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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): November 22, 1998
TECHNOLOGY SOLUTIONS COMPANY
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 0-19433 36-3584201
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
205 North Michigan Avenue, Suite 1500, Chicago, IL 60601
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (312) 228-4500
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Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS.
On November 22, 1998, the Board of Directors (the "Board") of
Technology Solutions Company (the "Company") authorized a stock repurchase
program pursuant to which the Company may, from time to time, acquire up to two
million shares of the Company's common stock in the open market or through
privately negotiated transactions.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) FINANCIAL STATEMENTS OF BUSINESSES ACQUIRED:
Not applicable.
(b) PRO FORMA FINANCIAL INFORMATION:
Not applicable.
(c) EXHIBITS:
3 By-laws of the Company, effective November 22, 1998.
ITEM 8. CHANGE IN FISCAL YEAR.
On November 22, 1998, the Board also voted to change the fiscal year
of the Company from a fiscal year ending on the thirty-first day of May in each
year to a fiscal year ending on the thirty-first day of December in each year.
The change in fiscal year was effected by the Board's approval of an amendment
to the Company's By-laws. The transition report covering the period from June 1,
1998 through December 31, 1998 will be filed on Form 10-K.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
TECHNOLOGY SOLUTIONS COMPANY
Date: November 30, 1998 By: John T. Kohler
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Name: John T. Kohler
Title: President and
Chief Executive Officer
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EXHIBIT INDEX
The following Exhibits are filed herewith:
EXHIBIT NO. DESCRIPTION
3 By-laws of the Company, effective November 22, 1998.
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BY-LAWS FOR TECHNOLOGY SOLUTIONS COMPANY
A Delaware Corporation
Effective November 22, 1998
ARTICLE I
STOCKHOLDERS
Section 1.1. ANNUAL MEETING. The annual meeting of stockholders for
the election of directors and the transaction of such other business as may
properly come before it shall be held on the second Monday of May of each year,
or such other date, and at such time and place, within or without the State of
Delaware, as shall be determined by the resolution of the Board of Directors.
If the day fixed for the annual meeting is a legal holiday, such meeting shall
be held on the next succeeding business day. If the election of directors shall
not be held on the day designated herein for the annual meeting of the
stockholders, or at any adjournment thereof, the Board of Directors shall cause
the election to be held at a special meeting of the stockholders as soon
thereafter as is convenient.
Section 1.2. SPECIAL MEETINGS. Subject to the rights of the holders
of any Preferred Stock (as defined in the Certificate of Incorporation) to elect
additional directors under specific circumstances, special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the Chairman of
the Board or the President and shall be called by the Chairman of the Board or
the President or Secretary at the request in writing of a majority of the Board
of Directors. Such request shall state the purpose or purposes of the proposed
meeting. Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. A special meeting of stockholders may be held
at such time and at such place, within or without the State of Delaware, as may
be determined by resolution of the Board of Directors. If no designation of the
place is made for the meeting, the place of the meeting shall be the principal
business office of the Corporation in the State of Illinois.
Section 1.3. NOTICE OF MEETINGS AND ADJOURNED MEETINGS. Written
notice of every meeting of stockholders stating the place, date, time and
purposes thereof, shall, except when otherwise required by the Certificate of
Incorporation or the laws of the State of Delaware, be delivered at least ten
but not more than sixty days prior to the meeting to each stockholder of record
entitled to vote thereat, either personally or by mail, by or at the direction
of the President, the Secretary, or the officer or persons calling the meeting.
If mailed, such notice
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shall be deemed to be given when deposited in the United States mail,
addressed to the stockholder at his address as it appears on the records of
the Corporation. Any meeting at which a quorum of stockholders is present,
in person or by proxy, may adjourn from time to time without notice, other
than announcement at such meeting, until its business is completed. At the
adjourned meeting, the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than
30 days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 1.4. QUORUM. Except as otherwise provided by law, a
majority of the shares entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of stockholders, except that when
specified business is to be voted on by a class or series voting as a class, the
holders of a majority of the voting power of the shares of such class or series
shall constitute a quorum for the transaction of such business. If at any
meeting a quorum is not present, the Chairman of such meeting shall (or may)
adjourn, by the affirmative vote of a majority of the shares so represented, the
meeting to another time and/or place without notice other than announcement at
such meeting. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting. 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 called, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
Section 1.5. VOTING. Unless otherwise provided by the Certificate of
Incorporation or these By-Laws, each stockholder entitled to vote at any meeting
of stockholders is entitled to one vote for each share of stock held by him
which has voting power upon the matter in question. If a quorum is present, the
affirmative vote of a majority of the shares represented at the meeting and
entitled to vote on the subject matter shall be the act of the stockholders for
all matters, unless the vote of a greater number or voting by classes is
required by Delaware law, the Certificate of Incorporation, or these By-laws.
