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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-K/A-1
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended June 30, 1996 Commission File No. 0-3953
SENSORMATIC ELECTRONICS CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 34-1024665
(State of Incorporation) (I.R.S. Employer Identification
Number)
951 Yamato Road
Boca Raton, Florida 33431-0700
(Address of principal executive (Zip Code)
offices)
</TABLE>
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
561-989-7000
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
None
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
Common Stock, Par Value $.01 Per Share
NAME OF EACH EXCHANGE ON WHICH REGISTERED:
NEW YORK STOCK EXCHANGE
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Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. Yes __ No X
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No __
The aggregate market value of Common Stock held by non-affiliates of the
Registrant as of September 16, 1996 was $1,300,977,178.
As of September 16, 1996, there were 73,960,635 shares of the common stock
outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Definitive proxy statement for the Company's 1996 Annual Meeting of Stockholders
(incorporated in Part III to the extent provided in Items 10, 11, 12 and 13
hereof).
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The undersigned registrant hereby amends the following items,
financial statements, exhibits or other portions of its 1996 Annual Report on
Form 10-K as set forth herein:
Item 14. Exhibits, Financial Statement Schedules and Reports on Form
8-K.
(3) The list of exhibits set forth in, and incorporated by reference
from, the Exhibit Index, is amended by substituting in its entirety the
following exhibit, which is filed herewith:
3. (ii) By-Laws of the Company.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Company has duly caused this Report to be signed on its behalf
by the undersigned, thereunto duly authorized, on November 20, 1996.
SENSORMATIC ELECTRONICS CORPORATION
By: /s/ WALTER A. ENGDAHL
--------------------------------
Walter A. Engdahl
Vice President-Corporate Counsel
and Secretary
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As amended through September 6, 1996
SENSORMATIC ELECTRONICS CORPORATION
BY-LAWS
ARTICLE I
Offices
Section 1. Registered Office. The registered office of the
Corporation shall be in the City of Dover, County of Kent, State of Delaware,
and the registered agent of the Corporation shall be The Prentice-Hall
Corporation System, Inc., whose address is 229 South State Street, Dover,
Delaware.
Section 2. Other Offices. The Corporation may also have
offices at such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meeting. The annual meeting of the
stockholders of the Corporation for the election of directors and for the
transaction of such other business as may properly come before the meeting
shall be held on the first Friday of November in each year, if not a legal
holiday, and if a legal holiday, then on the next succeeding day not a legal
holiday, or on such other date as may be fixed from time to time by resolution
of the Board of Directors, and at the principal office of the Corporation or at
such other place within or without the State of Delaware as shall be designated
by the Board of Directors. The Board of Directors may change the date and/or
place of any scheduled annual meeting, either before or after notice of such
meeting has been given.
Section 2. Special Meeting. Special meetings of the
stockholders may be called at any time only by the Chairman of the Board or the
President of the Corporation or the majority of the Board of Directors and may
be so called and held for any purpose or purposes as may be determined only by
the Chairman of the Board or the President of the Corporation or the majority
of the Board of Directors. Such meetings shall be held at such time and at
such place within or without the State of Delaware as shall be specified in the
notice of the meeting. The date, time and/or place of any scheduled special
meeting of the stockholders may subsequently be changed, either before or after
notice of such meeting has been given, by the Chairman of the Board or the
President of the Corporation or the majority of the Board of Directors.
