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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
NETWORK COMPUTING DEVICES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 77-0177255
(State of incorporation) (I.R.S. Employer Identification No.)
350 NORTH BERNARDO AVENUE
MOUNTAIN VIEW, CALIFORNIA 94043
(Address of principal executive offices) (Zip Code)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Not applicable None
If this Form relates to the registration of a class of debt securities and
is effective upon filing pursuant to General Instruction A.(c)(1), please check
the following box. [ ]
If this Form relates to the registration of a class of debt securities and
is to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $0.001 par value
(Title of class)
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AMENDMENT NO. 2 TO FORM 8-A
The undersigned registrant hereby amends the following items, exhibits or
other portions of its Application for Registration on Form 8-A filed April 27,
1992, as amended January 14, 1999, for its Common Stock as follows:
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
COMMON STOCK
The holders of Common Stock are entitled to one vote for each share held of
record on all matters to be voted on by stockholders and such common stock does
not have cumulative voting rights with respect to any matter. Subject to the
preferences held by holders of Preferred Stock, the holders of Common Stock are
entitled to receive ratably such dividends, if any, as may be declared from time
to time by the Board of Directors in its discretion from funds legally available
therefor. In the event of liquidation, dissolution or winding up of the
Company, the remainder of the assets of the Company, after payment of
liabilities and the liquidation preferences of any outstanding shares of
Preferred Stock, will be distributed ratably among the holders of Commons Stock.
There are no preemptive or other subscription rights and there are no conversion
rights or redemption or sinking fund provisions applicable to the Common Stock.
All of the outstanding share of Common Stock are fully paid and nonassessable.
ITEM 2. EXHIBITS
The following exhibits are filed herewith:
3.1 Restated Certificate of Incorporation of Registrant.
3.2 Amended and Restated Bylaws of Registrant.
4.1 Rights Agreement dated August 12, 1997 between the Registrant and
ChaseMellon Shareholder Services, L.L.C.(1)
4.2 Rights Amendment dated December 31, 1998 between the Registrant
and ChaseMellon Shareholder Services, L.L.C. (2)
(1) Incorporated herein by reference to Exhibit 4.1 to the Company's
Registration Statement on Form 8-A/A filed April 1, 1999.
(2) Incorporated herein by reference to Exhibit 4.2 to the Company's
Registration Statement on Form 8-A/A filed April 1, 1999.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
NETWORK COMPUTING DEVICES, INC.
Date: March 31, 1999
By: /s/ Rudolph G. Morin
--------------------
Rudolph G. Morin
Executive Vice President, Operations and
Finance, and Chief Financial Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
- ------- -----------
<S> <C>
3.1 Restated Certificate of Incorporation of Registrant.
3.2 Amended and Restated Bylaws of Registrant.
4.1 Rights Agreement dated August 12, 1997 between the Registrant and
ChaseMellon Shareholder Services, L.L.C.(1)
4.2 Rights Amendment dated December 31, 1998 between the Registrant and
ChaseMellon Shareholder Services, L.L.C. (2)
(1) Incorporated herein by reference to Exhibit 4.1 to the Company's
Registration Statement on Form 8-A/A filed April 1, 1999.
(2) Incorporated herein by reference to Exhibit 4.2 to the Company's
Registration Statement on Form 8-A/A filed April 1, 1999.
</TABLE>
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EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF NETWORK COMPUTING DEVICES, INC. DELAWARE
Network Computing Devices, Inc. Delaware, a Delaware corporation organized
and existing under the laws of the State of Delaware, hereby certifies as
follows:
1. The name of the corporation is Network Computing Devices, Inc. Delaware.
Network Computing Devices, Inc. Delaware was originally incorporated under the
same name, and the original Certificate of Incorporation of the corporation was
filed with the Secretary of State of the State of Delaware on April 22, 1998.
2. Pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware, this Restated Certificate of Incorporation restates and
integrates and further amends the provisions of the Certificate of Incorporation
of this corporation.
3. The text of the Restated Certificate of Incorporation as heretofore amended
or supplemented is hereby restated and further amended to read in its entirety
as follows:
FIRST: The name of the corporation (hereinafter sometimes referred to as the
"Corporation") is Network Computing Devices, Inc.
SECOND: The address of the registered office of the Corporation in the State
of Delaware is Incorporating Services, Ltd., 15 East North Street, in
the City of Dover, County of Kent. The name of the registered agent
at that address is Incorporating Services, Ltd.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of Delaware.
FOURTH:
A. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Thirty-Three Million
Shares (33,000,000) consisting of:
1. Thirty Million (30,000,000) shares of Common Stock, par value one
tenth of one cent ($0.001) per share (the "Common Stock"); and
2. Three Million (3,000,000) shares of Preferred Stock, par value
one tenth of one cent ($0.001) per share (the "Preferred Stock").
B. The Board of Directors is authorized, subject to any limitations
prescribed by law, to provide for the issuance of shares of Preferred
Stock in series and, by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to
time the number of shares to be included in each such series, and to
fix the
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designation, powers, preferences and rights of the shares of each such
series and any qualifications, limitations or restrictions thereon.