Section 1.6. PROXIES. At every meeting of the stockholders, each
stockholder having the right to vote thereat shall be entitled to vote in person
or by proxy. Such proxy shall be executed in writing and shall be filed with
the Secretary of the Corporation before or at the time of the meeting. No
proxy shall be valid after three years from the date of its execution, unless
otherwise provided in the proxy.
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Section 1.7. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF
RECORD; DETERMINING VALIDITY OF CONSENTS. (a) 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 purpose, except to express consent to
corporate action in writing without a meeting, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty 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.
(b) In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the stockholders authorize
or take corporate action by written consent shall, by written notice to the
Secretary, request the Board of Directors to fix a record date. The Board of
Directors shall promptly, but in all events within ten days after the date on
which such a request is received, adopt a resolution fixing the record date. If
no record date has been fixed by the Board of Directors within ten days of the
date on which such a request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or any officer or agent of the Corporation having
custody of the book in which proceedings of stockholders meetings are recorded,
to the attention of the Secretary of the Corporation. Delivery shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the Board of
Directors adopts the resolution taking such prior action.
(c) In the event of the delivery to the Corporation of a written consent
or consents purporting to authorize or take
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corporate action and/or related revocations (each such written consent or
related revocation is referred to in this section as a "Consent"), the
Secretary of the Corporation shall provide for safekeeping of such Consent
and shall immediately appoint duly qualified and independent inspectors to
(i) conduct promptly such reasonable ministerial review as such inspectors
deem necessary or appropriate for the purpose of ascertaining the sufficiency
and validity of such Consent and all matters incident thereto, including,
without limitation, whether holders of shares having the requisite voting
power to authorize or take the action specified in the Consent have given
consent and (ii) deliver to the Secretary a written report regarding the
foregoing. If after such investigation and report the Secretary shall
determine that the Consent is valid, that fact shall be certified on the
records of the Corporation kept for the purpose of recording the proceedings
of meetings of stockholders, and the Consent shall be filed in such records,
at which time the Consent shall become effective as stockholder action.
Section 1.8. STOCKHOLDER LIST. The Secretary or the officer who has
charge of the stock ledger of the Corporation shall prepare and make, at least
ten days before every meeting of the stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, for a period of at
least 10 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 time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is present.
The stock ledger shall be the only evidence as to who are the stockholders
entitled to examine such list or to vote in person or by proxy at any meeting of
stockholders.
Section 1.9. VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing
in the name of another corporation, domestic or foreign, and entitled to vote
may be voted by such officer, agent, or proxy as the by-laws of such corporation
may prescribe or, in the absence of such provision, as the board of directors of
such corporation may determine.
Shares standing in the name of a deceased person, a minor, an
incompetent or a corporation declared bankrupt and entitled to vote may be voted
by his administrator, executor, guardian, or conservator, as the case may be,
either in person or by proxy without transfer of such shares into his name.
A stockholder whose shares are pledged shall be entitled to vote such
shares unless in the transfer books of the Corporation the pledgor has expressly
empowered the pledgee to
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vote thereon, in which case only the pledgee, or his proxy, may represent
such stock and vote thereon.
Shares of its own stock belonging to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors of such other corporation is held by this corporation, shall not be
voted at any meeting and shall not be counted in determining the total number of
outstanding shares for the purpose of determining whether a quorum is present.
Nothing in this section shall be construed to limit the right of this
Corporation to vote shares of its own stock held by it in a fiduciary capacity.
Section 1.10. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Any action
required to be taken or which may be taken at any annual or special meeting of
stockholders of the Corporation, may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by persons entitled to vote stock
representing not less than the number of shares necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted. Every written consent shall bear the date of signature of
each stockholder or his representative who signs the consent. 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. Such consents shall be delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal office in the State of
Illinois or the Secretary of the Corporation. Delivery made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. No written consent shall be effective to take
the corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered in the manner required by this Section 1.10 to
the Corporation, written consents signed by a sufficient number of stockholders
to take action are delivered to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of business or the
Secretary of the Corporation. Delivery made to the Corporation's registered
office shall be by hand or by certified or registered mail, return receipt
requested. Such consents shall be filed with the minutes of proceedings of the
stockholders and actions authorized or taken under such consents shall have the
same force and effect as those adopted by stockholders' vote at their meetings.
