reasonable times during
office hours.
SECTION 7. INSPECTION OF CORPORATE RECORDS.
Any stockholder, in person of by an attorney or other agent,
shall upon written demand under oath stating the purpose thereof,
have the right during the usual hours for business to inspect for
any purpose reasonably related to such person's interest as a
stockholder, the Corporation's stock ledger, a list of its
stockholders, and its other books and records, and to make copies
or extracts therefrom.
SECTION 8. CORPORATE SEAL.
The corporate seal, if any, shall be circular in form and shall
have inscribed thereon the name of the Corporation, the date of
incorporation and the word "Delaware."
ARTICLE VIII
INDEMNIFICATION
SECTION 1. AGENTS, PROCEEDINGS AND EXPENSES.
For the purposes of this Article, "agent" means any person who is
or was a director, officer, employee, or other agent of this
Corporation, or is or was serving at the request of this
Corporation as a director, officer, employee, or agent of another
foreign or domestic corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, or was a
director, officer, employee, or agent of a foreign or domestic
corporation which was a predecessor corporation of this
Corporation or of another enterprise at the request of such
predecessor corporation; "proceeding" means any threatened,
pending or completed action or proceeding, whether civil,
criminal, administrative, or investigative; and "expenses"
includes, without limitation, attorneys' fees and any expenses of
establishing a right to indemnification under this Article VIII.
SECTION 2. ACTIONS OTHER THAN BY THE CORPORATION.
Subject to Section 4 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be
made a party to any proceeding (other than an action by or in the
right of the Corporation) by reason of the fact that such person
is or was an agent of this Corporation against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with
such proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
the conduct of such person was unlawful. The termination of any
proceeding by judgment,
13
<PAGE>
order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which
such person reasonably believed to be in or not opposed to the
best interests of the Corporation, or that the person had
reasonable cause to believe that his conduct was unlawful.
SECTION 3. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION.
Subject to Section 4 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that such person is or was an
agent of the Corporation against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by
him (including attorneys' fees) in connection with such action,
suit or proceeding if such person acted in good faith and in a
manner that such person reasonably believed to be in or not
opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any proceeding,
claim, issue or matter as to which such person shall have been
adjudged to be liable for gross negligence or misconduct in the
performance of his or her duty to the Corporation unless and only
to the extent that the Delaware Court of Chancery or the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs which
the Delaware Court of Chancery or such other court shall deem
proper.
SECTION 4. AUTHORIZATION OF INDEMNIFICATION.
Any indemnification under this Article VIII (unless ordered by a
court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the
agent is proper in the circumstances because such agent has met
the applicable standard of conduct set forth in Section 2 or
Section 3 of this Article VIII, as the case may be. Such
determination shall be made (a) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not
parties to such proceeding, or (b) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (c) by the stockholders. To the extent, however, that
an agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person
in connection therewith, without the necessity of authorization
in the specific case.
SECTION 5. GOOD FAITH DEFINED.
For purposes of any determination under Section 3 of this Article
VIII, a person shall be deemed to have acted in good faith and in
a manner such person reasonably believed to be in or not opposed
to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to
believe such person's conduct was unlawful, if such person's
action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to
such person by the officers of the Corporation or another
enterprise in the course of their duties, or on the advice of
legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation
or another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with
reasonable care by the Corporation or another enterprise. The
term "another enterprise" as used in this Section 5 of this
Article VIII shall mean any other corporation or any partnership,
joint venture, trust, employee benefit plan or other enterprise
of which such person is or was serving at the request of the
Corporation as an agent. The provisions of this Section 5 of this
Article VIII shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed to have
met the applicable standard of conduct set forth in Section 2 or
Section 3 of this Article VIII, as the case may be.
14
<PAGE>
SECTION 6. INDEMNIFICATION BY A COURT.
Notwithstanding any contrary determination in the specific case
under Section 4 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any agent may apply to
any court of competent jurisdiction in the State of Delaware for
indemnification to the extent otherwise permissible under
Sections 2 and 3 of this Article VIII. The basis of such
indemnification by a court shall be a determination by such court
that indemnification of the agent is proper in the circumstances
because such agent has met the applicable standards of conduct
set forth in Section 2 or Section 3 of this Article VIII, as the
case may be. Neither a contrary determination in the specific
case under Section 4 of this Article VIII nor the absence of any
determination thereunder shall be a defense to such application
or create a presumption that the agent seeking indemnification
has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 6 of
this Article VIII shall be given to the Corporation promptly upon
the filing of such application. If successful, in whole or in
part, the agent seeking indemnification shall also be entitled to
be paid the expense of prosecuting such application.