The number of authorized shares of Preferred Stock may be increased or
decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of
the Common Stock without a vote of the holders of the Preferred Stock,
or of any series thereof, unless a vote of any such holders is
required pursuant to the certificate or certificates establishing the
series of Preferred Stock. Subject to the limitations prescribed
herein and any further limitations in accordance herewith, the rights,
preferences, privileges, restrictions and other matters relating to
the Preferred Stock are as follows:
Section 1. DESIGNATION AND AMOUNT. Five hundred thousand
(500,000) shares of such class shall be designated as "Series A
Participating Preferred Stock," $0.001 par value per share. Such
number of shares may be increased or decreased by resolution of the
Board of Directors; provided, that no decrease shall reduce the number
of shares of Series A Participating Preferred Stock to a number less
than that of the shares then outstanding plus the number of shares
issuable upon exercise of outstanding rights, options or warrants or
upon conversion of outstanding securities issued by the Corporation.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the prior and superior rights of the
holders of any shares of any series of Preferred Stock ranking prior
and superior to the shares of Series A Participating Preferred Stock
with respect to dividends, the holders of shares of Common Stock of
the Corporation and any other junior stock, shall be entitled to
receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable
in cash on the first day of March, June, September and December in
each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a
share of Series A Participating Preferred Stock in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $25.00, or
(b) subject to the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the
Common Stock, since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of
Series A Participating Preferred Stock. In the event the Corporation
shall at any time after the close of business on September 2, 1997
(the "Rights Declaration Date") (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, by reclassification or
otherwise, then in each such case the amount to which holders of
shares of Series A Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding
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sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Participating Preferred Stock as provided
in paragraph (A) above immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in
shares of Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $25.00 per
share on the Series A Participating Preferred Stock shall nevertheless
be payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Participating Preferred Stock from
the Quarterly Dividend Payment Date next preceding the date of issue
of such shares of Series A Participating Preferred Stock unless the
date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares
of Series A Participating Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date in
either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the
shares of Series A Participating Preferred Stock in an amount less
than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of
shares of Series A Participating Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record
date shall be no more than thirty (30) days prior to the date fixed
for the payment thereof.
Section 3. VOTING RIGHTS. The holders of shares of Series A
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Participating Preferred
Stock shall entitle the holder thereof to 100 votes on all matters
submitted to a vote of the shareholders of the Corporation. In the
event the Corporation shall at any time after the Rights Declaration
Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock into a
greater number of shares, or (iii) combine the outstanding Common
Stock into a smaller number of shares, by reclassification or
otherwise, then in each such case the number of votes per share to
which holders of shares of Series A Participating Preferred Stock were
entitled
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immediately prior to such event shall be adjusted by multiplying such
number by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock
outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the
holders of shares of Series A Participating Preferred Stock and the
holders of shares of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one
class on all matters submitted to a vote of shareholders of the
Corporation.
(C) Except as set forth herein, holders of Series A
Participating Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Participating Preferred Stock as
provided in Section 2 are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared, on
shares of Series A Participating Preferred Stock outstanding shall
have been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any
other distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Participating Preferred Stock;
(ii) declare or pay dividends on or make any
other distributions on any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up) with
the Series A Participating Preferred Stock except dividends paid
ratably on the Series A Participating Preferred Stock and all such
parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire
for consideration shares of any stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the
Series A Participating Preferred Stock provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Participating
Preferred Stock; or
(iv) purchase or otherwise acquire for
consideration any shares of Series A Participating Preferred Stock or
any shares of stock ranking on a parity with the Series A
Participating Preferred Stock except in accordance with a purchase
offer made in writing or by publication (as determined by the Board of
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Directors) to all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
Section 5. REACQUIRED SHARES. Any shares of Series A
Participating Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and canceled
promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors,
subject to the conditions and restrictions on issuance set forth
herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(A) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no distribution shall be
made to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Participating Preferred Stock unless, prior thereto, the
holders of shares of Series A Participating Preferred Stock shall have
received per share, the greater of $1,000.00 or 100 times the payment
made per share of Common Stock, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment (the "Series A Liquidation Preference").
Following the payment of the full amount of the Series A Liquidation
Preference, no additional distributions shall be made to the holders
of shares of Series A Participating Preferred Stock unless, prior
thereto, the holders of shares of Common Stock shall have received an
amount per share (the "Common Adjustment") equal to the quotient
obtained by dividing (i) the Series A Liquidation Preference by (ii)
100 (as appropriately adjusted as set forth in subparagraph (C) below
to reflect such events as stock splits, stock dividends and
recapitalization with respect to the Common Stock) (such number in
clause (ii), the "Adjustment Number"). Following the payment of the
full amount of the Series A Liquidation Preference and the Common
Adjustment in respect of all outstanding shares of Series A
Participating Preferred Stock and Common Stock, respectively, holders
of Series A Participating Preferred Stock and holders of shares of
Common Stock shall receive their ratable and proportionate share of
the remaining assets to be distributed in the ratio of the Adjustment
Number to 1 with respect to such Preferred Stock and Common Stock, on
a per share basis, respectively.
(B) In the event there are not sufficient assets
available to permit payment in full of the Series A Liquidation
Preference and the liquidation preferences of all other series of
Preferred Stock, if any, which rank on a parity with
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the Series A Participating Preferred Stock then such remaining assets
shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event
there are not sufficient assets available to permit payment in full of
the Common Adjustment, then such remaining assets shall be distributed
ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, by reclassification or
otherwise, then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC. In case the
Corporation shall enter into any consolidation, merger, combination or
other transaction in which the shares of Common Stock are exchanged
for or changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Series A Participating
Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 100 times the aggregate
amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each
such case the amount set forth in the preceding sentence with respect
to the exchange or change of shares of Series A Participating
Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that are outstanding
immediately prior to such event.
Section 8. REDEMPTION. The shares of Series A Participating
Preferred Stock shall not be redeemable.
Section 9. RANKING. The Series A Participating Preferred
Stock shall rank junior to all other series of the Corporation's
Preferred Stock as to the payment of dividends and the distribution of
assets, unless the terms of any such series shall provide otherwise.
Section 10. AMENDMENT. The Restated Certificate and the
Bylaws of the Corporation shall not be further amended (including,
without limitation, pursuant to a Certificate of Designation filed
pursuant to the authority granted by the Restated
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Certificate) in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Participating
Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the outstanding shares of Series A Participating
Preferred Stock voting separately as a class.