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Section 3. Notice of Meetings. Notice of the place, date and
time of the holding of each annual and special meeting of the stockholders (and
of any change in such place, date and/or time) and the purpose or purposes
thereof shall be given personally or by mail in a postage prepaid envelope to
each stockholder entitled to vote at such meeting, not less than ten nor more
than sixty days before the date of such meeting, and, if mailed, it shall be
directed to such stockholder at his address as it appears on the records of the
Corporation, unless he shall have filed with the Secretary of the Corporation a
written request that notices to him be mailed to some other address, in which
case it shall be directed to him at such other address. Any such notice for
any meeting other than the annual meeting of stockholders shall indicate that
it is being issued at the direction of the Chairman of the Board, President, or
a majority of the Board of Directors. Notice of any meeting shall not be
required to be given to any stockholder who shall attend such meeting in person
or by proxy and shall not, at the beginning of such meeting, object to the
transaction of any business because the meeting is not lawfully called or
convened, or who shall, either before or after the meeting, submit a signed
waiver of notice, in person or by proxy. Unless the Board shall fix a new
record date for an adjourned meeting, notice of such adjourned meeting need not
be given if the time and place to which the meeting shall be adjourned were
announced at the meeting at which the adjournment is taken. 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 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.
Section 4. Quorum. At all meetings of the stockholders, the
holders of one-third of the shares of stock of the Corporation issued and
outstanding and entitled to vote and present in person or by proxy shall
constitute a quorum for the transaction of any business, except as otherwise
required by law or the Certificate of Incorporation in respect of the vote that
shall be required for a specified action. In the absence of a quorum, the
holders of a majority of the shares of stock present in person or by proxy and
entitled to vote, or if no stockholder entitled to vote is present, then any
officer of the Corporation, may adjourn the meeting from time to time. At any
such adjourned meeting at which a quorum may be present, any business may be
transacted which might have been transacted at the meeting as originally
called.
Section 5. Organization. At each meeting of the
stockholders, the Chief Executive Officer or, in his absence or inability to
act, such officer or other person designated by the Board of Directors, or, in
the absence or inability to act of such designee, such other person chosen by a
majority of those
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stockholders present or represented, shall act as chairman of the meeting. The
Secretary, or, in his absence or inability to act, an Assistant Secretary or
any other officer appointed by the chairman of the meeting, shall act as
secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at all
meetings of the stockholders shall be as determined by the chairman of the
meeting.
Section 7. Voting. Except as otherwise provided by statute or
the Certificate of Incorporation, each holder of record of shares of stock of
the Corporation having voting power shall be entitled at each meeting of the
stockholders to one vote for every share of such stock standing in his name on
the record of stockholders of the Corporation (a) on the date fixed by the
Board of Directors as the record date for the determination of the stockholders
who shall be entitled to notice of and to vote at such meeting; or (b) if such
record date shall not have been so fixed, then at the close of business on the
day next preceding the day on which notice thereof shall be given; or (c) if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. Each stockholder entitled to vote at any meeting of
stockholders may authorize another person or persons to act for him by a proxy
signed by such stockholder or his attorney-in-fact. Any such proxy shall be
delivered to the secretary of such meeting at or prior to the time designated
in the order of business for so delivering such proxies. No proxy shall be
valid after the expiration of three years from the date thereof, unless the
proxy provides for a longer period. Every proxy shall be revocable at the
pleasure of the stockholder executing it, except in those cases where an
irrevocable proxy is permitted by law. Except as otherwise required by law,
the Certificate of Incorporation or these By-Laws, any corporate action to be
taken by vote of the stockholders shall be authorized by a majority of the
total votes cast at a meeting of stockholders by the holders of shares present
in person or represented by proxy and entitled to vote on such action. Unless
required by statute, or determined by the chairman of the meeting to be
advisable, the vote on any question need not be by written ballot. On a vote
by written ballot, each ballot shall be signed by the stockholder voting, or by
his proxy, if there be such proxy, and shall state the number of shares voted.
Section 8. List of Stockholders. The officer who has charge
of the stock ledger of the Corporation shall prepare and make or cause to be
prepared and made, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, 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
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ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 9. Inspectors. The Board of Directors may, in
advance of any meeting of stockholders, appoint one or more inspectors to act
at such meeting or any adjournment thereof. If inspectors shall not be so
appointed or if any of them shall fail to appear or act, the chairman of the
meeting may, and on the request of any stockholder entitled to vote thereat
shall, appoint one or more inspectors. Each inspector, before entering upon
the discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector at such meeting with strict impartiality and according
to the best of his ability. The inspectors shall determine the number of
shares outstanding, the number of shares represented at the meeting, the
existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots or consents, determine the result, and do such acts as are proper to
conduct the election or vote with fairness to all stockholders. On request of
the chairman of the meeting or any stockholder entitled to vote thereat, the
inspectors shall make a report in writing of any challenge, request or matter
determined by them and shall execute a certificate of any fact found by them.