Section 1.11. NOTICE OF STOCKHOLDER BUSINESS. (a) At any annual
meeting of the Corporation's stockholders, only such business shall be conducted
as shall have been properly brought before the meeting. To be properly brought
before an annual meeting, business must be (i) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (ii) otherwise properly brought before the
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meeting by or at the direction of the Board of Directors, or (iii) otherwise
properly brought before the meeting by a stockholder of record entitled to
vote at such meeting who has complied with the provisions of this Section
1.11. Business may be properly brought before an annual meeting by a
stockholder only if written notice of the stockholder's intent to propose
such business has been delivered to the Secretary of the Corporation not less
than 90 nor more than 120 calendar days in advance of the anniversary date of
the preceding year's annual meeting of stockholders, except that if no annual
meeting was held in the previous year or the date of the annual meeting has
been changed by more than 30 calendar days from the anniversary of the
preceding year's annual meeting date, written notice of a stockholder
proposal shall be delivered to the Secretary of the Corporation not later
than the close of business on the 10th day following the first public
announcement of the date of such annual meeting. Delivery shall be by hand
or by certified or registered mail, return receipt requested. In no event
shall the public announcement of an adjournment of an annual meeting commence
a new time period for the giving of stockholder's notice as described above.
(b) Each notice of new business must set forth: (i) the name and
address of the stockholder who intends to raise the new business; (ii) the
business desired to be brought forth at the meeting and the reasons for
conducting such business at the meeting; (iii) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote
with respect to such business and intends to appear in person or by proxy at the
meeting to move the consideration of such business; (iv) such stockholder's
total beneficial ownership of the Corporation's voting stock; and (v) such
stockholder's interest in such business. The chairman of the meeting may refuse
to acknowledge a motion to consider any business that he determines was not made
in compliance with the foregoing procedures.
(c) For purposes of these by-laws, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Securities Exchange Act of 1934, as amended.
Section 1.12. NOMINATION OF DIRECTORS. (a) Nominations for the
election of directors may be made by the Board of Directors or a committee
appointed by the Board of Directors or by any stockholder entitled to vote in
the election of directors generally. However, subject to the rights of the
holder of any Preferred Stock, any stockholder entitled to vote in the
election of directors may nominate one or more persons for election as
director(s) at a meeting only if written notice of such stockholder's intent
to make such nomination or nominations has been delivered to the Secretary of
the Corporation not later
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than (i) with respect to an election to be held at an annual meeting of
stockholders, not less than 90 nor more than 120 days in advance of the
anniversary date of the preceding year's annual meeting of stockholders,
except that if no annual meeting was held in the previous year or the date of
the annual meeting has been changed by more than 30 calendar days from the
anniversary of the preceding year's annual meeting date, written notice of a
nominee proposal shall be delivered to the Secretary of the Corporation not
later than the close of business on the 10th day following the first public
announcement of the date of such annual meeting, and (ii) with respect to an
election to be held at a special meeting of stockholders for the election of
directors, the close of business on the 10th day following the first public
announcement of the date of such meeting. Delivery shall be by hand or by
certified or registered mail, return receipt requested. In no event shall
the public announcement of an adjournment of any annual or special meeting
commence a new time period for the giving of a stockholder's notice as
described above.
(b) Each such notice shall set forth: (i) the name and address of
the stockholder who intends to make the nomination and of the person or persons
to be nominated; (ii) such stockholder's total beneficial ownership of the
Corporation's voting stock; (iii) a representation that the stockholder is a
holder of record of stock of the Corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (iv) a description of all agreements,
arrangements or understandings between the stockholder 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 by the stockholder; (v) such other
information regarding each nominee proposed by such stockholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission had the nominee been nominated, or
intended to be nominated, by the Board of Directors; and (vi) the written
consent of each nominee to serve as a director of the Corporation if so elected.
ARTICLE II
DIRECTORS
Section 2.1. GENERAL POWERS. The business and affairs of the
Corporation shall be managed by or under the direction of its Board of
Directors.
Section 2.2. NUMBER, ELECTION AND TERM OF OFFICE OF DIRECTORS.
Subject to the rights of holders of any series of Preferred Stock to elect
directors under specified circumstances,
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the Board of Directors of the Corporation shall consist of such number of
Directors, not less than six and not more than twelve as shall be fixed from
time to time by the Board of Directors. A minimum of two directors shall be
elected annually by the stockholders as provided by Sections 1.1 and 1.5 of
these By-Laws and by the Certificate of Incorporation. Each director elected
shall hold office until his successor is elected and qualified, or until his
earlier death, removal or resignation. The maximum term a director may serve
without being re-elected by the stockholders shall be three years. Directors
need not be residents of the State of Delaware or stockholders of the
Corporation.
Section 2.3. RESIGNATION. Any director may resign by giving written
notice to the Board of Directors or the President. Any such resignation shall
take effect at the time of receipt of notice thereof or at any later time
specified therein, and, unless expressly required, acceptance of such
resignation shall not be necessary to make it effective.