Section 11. FRACTIONAL SHARES. Series A Participating
Preferred Stock may be issued in fractions of a share which shall
entitle the holder, in proportion to such holder's fractional shares,
to exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of holders
of Series A Participating Preferred Stock.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the
powers and authority expressly conferred upon them by statute or by
this Certificate of Incorporation or the Bylaws of the Corporation,
the directors are hereby empowered to exercise all such powers and do
all such acts and things as may be exercised or done by the
Corporation.
B. The directors of the Corporation need not be elected by written ballot
unless the Bylaws so provide.
SIXTH:
A. The number of directors shall initially be seven (7) and thereafter
shall be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution is
presented to the Board for adoption). All directors shall hold office
until the expiration of the term for which elected, and until their
respective successors are elected, except in the case of the death,
resignation, or removal of any director.
B. Subject to the rights of the holders of any series of Preferred Stock
then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the
Board of Directors resulting from death, resignation or other cause
(including removal from office by a vote of the stockholders) may be
filled only by a majority vote of the directors then in office, though
less than a quorum, or by sole remaining director, and directors so
chosen shall hold office for a term expiring at the next annual
meeting of stockholders at which the term of office of the class to
which they have been elected expires, and until their respective
successors are elected, except in the case of the death, resignation,
or removal of any director.
SEVENTH: The Board of Directors is expressly empowered to adopt, amend or
repeal Bylaws of the Corporation. The stockholders shall also have
power to adopt, amend or repeal
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the Bylaws of the Corporation. Any adoption, amendment or repeal
of Bylaws of the Corporation by the stockholders shall require,
in addition to any vote of the holders of any class or series of
stock of the Corporation required by law or by this Certificate
of Incorporation, the affirmative vote of the holders of a majority
of the voting power of all of the then outstanding shares of the
capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
EIGHTH: A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involved intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal
benefit.
If the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability of a
director, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing provisions of this Article
EIGHTH by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
NINTH: The Corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware and all rights
conferred upon stockholders are granted subject to this reservation;
PROVIDED, HOWEVER, that, notwithstanding any other provision of this
Certificate of Incorporation or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any vote
of the holders of any class or series of the stock of this Corporation
required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of a majority of the voting power of
all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required to amend or
repeal this Certificate of Incorporation.
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IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been
signed by Rudolph G. Morin, its duly authorized officer this 31st day of August,
1998.
NETWORK COMPUTING DEVICES, INC. DELAWARE,
a Delaware corporation
By: /s/ Rudolph G. Morin
--------------------
Rudolph G. Morin, Executive Vice President, Operations
and Finance, and Chief Financial Officer
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EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS OF NETWORK COMPUTING DEVICES, INC.
Article 1. STOCKHOLDERS
1.1. PLACE OF MEETINGS. All meetings of stockholders shall be held
at such place within or without the State of Delaware as may be designated
from time to time by the Board of Directors or the President and Chief
Executive Officer or, if not so designated, at the registered office of the
corporation.
1.2. ANNUAL MEETING. The annual meeting of stockholders for the
election of directors and for the transaction of such other business as may
properly be brought before the meeting shall be held on a date to be fixed by
the Board of Directors or the President and Chief Executive Officer at the
time and place to be fixed by the Board of Directors or the President and
stated in the notice of the meeting. If no annual meeting is held in
accordance with the foregoing provisions, the Board of Directors shall cause
the meeting to be held as soon thereafter as convenient.
1.3. SPECIAL MEETINGS. Special meetings of stockholders may be
called at any time by the Board of Directors, the Chairman of the Board or
the President and Chief Executive Officer or the holders of 10% or more of
the outstanding voting power of the Corporation. Business transacted at any
special meeting of stockholders shall be confined to the purpose or purposes
stated in the notice of meeting.
1.4. NOTICE OF MEETINGS. Written notice of each meeting of
stockholders, whether annual or special, shall be given not less than ten
(10) nor more than sixty (60) days before the date on which the meeting is to
be held, to each stockholder entitled to vote at such meeting, except as
otherwise provided herein or as required by law (meaning here and hereafter,
as required from time to time by the Delaware General Corporation Law or the
Certificate of Incorporation). The notices of all meetings shall state the
place, date and hour of the meeting. The notice of a special meeting shall
state, in addition, the purpose or purposes for which the meeting is called.
If mailed, notice is given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears on the
records of the corporation.
1.5. VOTING LIST. The officer who has charge of the stock ledger of
the corporation shall prepare, at least ten (10) days before each meeting of
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, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, 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 of the meeting, and may be
inspected by any stockholder who is present. This list shall
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preemptively determine the identity of the stockholders entitled to vote at
the meeting and the number of shares held by each of them.
1.6. QUORUM. Except as otherwise provided by law or these Bylaws,
the holders of a majority of the shares of the capital stock of the
corporation entitled to vote at the meeting, present in person or represented
by proxy, shall constitute a quorum for the transaction of business. If a
quorum shall fail to attend any meeting, the chairman of the meeting or the
holders of a majority of the shares of stock entitled to vote who are
present, in person or by proxy, may adjourn the meeting to another place,
date or time.
If a notice of any adjourned special meeting of stockholders is sent to
all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then except as otherwise required by
law, those present at such adjourned meeting shall constitute a quorum, and
all matters shall be determined by a majority of the votes cast at such
meeting.