SECTION 7. EXPENSES PAYABLE IN ADVANCE.
Expenses incurred by an agent in defending any proceeding shall
be paid by the Corporation in advance of the final disposition of
such proceeding upon receipt of an undertaking by or on behalf of
such agent to repay such amount if it shall ultimately be
determined that such agent is not entitled to be indemnified by
the Corporation as authorized in this Article VIII.
SECTION 8. OTHER RIGHTS AND REMEDIES.
The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed
exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any Bylaw, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever
embodied) of any court of competent jurisdiction or otherwise,
both as to action in such person's official capacity and as to
action in another capacity while holding such office, it being
the policy of the Corporation that indemnification of the persons
specified in Sections 1, 2 and 3 of this Article VIII shall be
made to the fullest extent permitted by law. The provisions of
this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 1,
Section 2 or Section 3 of this Article VIII but whom the
Corporation has the power or obligation to indemnify under the
provisions of the General Corporation Law of the State of
Delaware, or otherwise.
SECTION 9. INSURANCE.
The Corporation may purchase and maintain insurance on behalf of
any person who 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 or agent of another
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, against any liability asserted against
such person and incurred by such person in any such capacity, or
arising out of his status as such, whether or not the Corporation
would have the power or the obligation to indemnify such person
against such liability under the provisions of this Article VIII.
SECTION 10. CERTAIN DEFINITIONS.
For purposes of this Article VIII, references to "the
Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors and officers,
so that any person who is or was a director or officer of such
constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust,
employee
15
<PAGE>
benefit plan or other enterprise, shall stand in the same
position under the provisions of this Article VIII with respect
to the resulting or surviving corporation as such person would
have with respect to such constituent corporation if its separate
existence had continued. For purposes of this Article VIII,
references to "fines" shall include any excise taxes assessed on
a person with respect to an employee benefit plan; and references
to "serving at the request of the Corporation" shall include any
service as a director or officer of the Corporation which imposes
duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the
best interests of the Corporation" as referred to in this Article
VIII.
SECTION 11. SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES.
The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall, unless otherwise
provided when authorized or ratified, continue as to a person who
has ceased to be a director or officer of the Corporation and
shall inure to the benefit of the heirs, executors and
administrators of such a person.
SECTION 12. LIMITATION ON INDEMNIFICATION.
Notwithstanding anything contained in this Article VIII to the
contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Section 6 of this
Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding
(or part thereof) initiated by such person unless such proceeding
(or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
SECTION 13. INVALIDATION.
If this Article VIII or any portion hereof shall be invalidated
on any ground by a court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director, officer,
employee and agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and
amounts paid in any judgment or settlement with respect to any
action, suit or proceeding, whether civil, criminal,
administrative or investigative, including any action by or in
the right of the Corporation, to the full extent permitted by any
applicable portion of this Article VIII that shall not have been
invalidated and to the full extent permitted by applicable law.
ARTICLE IX
AMENDMENTS
SECTION 1. AMENDMENT BY STOCKHOLDERS.
Subject to the provisions of the Certificate of Incorporation,
these Bylaws may be altered, amended or repealed at any regular
meeting of the Stockholders (or at a special meeting duly called
for that purpose) by the approval of not less than a majority of
all shares of the Corporation entitled to vote in the election of
Directors considered for the purposes of this Article IX as
voting as one class; provided, however, that in the notice of
such special meeting, notice of such purpose shall be given.
SECTION 2. AMENDMENT BY DIRECTORS.
Subject to the laws of the State of Delaware, the Certificate of
Incorporation and these Bylaws, the Board of Directors may by the
majority vote of those Directors present at any meeting of the
Board of Directors at which a quorum is present amend these
Bylaws or enact such other Bylaws as in their judgment may be
advisable for the regulation of the conduct of the affairs of the
Corporation.
16