Section 2.4. VACANCIES. Subject to the rights of the holders of any
series of Preferred Stock to elect additional directors under specific
circumstances and except as otherwise required by the Certificate of
Incorporation, any vacancy occurring in the Board of Directors, including a
vacancy created by an increase in the number of directors, may be filled for the
remainder of the unexpired term by the affirmative vote of a majority of the
directors then in office, although less than a quorum. No decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director. Except as otherwise required by the Certificate of
Incorporation, when one or more directors shall resign from the Board of
Directors, effective at a future date, a majority of the directors then in
office, including those who have so resigned, shall have the power to fill such
vacancy or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided in this Section for the filling of other vacancies.
Section 2.5. PLACE OF MEETINGS. Meetings of the Board of Directors
may be held at such places, within or without the State of Delaware, as the
Board of Directors may from time to time determine or as may be specified in the
call of any meetings.
Section 2.6. REGULAR MEETINGS. A regular annual meeting of the
Board of Directors shall be held without call or notice immediately after and at
the same general place as the annual meeting of stockholders, for the purpose of
organizing the Board of Directors, electing officers and transacting any other
business that may properly come before the meeting. Additional regular meetings
of the Board of Directors may be held without
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call or notice at such place and at such times as shall be fixed by
resolution of the Board of Directors.
Section 2.7. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the President or the director then in office. Notice
of special meetings shall either be mailed by the Secretary to each director at
least two days before the meeting or be given personally or telegraphed or
telecopied to each director by the Secretary at least twenty-four hours before
the meeting. Such notice shall set forth the date, time and place of such
meeting but need not, unless otherwise required by law, state the purpose of the
meeting. When notice is given by mail, the mail shall be addressed to each
director 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. Any director may
waive notice of any meeting in writing either before or after the meeting.
Section 2.8. QUORUM AND VOTING. A majority of the entire Board of
Directors shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors unless otherwise provided by the laws of the State of Delaware, the
Certificate of Incorporation or these By-Laws. A majority of the directors
present at any meeting at which a quorum is present may adjourn the meeting to
any other date, time or place without further notice other than announcement at
the meeting. If at any meeting a quorum is not present, a majority of the
directors present may adjourn the meeting to any other date, time or place
without notice other than announcement at the meeting until a quorum is present.
Section 2.9. TELEPHONIC MEETINGS. Members of the Board of Directors
or of any committee designated by the Board of Directors may participate in a
meeting of the Board of Directors or a committee thereof by means of conference
telephone or other 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 Section 2.9 shall constitute presence in person at such
meeting.
Section 2.10. COMPENSATION. Unless otherwise restricted by the
Certificate or Incorporation, the Board of Directors shall have the authority to
fix the compensation of directors. The directors shall be paid their reasonable
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
and an annual retainer or salary for services as a director. Members of any
committee of the Board of Directors may be allowed like fees and expenses for
service on or attendance at meetings of such committee. No such payment shall
preclude any director from serving the Corporation
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in any other capacity and receiving compensation therefor. Members of
special or standing committees may be allowed like compensation for attending
committee meetings.
Section 2.11. PRESUMPTION OF ASSENT. Unless otherwise provided by
the laws of the State of Delaware, a director of the Corporation who is present
at a meeting of the Board of Directors at which action is taken on any corporate
matter shall be presumed to have assented to the action taken unless his dissent
shall be entered in the minutes of the meeting or unless he shall file his
written dissent to such action with the person acting as Secretary of the
meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
Section 2.12. ACTION WITHOUT MEETING. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, 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 a written consent thereto
is signed by all members of the Board of Directors or of such committee, as the
case may be, and such written consent is filed with the minutes of proceedings
of the Board of Directors or such committee.
Section 2.13. PRESIDING OFFICER. The presiding officer at any
meeting of the Board of Directors shall be the President or, in his absence, any
other director elected chairman by vote of a majority of the directors present
at the meeting.
Section 2.14. EXECUTIVE COMMITTEE. The Board of Directors may, in
its discretion by resolution passed by a majority of the Board of Directors,
designate an Executive Committee consisting of such number of directors as the
Board of Directors shall determine. The Executive Committee shall have and may
exercise all of the authority of the Board of Directors in the management of the
Corporation with respect to any matter which may require action prior to, or
which in the opinion of the Executive Committee may be inconvenient,
inappropriate or undesirable to be postponed until, the next meeting of the
Board of Directors; provided the Executive Committee shall not have the power or
authority of the Board of Directors in reference to amending the Certificate of
Incorporation, 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 a dissolution, or an amendment
to these By-Laws. Any member of the Board of Directors may request the Chairman
of the Executive Committee to call a meeting of the Executive Committee with
respect to a specified subject.