1.7. ADJOURNMENTS. Any meeting of stockholders may be adjourned to
any other time and to any other place at which a meeting of stockholders may
be held under these Bylaws by the holders of a majority of the shares of
stock present or represented at the meeting and entitled to vote, although
less than a quorum, or, if no stockholder is present, by any officer entitled
to preside at or to act as Secretary of such meeting. When a meeting is
adjourned to another place, date or time, written notice need not be given of
the adjourned meeting if the place, date and time thereof are announced at
the meeting at which the adjournment is taken; provided, however, that if the
date of any adjourned meeting is more than thirty (30) days after the date
for which the meeting was originally noticed, or if a new record date is
fixed for the adjourned meeting, written notice of the place, date, and time
of the adjourned meeting shall be given in conformity herewith. At the
adjourned meeting, the corporation may transact any business which might have
been transacted at the original meeting.
1.8. VOTING AND PROXIES. Each stockholder shall have one vote for
each share of stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless otherwise
provided by law. Each stockholder of record entitled to vote at a meeting of
stockholders, may vote in person or may authorize any other person or persons
to vote or act for him by written proxy executed by the stockholder or his
authorized agent or by a transmission permitted by law and delivered to the
Secretary of the corporation. No stockholder may authorize more than one
proxy for his shares. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission created pursuant to this
Section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile transmission
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
1.9. ACTION AT MEETING. When a quorum is present at any meeting,
any election shall be determined by a plurality of the votes cast by the
stockholders entitled to vote at the election, and all other matters shall be
determined by a majority of the votes cast affirmatively or negatively on the
matter (or if there are two or more classes of stock entitled to vote as
separate
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classes, then in the case of each such class, a majority of each such class
present or represented and voting affirmatively or negatively on the matter)
shall decide such matter, except when a different vote is required by express
provision of law, the Certificate of Incorporation or these Bylaws.
All voting, including on the election of directors, but excepting where
otherwise required by law, may be by a voice vote; provided, however, that
upon demand therefor by a stockholder entitled to vote or his or her proxy, a
stock vote shall be taken. Every stock vote shall be taken by ballots, each
of which shall state the name of the stockholder or proxy voting and such
other information as may be required under the procedure established for the
meeting. Every vote taken by ballots shall be counted by an inspector or
inspectors appointed by the chairman of the meeting. The corporation may,
and to the extent required by law, shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting and make a
written report thereof. The corporation may designate one or more persons as
an alternate inspector 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 may, and to the extent required by law,
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 or her ability.
1.10. NOTICE OF STOCKHOLDER BUSINESS. At an annual meeting of the
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) properly brought before the meeting by or at the direction of the Board
of Directors, or (iii) properly brought before an annual meeting by a
stockholder. For business to be properly brought before an annual meeting by
a stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a stockholder
proposal to be presented at an annual meeting shall be received at the
Corporation's principal executive offices not less than 120 calendar days in
advance of the date that the Corporation's (or the Corporation's
predecessor's) proxy statement was released to stockholders in connection
with the previous 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 advanced by more than 30 calendar days from the date
contemplated at the time of the previous year's proxy statement, notice by
the stockholders to be timely must be received not later than the close of
business on the tenth day following the day on which the date of the annual
meeting is publicly announced.
A stockholder's notice to the Secretary of the Corporation 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, (ii) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, (iii) the
class and number of shares of the Corporation which are beneficially owned by
the stockholder, and (iv) any material interest of the stockholder in such
business.
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1.11. CONDUCT OF BUSINESS. At every meeting of the stockholders,
the Chairman of the Board, if there is such an officer, or if not, the person
appointed by the Board of Directors, shall act as Chairman. The Secretary of
the corporation or a person designated by the Chairman of the meeting shall
act as Secretary of the meeting. Unless otherwise approved by the Chairman
of the meeting, attendance at the stockholders' meeting is restricted to
stockholders of record, persons authorized in accordance with Section 1.8 of
these Bylaws to act by proxy, and officers of the corporation.
The Chairman of the meeting shall call the meeting to order, establish
the agenda, and conduct the business of the meeting in accordance therewith
or, at the Chairman's discretion, it may be conducted otherwise in accordance
with the wishes of the stockholders in attendance. The date and time of the
opening and closing of the polls for each matter upon which the stockholders
will vote at the meeting shall be announced at the meeting.
The Chairman shall also conduct the meeting in an orderly manner, rule
on the precedence of, and procedure on, motions and other procedural matters,
and exercise discretion with respect to such procedural matters with fairness
and good faith toward all those entitled to take part. The Chairman may
impose reasonable limits on the amount of time taken up at the meeting on
discussion in general or on remarks by any one stockholder. Should any
person in attendance become unruly or obstruct the meeting proceedings, the
Chairman shall have the power to have such person removed from participation.
Notwithstanding anything in the Bylaws to the contrary, no business shall be
conducted at a meeting except in accordance with the procedures set forth in
this Section 1.11 and Section 1.10 above. The Chairman of a meeting shall,
if the facts warrant, determine and declare to the meeting that any proposed
item of business was not brought before the meeting in accordance with the
provisions of this Section 1.11 and Section 1.10, and if he should so
determine, he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
1.12. STOCKHOLDER ACTION BY WRITTEN CONSENT. Any action which may
be taken at any annual or special meeting of stockholders may be taken
without a meeting and without prior notice, if a consent in writing, setting
forth the actions so taken, is signed by the holders of outstanding shares
having not less than the minimum number of votes which would be necessary to
authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. All such consents shall be filed with
the secretary of the Corporation and shall be maintained in the corporate
records. Prompt notice of the taking of a corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders
who have not consented in writing.
Article 2. BOARD OF DIRECTORS
2.1. GENERAL POWERS. The business and affairs of the corporation
shall be managed by or under the direction of a Board of Directors, who may
exercise all of the powers of the corporation except as otherwise provided by
law or the Certificate of Incorporation. In the event of a vacancy in the
Board of Directors, the remaining directors, except as otherwise provided by
law, may exercise the powers of the full Board until the vacancy is filled.
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2.2. NUMBER AND TERM OF OFFICE. The number of directors shall
initially be seven (7) and, thereafter, shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board for adoption). All directors shall
hold office until the expiration of the term for which elected and until
their respective successors are elected, except in the case of the death,
resignation or removal of any director.
2.3. VACANCIES AND NEWLY CREATED DIRECTORSHIPS Subject to the
rights of the holders of any series of Preferred Stock then outstanding,
newly created directorships resulting from any increase in the authorized
number of directors or any vacancies in the Board of Directors resulting from
death, resignation, retirement, disqualification or other cause (including
removal from office by a vote of the stockholders) may be filled only by a
majority vote of the directors then in office, though less than a quorum, and
directors so chosen shall hold office for a term expiring at the next annual
meeting of stockholders at which the term of office of the class to which
they have been elected expires. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
2.4. RESIGNATION. Any director may resign by delivering his written
resignation to the corporation at its principal office or to the President or
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some
other event.
2.5. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without notice at such time and place, either within or without
the State of Delaware, as shall be determined from time to time by the Board
of Directors; provided that any director who is absent when such a
determination is made shall be given notice of the determination. A regular
meeting of the Board of Directors may be held without notice immediately
after and at the same place as the annual meeting of stockholders.
2.6. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be held at any time and place, within or without the State of Delaware,
designated in a call by the Chairman of the Board, the President and Chief
Executive Officer, two or more directors, or by one director in the event
that there is only a single director in office.
2.7. NOTICE OF SPECIAL MEETINGS. Notice of any special meeting of
directors shall be given to each director by the Secretary or by the officer
or one of the directors calling the meeting. Notice shall be duly given to
each director (i) by giving notice to such director in person or by telephone
or electronic voice message system at least 24 hours in advance of the
meeting, (ii) by sending a telegram, telecopy or telex, or delivering written
notice by hand, to his last known business or home address at least 24 hours
in advance of the meeting, or (iii) by mailing written notice to his last
known business or home address at least three (3) day in advance of the
meeting. A notice or waiver of notice of a meeting of the Board of Directors
need not specify the purposes of the meeting. Unless otherwise indicated in
the notice thereof, any and all business may be transacted at a special
meeting.
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2.8. PARTICIPATION IN MEETINGS BY TELEPHONE CONFERENCE CALLS.
Directors or any members of any committee designated by the directors may
participate in a meeting of the Board of Directors or such committee by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and
participation by such means shall constitute presence in person at such
meeting.
2.9. QUORUM. A majority of the total number of authorized directors
shall constitute a quorum at any meeting of the Board of Directors. In the
event one or more of the directors shall be disqualified to vote at any
meeting, then the required quorum shall be reduced by one for each such
director so disqualified; provided, however, that in no case shall less than
one-third (1/3) of the number so fixed constitute a quorum. In the absence
of a quorum at any such meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice other than
announcement at the meeting, until a quorum shall be present. Interested
directors may be counted in determining the presence of a quorum at a meeting
of the Board of Directors or at a meeting of a committee which authorizes a
particular contract or transaction.
2.10 ACTION AT MEETING. At any meeting of the Board of Directors at
which a quorum is present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is specified by law,
the Certificate of Incorporation or these Bylaws.
2.11. ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee of the
Board of Directors may be taken without a meeting, if all members of the
Board or committee, as the case may be, consent to the action in writing.
Any such written consents shall be filed with the minutes of proceedings of
the Board or committee.
2.12. REMOVAL. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any directors, or the entire Board of
Directors, may be removed from office at any time, but only for cause and
only by the affirmative vote of the holders of at least a majority of the
voting power of all of the outstanding shares of capital stock entitled to
vote generally in the election of directors, voting together as a single
class.
2.13. COMMITTEES. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the
corporation, with such lawfully delegated powers and duties as it therefor
confers, to serve at the pleasure of the Board. The Board may designate one
or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the member or members
of the committee present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place
of any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors and subject to the
provisions of the General Corporation Law of the State of Delaware, 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. Each such
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committee shall keep minutes and make such reports as the Board of Directors
may from time to time request. Except as the Board of Directors may
otherwise determine, any committee may make rules for the conduct of its
business, but unless otherwise provided by such rules, its business shall be
conducted as nearly as possible in the same manner as is provided in these
Bylaws for the Board of Directors.
2.14. COMPENSATION OF DIRECTORS. Directors may be paid such
compensation for their services and such reimbursement for expenses of
attendance at meetings as the Board of Directors may from time to the
determine. No such payment shall preclude any director from serving the
corporation or any of its parent or subsidiary corporations in any other
capacity and receiving compensation for such service.
2.15. NOMINATION OF DIRECTOR CANDIDATES. Subject to the rights of
holders of any class or series of Preferred Stock then outstanding,
nominations for the election of Directors may be made by the Board of
Directors or a proxy committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of Directors generally.
However, any stockholder entitled to vote in the election of Directors
generally may nominate one or more persons for election as Directors at a
meeting only if timely notice of such stockholder's intent to make such
nomination or nominations has been given in writing to the Secretary of the
Corporation. To be timely, a stockholder nomination for a director to be
elected at an annual meeting shall be received at the Corporation's principal
executive offices not less than 120 calendar days in advance of the date that
the Corporation's (or the Corporation's predecessor's) proxy statement was
released to stockholders in connection with the previous 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 date contemplated at the time of the previous
year's proxy statement, or in the event of a nomination for director to be
elected at a special meeting, notice by the stockholders to be timely must
be received not later than the close of business on the tenth day following
the day on which such notice of the date of the special meeting was mailed or
such public disclosure was made. Each such notice shall set forth: (a) the
name and address of the stockholder who intends to make the nomination and of
the person or persons to be nominated; (b) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to
vote for the election of directors on the date of such notice and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all 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; (d) 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 (e) the consent of
each nominee to serve as a director of the Corporation if so elected.