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Section 2.15. OTHER COMMITTEES. The Board of Directors may from time
to time, in its discretion, by resolution passed by a majority of the Board of
Directors, designate, and appoint, other committees of one or more directors
which shall have and may exercise such lawfully delegable powers and duties
conferred or authorized by the resolutions of designation and appointment. The
Board shall have power at any time to change the members of any such committee,
to fill vacancies, and to discharge any such committee.
Section 2.16. ALTERNATES. The Board of Directors may from time to
time designate from among the directors alternates to serve on one or more
committees as occasion may require. Whenever a quorum cannot be secured for any
meeting of any committee from among the regular members thereof and designated
alternates, the member or members of such committee present at such 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 place of such absent or disqualified member.
Section 2.17. QUORUM AND MANNER OF ACTING COMMITTEES. The presence
of a majority of members of any committee shall constitute a quorum for the
transaction of business at any meeting of such committee, and the act of a
majority of those present shall be necessary for the taking of any action of any
action thereat provided that no action may be taken by any such committee
without the favorable vote of members of the Committee who are not officers or
full-time employees of the Corporation at least equal to the favorable vote of
members of such committee who are officers or full-time employees of the
Corporation.
Section 2.18. COMMITTEE CHAIRMAN, BOOKS AND RECORDS, ETC. The
chairman of each committee shall be selected from among the members of the
committee by the Board of Directors.
Each committee shall keep a record of its acts and proceedings, and
all actions of each committee shall be reported to the Board of Directors at its
next meeting.
Each committee shall fix its own rules of procedure not inconsistent
with these By-Laws or the resolution of the Board of Directors designating such
committee and shall meet at such times and places and upon such call or notice
as shall be provided by such rules.
Section 2.19. RELIANCE UPON RECORDS. Every director of the
Corporation, or member of any committee designated by the Board of Directors
shall be fully protected in relying in good faith upon the records of the
Corporation and upon such information, opinions, reports or statements presented
to the Corporation by any of the Corporation's officers or employees, or
committees of the Board of Directors, or by any other person as to matters the
director or member reasonably believes are within
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such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Corporation, as to
matters the director or member reasonably believes are within such other
person's professional or expert competence and as to the value and amount of
the assets, liabilities and/or net profits of the Corporation, or any other
facts pertinent to the existence and amount of which the Corporation's stock
might properly be purchased or redeemed.
Section 2.20. INTERESTED DIRECTORS. The presence of a director, who
is directly or indirectly a party in a contract or transaction with the
Corporation, or between the Corporation and any other corporation, partnership,
association or other organization in which such director is a director or
officer, or has a financial interest, may be counted in determining whether a
quorum is present and such director may participate in the meeting of the Board
or committee thereof to the extent permitted by applicable law.
ARTICLE III
OFFICERS
Section 3.1. NUMBER AND DESIGNATION. The officers of the
Corporation shall be a President, one or more Vice Presidents, a Secretary and a
Treasurer, and such Assistant Secretaries, Assistant Treasurers or other
officers as may be elected or appointed by the Board of Directors. Any two or
more officers may be held by the same person unless the Certificate of
Incorporation or these By-Laws provide otherwise.
Section 3.2. ELECTION AND TERM OF OFFICE. The officers of the
Corporation shall be elected annually by the Board of Directors at the first
meeting of the Board of Directors held after each annual meeting of
stockholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as conveniently may be.
Vacancies may be filled or new offices created and filled at any meeting of the
Board of Directors. Each officer shall hold office until his or her successor
shall have been duly elected and shall have qualified or until his or her
earlier death, resignation or removal.
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Section 3.3. REMOVAL AND RESIGNATION. Any officer or agent elected
or appointed by the Board of Directors may be removed by the Board of Directors
whenever in its judgment the best interests of the Corporation would be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Any officer may resign at any time by giving
written notice to the Board of Directors, to the President or to the Secretary
of the Corporation. Any such resignation shall take effect at the date of the
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.
Section 3.4. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Section 3.5. PRESIDENT. The President shall be the chief executive
officer of the Corporation and shall in general supervise and control all of the
business and affairs of the Corporation. The President may sign, alone or with
the Secretary or any other proper officer of the Corporation thereunto
authorized by the Board of Directors, any deeds, mortgages, bonds, contracts, or
other instruments which the Board of Directors has authorized to be executed,
except in cases where the signing and execution thereof shall be expressly
delegated by the Board of Directors or by these By-Laws to some other officer or
agent of the Corporation, or shall be required by law to be otherwise signed or
executed, and in general he shall perform all duties incident to the office of
the President and such other duties as from time to time may be prescribed by
the Board of Directors. When present, he shall preside at all meetings of the
stockholders and of the Board of Directors.