In the event that a person is validly designated as a nominee in
accordance with this Section 2.15 and shall thereafter become unable or
unwilling to stand for election to the Board of Directors, the Board of
Directors or the stockholder who proposed such nominee, as the case may
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be, may designate a substitute nominee upon delivery, not fewer than five
days prior to the date of the meeting for the election of such nominee, of a
written notice to the Secretary setting forth such information regarding such
substitute nominee as would have been required to be delivered to the
Secretary pursuant to this Section 2.15 had such substitute nominee been
initially proposed as a nominee. Such notice shall include a signed consent
to serve as a director of the Corporation, if elected, of each such
substitute nominee.
If the chairman of the meeting for the election of Directors determines
that a nomination of any candidate for election as a Director at such meeting
was not made in accordance with the applicable provisions of this Section
2.15, such nomination shall be void; provided, however, that nothing in this
Section 2.15 shall be deemed to limit any voting rights upon the occurrence
of dividend arrearages provided to holders of Preferred Stock pursuant to the
Preferred Stock designation for any series of Preferred Stock.
Article 3. OFFICERS
3.1. ENUMERATION. The officers of the corporation shall consist of
a Chief Executive Officer, a President, a Secretary, a Chief Financial
Officer and such other officers with such other titles as the Board of
Directors shall determine, including, at the discretion of the Board of
Directors, a Chairman of the Board, and one or more Vice Presidents and
Assistant Secretaries. The Board of Directors may appoint such other
officers as it may deem appropriate.
3.2. ELECTION. Officers shall be elected annually by the Board of
Directors at its first meeting following the annual meeting of stockholders.
Officers may be appointed by the Board of Directors at any other meeting.
3.3. QUALIFICATION. No officer need be a stockholder. Any two or
more offices may be held by the same person.
3.4. TENURE. Except as otherwise provided by law, by the
Certificate of Incorporation or by these Bylaws, each officer shall hold
office until his successor is elected and qualified, unless a different term
is specified in the vote appointing him, or until his earlier death,
resignation or removal.
3.5. RESIGNATION AND REMOVAL. Any officer may resign by delivering
his written resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon the
happening of some other event. Any officer may be removed at any time, with
or without cause, by the Board of Directors.
3.6. CHAIRMAN OF THE BOARD. The Board of Directors may appoint a
Chairman of the Board. If the Board of Directors appoints a Chairman of the
Board, he shall perform such duties and possess such powers as are assigned
to him by the Board of Directors. Unless otherwise provided by the Board of
Directors, he shall preside at all meetings of the stockholders, and, if he
is a director, at all meetings of the Board of Directors.
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3.7. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall,
subject to the direction of the Board of Directors, have responsibility for
the general management and control of the business and affairs of the
Corporation and shall perform all duties and have all powers which are
commonly incident to the office of chief executive or which are delegated to
him or her by the Board of Directors. The Chief Executive Officer shall
perform such other duties and shall have such other powers as the Board of
Directors may from time to time prescribe. He or she shall have power to
sign stock certificates, contracts and other instruments of the Corporation
which are authorized and shall have general supervision and direction of all
of the other officers, employees and agents of the Corporation, other than
the Chairman of the Board.
3.8. PRESIDENT. Should there exist an office of President which is
held by a person other than the Chief Executive Officer and which differs
from the office of Chief Executive Officer, the President shall have the
responsibilities delegated to him or her by the Board of Directors.
3.9. VICE PRESIDENTS. Any Vice President shall perform such duties
and possess such powers as the Board of Directors or the Chief Executive
Officer may from time to time prescribe. In the event of the absence,
inability or refusal to act of the President, the Vice President (or if there
shall be more than one, the Vice Presidents in the order determined by the
Board of Directors) shall perform the duties of the Chief Executive Officer
and when so performing shall have at the powers of and be subject to all the
restrictions upon the Chief Executive Officer. The Board of Directors may
assign to any Vice President the title of Executive Vice President, Senior
Vice President or any other title selected by the Board of Directors.
3.10. SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall
perform such duties and shall have such powers as the Board of Directors or
the Chief Executive Officer may from time to time prescribe. In addition,
the Secretary shall perform such duties and have such powers as are incident
to the office of the Secretary, including, without limitation, the duty and
power to give notices of all meetings of stockholders and special meetings of
the Board of Directors, to keep a record of the proceedings of all meetings
of stockholders and the Board of Directors, to maintain a stock ledger and
prepare lists of stockholders and their addresses as required, to be
custodian of corporate records and the corporate seal and to affix and attest
to the same on documents.
Any Assistant Secretary shall perform such duties and possess such
powers as the Board of Directors, the Chief Executive Officer or the
Secretary may from time to time prescribe. In the event of the absence,
inability or refusal to act of the Secretary, the Assistant Secretary (or if
there shall be more than one, the Assistant Secretaries in the order
determined by the Board of Directors) shall perform the duties and exercise
the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any
meeting of stockholders or directors, the person presiding at the meeting
shall designate a temporary secretary to keep a record of the meeting.
3.11. CHIEF FINANCIAL OFFICER. Unless otherwise designated by the
Board of Directors, the Chief Financial Officer shall be the Treasurer. The
Chief Financial Officer shall perform
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such duties and shall have such powers as may from time to time be assigned
to him by the Board of Directors or the Chief Executive Officer. In
addition, the Chief Financial Officer shall perform such duties and have such
powers as are incident to the office of chief financial officer, including
without limitation, the duty and power to keep and be responsible for all
funds and securities of the corporation, to maintain the financial records of
the Corporation, to deposit funds of the corporation in depositories as
authorized, to disburse such funds as authorized, to make proper accounts of
such funds, and to render as required by the Board of Directors accounts of
all such transactions and of the financial condition of the corporation.
3.12. SALARIES. Officers of the corporation shall be entitled to
such salaries, compensation or reimbursement as shall be fixed or allowed
from time to time by the Board of Directors.
3.13. DELEGATION OF AUTHORITY. The Board of Directors may from time
to time delegate the powers or duties of any officer to any other officers or
agents, notwithstanding any provision hereof.
Article 4. CAPITAL STOCK
4.1. ISSUANCE OF STOCK. Unless otherwise voted by the stockholders
and subject to the provisions of the Certificate of Incorporation, the whole
or any part of any unissued balance of the authorized capital stock of the
corporation or the whole or any part of any unissued balance of the
authorized capital stock of the corporation held in its treasury may be
issued, sold, transferred or otherwise disposed of by vote of the Board of
Directors in such manner, for such consideration and on such terms as the
Board of Directors may determine.
4.2. CERTIFICATES OF STOCK. Every holder of stock of the
corporation shall be entitled to have a certificate, in such form as may be
prescribed by law and by the Board of Directors, certifying the number and
class of shares owned by him in the corporation. Each such certificate shall
be signed by, or in the name of the corporation by, the Chairman or
Vice-Chairman, if any, of the Board of Directors, or the President or a Vice
President, and the Chief Financial Officer, or the Secretary or an Assistant
Secretary of the corporation. Any or all of the signatures on the
certificate may be a facsimile.
Each certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Certificate of Incorporation, the
Bylaws, applicable securities laws or any agreement among any number of
shareholders or among such holders and the corporation shall have
conspicuously noted on the face or back of the certificate either the full
text of the restriction or a statement of the existence of such restriction.
4.3. TRANSFERS. Except as otherwise established by rules and
regulations adopted by the Board of Directors, and subject to applicable law,
shares of stock may be transferred on the books of the corporation by the
surrender to the corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written
assignment or power of attorney properly executed, and with such proof of
authority or authenticity of signature as the corporation or its transfer
agent may reasonably require. Except as may be otherwise required by
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law, by the Certificate of Incorporation or by the Bylaws, the corporation
shall be entitled to treat the record holder of stock as shown on its books
as the owner of such stock for all purposes, including the payment of
dividends and the right to vote with respect to such stock, regardless of any
transfer, pledge or other disposition of such stock until the shares have
been transferred on the books of the corporation in accordance with the
requirements of these Bylaws.
4.4. LOST, STOLEN OR DESTROYED CERTIFICATES. The corporation may
issue a new certificate of stock in place of any previously saved certificate
alleged to have been lost, stolen, or destroyed, upon such terms and
conditions as the Board of Directors may prescribe, including the
presentation of reasonable evidence of such loss, theft or destruction and
the giving of such indemnity as the Board of Directors may require for the
protection of the corporation or any transfer agent or registrar.
4.5. RECORD DATE. The Board of Directors may fix in advance a date
as a record date for the determination of the stockholders entitled to notice
of or to vote at any meeting of stockholders or to express consent (or
dissent) to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights in respect of any change, concession or exchange of stock, or for the
purpose of any other lawful action. Such record date shall not be more than
sixty (60) nor less than ten (10) days before the date of such meeting, nor
more than sixty (60) days prior to any other action to which such record date
relates.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day before the day on which notice is given, or, if
notice is waived, at the close of business on the day before the day on which
the meeting is held. The record date for determining stockholders entitled
to express consent to corporate action in writing without a meeting when no
prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is expressed. The record date for
determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating to such purpose.
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.
Article 5. GENERAL PROVISIONS
5.1. FISCAL YEAR. The fiscal year of the corporation shall be as
fixed by the Board of Directors.
5.2. CORPORATE SEAL. The corporate seal shall be in such form as
shall be approved by the Board of Directors.
5.3. WAIVER OF NOTICE. Whenever any notice whatsoever is required
to be given by law, by the Certificate of Incorporation or by these Bylaws, a
waiver of such notice either in
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writing signed by the person entitled to such notice or such person's duly
authorized attorney, or by telecopy, telegraph, cable or any other available
method, whether before, at or after the time stated in such waiver, or the
appearance of such person or persons at such meeting in person or by proxy,
shall be deemed equivalent to such notice.
5.4. ACTIONS WITH RESPECT TO SECURITIES OF OTHER CORPORATIONS.
Except as the Board of Directors may otherwise designate, the President or
any officer of the corporation authorized by the President shall have the
power to vote and otherwise act on behalf of the corporation, in person or
proxy, and may waive notice of, and act as, or appoint any person or persons
to act as, proxy or attorney-in-fact to this corporation (with or without
power of substitution) at any meeting of stockholders or shareholders (or
with respect to any action of stockholders) of any other corporation or
organization, the securities of which may be held by this corporation and
otherwise to exercise any and all rights and powers which this corporation
may possess by reason of this corporation's ownership of securities in such
other corporation or other organization.
5.5. EVIDENCE OF AUTHORITY. A certificate by the Secretary, or an
Assistant Secretary, or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or representative of the
corporation shall as to all persons who rely on the certificate in good faith
be conclusive evidence of such action.
5.6. CERTIFICATE OF INCORPORATION. All references in these Bylaws
to the Certificate of Incorporation shall be deemed to refer to the
Certificate of Incorporation of the corporation, as amended and in effect
from time to time.