Section 3.6. THE VICE PRESIDENTS. In the absence of the President
or in the event of his or her inability or refusal to act, the Vice President
(or in the event there be more than one Vice President, the Vice Presidents in
the order determined by the Board of Directors or if there be no such
determination, then in the order of their election) shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the President. The Board of Directors may also
designate certain Vice Presidents as being in charge of designated divisions,
plants, or functions of the Corporation's business and add appropriate
description to their title. Any Vice President shall perform such duties as
from time to time may be assigned to him by the President or by the Board of
Directors.
Section 3.7. THE TREASURER. The Treasurer shall have charge and
custody of and be responsible for all funds and securities of the Corporation,
receive and give receipts for
<PAGE>
moneys due and payable to the Corporation from any source whatsoever, deposit
all such moneys in the name of the Corporation in such banks, trust companies
or other depositories as shall be selected in accordance with the provisions
of Article IV of these By-Laws, disburse the funds of the Corporation as
ordered by the Board of Directors or the President or as otherwise required
in the conduct of the business of the Corporation, and render to the
President or the Board of Directors, upon request, an account of all his
transactions as Treasurer and on the financial condition of the Corporation.
The Treasurer shall in general perform all the duties incident to the office
of Treasurer and such other duties as from time to time may be assigned to
him by the President or by the Board of Directors. If required by the Board
of Directors, the Treasurer shall give a bond (which shall be renewed
regularly), in such sum and with such surety or sureties as the Board of
Director shall determine for the faithful discharge of his duties and for the
restoration to the Corporation, in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other
property of whatever kind in his possession or under his control belonging to
the Corporation.
Section 3.8. THE SECRETARY. The Secretary shall (a) keep the
minutes of the Stockholders' and of the Board of Directors' meetings and
committees of the Board of Directors in one or more books provided for that
purpose; (b) see that all notices are duly given in accordance with the
provisions of these By-Laws or as required by law; (c) be custodian of the
corporate records and of the seal of the Corporation; (d) affix the seal of the
Corporation or a facsimile thereof, or cause it to be affixed and, when so
affixed, attest the seal by his signature, to all certificates for shares prior
to the issue thereof and to all documents the execution of which on behalf of
the Corporation under its seal is duly authorized by the Board of Directors or
otherwise in accordance with the provisions of these By-Laws (provided, however,
the Board of Directors or the President may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
signature); (e) keep a register of the post office address of each stockholder,
director or committee member, which shall be furnished to the Secretary by such
stockholder, director or member; (f) have general charge of the stock transfer
books of the Corporation; and (g) in general perform all duties incident to the
office of Secretary and such other duties as from time to time may be assigned
to him by the President or the Board of Directors.
Section 3.9. ASSISTANT TREASURERS AND SECRETARIES. In the absence
of the Secretary or in the event of his inability or refusal to act, the
Assistant Treasurers and Assistant Secretaries in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election) shall perform the duties and exercise the powers of the
Secretary. In addition, the Assistant Treasurers and Assistant Secretaries
shall, in general, perform such duties as may be
<PAGE>
assigned to them by the President or the Board of Directors. The Assistant
Treasurers shall, respectively, if required by the Board of Directors, give
bonds (which shall be renewed regularly) for the faithful discharge of their
duties in such sums and with such sureties as the Board of Directors shall
determine.
Section 3.10. SALARIES. The salaries of the officers shall be fixed
from time to time by the Board of Directors or such officer as it shall
designate for such purpose or as it shall otherwise direct. No officer shall be
prevented from receiving such salary by reason of the fact that he is also a
director of the Corporation.
ARTICLE IV
CONTRACTS, LOANS, CHECKS, AND DEPOSITS
Section 4.1. CONTRACTS. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances.
Section 4.2. LOANS. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in the name of the
Corporation unless authorized by a resolution of the Board of Directors. Such
authority may be general or confined to specific instances.
Section 4.3. CHECKS, DRAFTS, ETC. All checks, drafts or other order
for payment of money issued in the name of the Corporation shall be signed by
such officers, employees or agents of the Corporation as shall from time to time
be designated by the Board of Directors, the President, the chief financial
officer of the Corporation or the Treasurer.
Section 4.4. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited form time to time to the credit of the Corporation
in such banks, trust companies or other depositories as shall be designated from
time to time by the Board of Directors, the President, the chief financial
officer of the Corporation or the Treasurer; and such officers may designate any
type of depository arrangement (including but not limited to depository
arrangements resulting in net debits against the Corporation) as from time to
time offered or available.