5.7. SEVERABILITY. Any determination that any provision of these
Bylaws is for any reason inapplicable, illegal or ineffective shall not
affect or invalidate any other provision of these Bylaws.
5.8. PRONOUNS. All pronouns used in these Bylaws shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons may require.
5.9. NOTICES. Except as otherwise specifically provided herein or
required by law, all notices required to be given to any stockholder,
director, officer, employee or agent shall be in writing and may in every
instance be effectively given by hand delivery to the recipient thereof, by
depositing such notice in the mails, postage paid, or by sending such notice
by prepaid telegram, mailgram, telecopy or commercial courier service. Any
such notice shall be addressed to such stockholder, director, officer,
employee or agent at his or her last known address as the same appears on the
books of the Corporation. The time when such notice shall be deemed to be
given shall be the time such notice is received by such stockholder,
director, officer, employee or agent, or by any person accepting such notice
on behalf of such person, if hand delivered, or the time such notice is
dispatched, if delivered through the mails or be telegram or mailgram.
5.10. RELIANCE UPON BOOKS, REPORTS AND RECORDS. Each director, each
member of any committee designated by the Board of Directors, and each
officer of the Corporation shall, in the performance of his duties, be fully
protected in relying in good faith upon the books of account
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or other records of the Corporation, including reports made to the
Corporation by any of its officers, by an independent certified public
accountant, or by an appraiser selected with reasonable care.
5.11. TIME PERIODS. In applying any provision of these Bylaws which
require that an act be done or not done a specified number of days prior to
an event or that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the doing of the
act shall be excluded, and the day of the event shall be included.
5.12. FACSIMILE SIGNATURES. In addition to the provisions for use
of facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any officer or officers of the Corporation may be
used whenever and as authorized by the Board of Directors or a committee
thereof.
Article 6. AMENDMENTS
6.1. BY THE BOARD OF DIRECTORS. Except as is otherwise set forth in
these Bylaws, these Bylaws may be altered, amended or repealed or new Bylaws
may be adopted by the affirmative vote of a majority of the directors present
at any regular or special meeting of the Board of Directors at which a quorum
is present.
6.2. BY THE STOCKHOLDERS. Except as otherwise set forth in these
Bylaws, these Bylaws may be altered, amended or repealed or new Bylaws may be
adopted by the affirmative vote of the holders of a majority of the shares of
the capital stock of the corporation issued and outstanding and entitled to
vote at any annual meeting of stockholders, or at any special meeting of
stockholders, PROVIDED notice of such alteration, amendment, repeal or
adoption of new Bylaws shall have been stated in the notice of such special
meeting.
Article 7. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
7.1. RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or she or a person of whom he
or she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director or officer of 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 or employee or in any
other capacity while serving as a director, officer or employee, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by Delaware Law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights
than said Law permitted the Corporation to provide prior to such amendment)
against all expenses, liability and loss 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 or employee and shall
inure to the benefit of his or her heirs, executors and administrators;
PROVIDED, HOWEVER, that, except as provided in
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Section 7.2 of this Article 7, the Corporation shall indemnify any such
person seeking indemnity in connection with an action, suit or proceeding (or
part thereof) initiated by such person only if (a) such indemnification is
expressly required to be made by law, (b) the action, suit or proceeding (or
part thereof) was authorized by the Board of Directors of the Corporation,
(c) such indemnification is provided by the Corporation, in its sole
discretion, pursuant to the powers vested in the Corporation under the
Delaware General Corporation Law, or (d) the action, suit or proceeding (or
part thereof) is brought to establish or enforce a right to indemnification
under an indemnity agreement or any other statute or law or otherwise as
required under Section 145 of the Delaware General Corporation Law. Such
right shall be a contract right and shall include the right to be paid by the
Corporation expenses incurred in defending any such proceeding in advance of
its final disposition; PROVIDED, HOWEVER, that, unless the Delaware General
Corporation Law then so prohibits, the payment of such expenses incurred by a
director or officer of the Corporation in his or her capacity as a director
or officer (and not in any other capacity in which service was or is tendered
by such person while a director or officer, including, without limitation.
service to an employee benefit plan) in advance of the final disposition of
such 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 should be determined ultimately that such director
or officer is not entitled to be indemnified under this Section or otherwise.
7.2. RIGHT OF CLAIMANT TO BRING SUIT. If a claim under Section 7.1
is not paid in full by the Corporation within ninety (90) days after a
written claim has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if such suit is not frivolous or brought in bad
faith, 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 then
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, has been tendered to this Corporation) that the claimant
has not met the standards of conduct which make it permissible under the
Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
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
its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that
claimant has not met the applicable standard of conduct.
7.3. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation may,
to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification, and to the advancement of related expenses, to any
employee or agent of the Corporation to the fullest extent of the provisions
of this Article with respect to the indemnification of and advancement of
expenses to directors and officers of the Corporation.
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7.4. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person
in Sections 7.1 and 7.2 shall not be exclusive of any other right which such
persons may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
7.5. INDEMNIFICATION CONTRACTS. The Board of Directors is
authorized to enter into a contract with any director, officer, employee or
agent of the Corporation, or any person serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including employee
benefit plans, providing for indemnification rights equivalent to or, if the
Board of Directors so determines, greater than, those provided for in this
Article 7.
7.6. INSURANCE. The Corporation shall maintain insurance to the
extent reasonably available, at its expense, to protect itself and any such
director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against
any such 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 Delaware General Corporation Law.
7.7. EFFECT OF AMENDMENT. Any amendment, repeal or modification of
any provision of this Article 7 by the stockholders and the directors of the
Corporation shall not adversely affect any right or protection of a director
or officer of the Corporation existing at the time of such amendment, repeal
or modification.
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