ARTICLE V
CERTIFICATES OF STOCK AND THEIR TRANSFER
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Section 5.1. CERTIFICATES OF STOCK. Shares of stock of the
Corporation shall be represented by certificates which shall be in such form as
may be determined by the Board of Directors, shall be numbered and shall be
entered in the books of the Corporation as they are issued. They shall exhibit
the holder's name and number of shares and shall be signed by the President or a
Vice President and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary. If any stock certificate is signed (a) by a transfer
agent or an assistant transfer agent or (b) by a transfer clerk acting on behalf
of the Corporation and a registrar, the signature of any officer of the
Corporation may be facsimile. In case any such officer whose facsimile
signature has thus been used on any such certificate shall cease to be such
officer, whether because of death, resignation or otherwise, before such
certificate has been delivered by the Corporation, such certificate may
nevertheless be delivered by the Corporation, as though the person whose
facsimile signature has been used thereon had not ceased to be such officer.
All certificates properly surrendered to the Corporation for transfer shall be
cancelled and no new certificate shall be issued to evidence transferred shares
until the former certificate for at least a like number of shares shall have
been surrendered and cancelled and the Corporation reimbursed for any applicable
taxes on the transfer, except that in the case of a lost, destroyed or mutilated
certificate a new one may be issued therefor upon such terms, and with such
indemnity (if any) to the Corporation, as the Board of Directors may prescribe
specifically or in general terms or by delegation to a transfer agent for the
Corporation.
Section 5.2. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of
Directors in individual cases, or by general resolution or by delegation to the
transfer agent, may direct a new certificate or certificates to be issued in
place of any certificate or certificates 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 or certificates,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificates, or his legal representative, to advertise the same in such manner
as it 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 5.3. TRANSFERS OF STOCK. Upon surrender to the Corporation
or the transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, and upon payment of applicable taxes with respect to such
transfer, and in compliance with any restrictions on transfer applicable to
<PAGE>
the certificate or shares represented thereby of which the Corporation shall
have notice and subject to such rules and regulations as the Board of
Directors may from time to time deem advisable concerning the transfer and
registration of certificates for shares of capital stock of the Corporation,
the Corporation shall issue a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its books.
Transfers of shares shall be made only on the books of the Corporation by the
registered holder thereof or by his attorney or successor duly authorized as
evidenced by documents filed with the Secretary or transfer agent of the
Corporation. Whenever any transfer of shares shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of
transfer if, when the certificates are presented to the Corporation for
transfer, both the transferor and transferee request the Corporation to do so.
Section 5.4. RESTRICTIONS ON TRANSFER. Any stockholder may enter
into an agreement with other stockholders or with the Corporation providing for
reasonable limitation or restriction on the right of such stockholder to
transfer shares of capital stock of the Corporation held by him, including,
without limiting the generality of the foregoing, agreements granting to such
other stockholders or to the Corporation the right to purchase for a given
period of time any of such shares on terms equal to terms offered such
stockholders by any third party. Any such limitation or restriction on the
transfer of shares of the Corporation shall be set forth conspicuously on
certificates representing such shares or notice thereof may be otherwise given
to the Corporation or the transfer agent, in which case the Corporation or the
transfer agent shall not be required to transfer such shares upon the books of
the Corporation without receipt of satisfactory evidence of compliance with the
terms of such limitation or restriction.
Section 5.5. STOCKHOLDERS OF RECORD. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1. FISCAL YEAR. The fiscal year of the Corporation shall
begin on the first day of January in each year and end on the thirty-first day
of December in each year.
<PAGE>
Section 6.2. SEAL. The corporate seal shall have inscribed thereon
the name of the Corporation and the words "CORPORATE SEAL" and "DELAWARE"; and
it shall otherwise be in the form approved by the Board of Directors. Such seal
may be used by causing it, or a facsimile thereof, to be impressed or affixed or
otherwise reproduced.
ARTICLE VII
OFFICES
Section 7.1. REGISTERED OFFICE. The registered office of the
Corporation in the State of Delaware shall be located at Corporation Trust
Center, 1209 Orange Street in the City of Wilmington, County of New Castle, and
the name of its registered agent is the Corporation Trust Company.
Section 7.2. OTHER OFFICES. The Corporation may have offices at
such other places both within or without the State of Delaware as shall be
determined from time to time by the Board of Directors or as the business of the
Corporation may require.
ARTICLE VIII
INDEMNIFICATION
<PAGE>
Section 8.1. GENERAL. Each person who was or is made a party or is
threatened to be made a party to or is or was involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter 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,
officer or employee of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent or another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis
of such proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the Delaware General
Corporation Law as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent than such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and
such indemnification shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of his or
her heirs, executors and administrators; provided, however, that except as
provided in Section 8.2 of these By-Laws with respect to proceedings seeking
to enforce rights to indemnification, the Corporation shall indemnify any
such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Article VIII shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred
in defending any such proceeding in advance of its final disposition;
provided, however, that if the Delaware General Corporation Law requires, the
payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) 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 advanced if it shall ultimately
be determined that such director or officer is not entitled to be indemnified
under this Article VIII or otherwise.
Section 8.2. EXPENSES. If a claim under Section 8.1 of these
By-Laws is not paid in full by the Corporation within thirty days after a
written claim has been received by the
<PAGE>
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in defending
any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that
the claimant has not met the standards of conduct which made it permissible
under the Delaware General Corporation Law for the Corporation to indemnify
the claimant for the amount claimed, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel or stockholders)
to have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or
she has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel or stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met
the applicable standard of conduct.
Section 8.3. NON-EXCLUSIVE. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article VIII shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, By-Laws, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 8.4. INSURANCE. The Corporation may purchase and maintain
insurance or furnish similar protection, including, but not limited to,
providing a trust fund, letter of credit, or self-insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of Delaware.
Section 8.5. AGENT. The Corporation may, to the extent authorized
from time to time by the Board of Directors, grant rights to indemnification,
and rights to be paid by the Corporation and expense incurred in defending any
proceeding in advance of its final disposition, to any agent of the Corporation
to the fullest extent of the provisions of this Article VIII with respect to the
indemnification and advancement of expenses of director, officers and employees
of the Corporation.
<PAGE>
ARTICLE IX
NOTICES
Section 9.1. MANNER OF NOTICE. Whenever under the provisions of the
law of the State of Delaware, the Certificate of Incorporation or these By-Laws
notice is required to be given to any stockholder, director or member of any
committee designated by the Board of Directors, it shall not be construed to
require personal delivery and such notice may be given in writing by depositing
it, in a sealed envelope, in the United States mails, air mail or first class,
postage prepaid, addressed (or by delivering it to a telegraph company, charges
prepaid, for transmission) to such stockholder, director or member as it appears
on the books of the Corporation or, in the case of such a director or member, at
his business address; and such notice shall be deemed to be given at the time
when it is thus deposited in the United States mails (or delivered to the
telegraph company). Such requirement for notice shall be deemed satisfied,
except in the case of stockholder meetings with respect to which written notice
is mandatorily required by law, if actual notice is received orally or in
writing by the person entitled thereto as far in advance of the event with
respect to which notice is given as the minimum notice periods required by law
or these By-Laws.
Whenever notice is required to be given under any provision of the
Certificate of Incorporation or these By-Laws to any stockholders to whom (i)
notice of two consecutive annual meetings, and all notices of meetings or of the
taking of action by written consent without a meeting to such person during the
period between such two consecutive annual meetings, or (ii) all, and at least
two, payments (if sent by first class mail) of dividends or interest on
securities during a twelve month period, have been mailed addressed to such
person at his address as shown on the records of the Corporation and have been
returned undeliverable, the giving of such notice to such person shall not
be required. Any action or meeting which shall be taken or held without notice
to such person shall have the same force and effect as if such notice had been
duly given.
Section 9.2. WAIVER OF NOTICE. Whenever any notice is required to
be given under the provisions of the laws of the State of Delaware, the
Certificate of Incorporation or these By-Laws, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether before, at or
after the time stated therein, shall be deemed equivalent thereto. Attendance
by a person at a meeting shall constitute a waiver of 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
<PAGE>
of the stockholders, directors or committee of directors need be specified in
any written waiver of notice unless so required by the laws of the State of
Delaware, the Certificate of Incorporation or these By-Laws.
ARTICLE X
DIVIDENDS
The Board of Directors may from time to time declare, and the
Corporation may pay, dividends, in cash, in property, or in shares of the
Corporation's capital stock, on its outstanding shares in the manner and upon
the terms and conditions provided by law and by the Certificate of
Incorporation.
<PAGE>
ARTICLE XI
AMENDMENTS
Except to the extent otherwise provided in the Certificate of
Incorporation or these By-Laws, these By-Laws shall be subject to alteration,
amendment or repeal, and new By-Laws may be adopted (i) by the affirmative vote
of the holders of not less than a majority of the voting power of all
outstanding shares of the Corporation entitled to vote generally in the election
of directors, (ii) by the affirmative vote of not less than a majority of the
members of the Board of Directors at any meeting of the Board of Directors at
which there is a quorum present and voting or (iii) by the unanimous written
consent of the Board of Directors acting in accordance with applicable law.