No director or candidate for the office of director shall act as inspector of
an election of directors. Inspectors need not be stockholders.
Section 10. No Action by Consent. No 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 and the power of stockholders to
consent in writing to the taking of any action is specifically denied.
Section 11. Notice of Stockholder Business. At an annual
meeting of 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 (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors or by the Chairman of the Board or the President of the
Corporation or (c) otherwise properly brought before the 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
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writing to the Secretary of the Corporation. To be timely, a stockholder's
notice must be received at the principal office of the Corporation not less
than sixty (60) days nor more than ninety (90) days prior to the meeting;
provided, however, that in the event that less than seventy (70) days' notice
or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the fifteenth day following the day on
which such notice of the date of the meeting was mailed or such public
disclosure was made. As used in this Section 11 and in paragraph B of Section
2 of Article III of these By- Laws, the phrase "notice or prior public
disclosure of the date of the meeting" shall mean notice or prior public
disclosure of the date on which the meeting is originally scheduled to be
called to order and shall not refer to notice or prior public disclosure of any
date to which such meeting may be adjourned. A stockholder's notice to the
Secretary shall set forth, as to each matter the stockholder proposes to bring
before the annual meeting, (a) a brief description of the business desired to
be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (b) the name and address, as they appear on the
Corporation's stock transfer books, of the stockholder proposing such business,
(c) the class and number of shares of capital stock of the Corporation which
are beneficially owned (such term being used in this Section 11 and in
paragraph B of Section 2 of Article III of these By-Laws with the meaning
ascribed to such term in Rule 13d-3 of the rules under the Securities Exchange
Act of 1934, as amended, as such Rule was in effect on July 1, 1990) by the
stockholder and (d) any material interest of the stockholder in such business.
Notwithstanding any other provision of these By-Laws, no business shall be
conducted at an annual meeting except in accordance with the procedures set
forth in this Section 11. If the presiding officer of an annual meeting
determines and declares that business was not properly brought before the
meeting in accordance with this Section 11, any such business shall not be
transacted.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business and
affairs of the Corporation shall be managed by the Board of Directors. The
Board of Directors may exercise all such authority and powers of the
Corporation and do all such lawful acts and things as are not by statute or the
Certificate of Incorporation or these By-Laws directed or required to be
exercised or done by the stockholders.
Section 2. A. Number, Classification, Term of Office,
Qualifications and Election. The Board of Directors shall
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initially consist of six directors. Thereafter, the number of directors of the
Corporation shall be determined by resolution approved by at least a majority
of the then authorized number of directors, but shall not be more than fifteen
nor less than five. The Board of Directors shall be divided into three classes
as nearly equal in number as possible, with the term of office of one class
expiring each year. The terms of office of the directors elected at the annual
meeting of stockholders in 1977 and initially classified shall be as follows:
directors of the first class shall hold office for a term expiring at the next
succeeding annual meeting; directors of the second class shall hold office for
a term expiring at the second succeeding annual meeting; and directors of the
third class shall hold office for a term expiring at the third succeeding
annual meeting. At each annual meeting of stockholders after the annual
meeting in 1977, directors elected to succeed the class of directors whose
terms expire at such annual meeting shall be elected to hold office for a term
expiring at the third succeeding annual meeting after their election. When the
number of directors is changed, any newly created directorships or any decrease
in directorships shall be so apportioned among the classes as to make all
classes as nearly equal in number as possible. Subject to the foregoing, the
respective classes for which directors shall be selected or chosen shall be
determined by resolution approved by at least a majority of the then authorized
number of directors. Each director shall hold office for the specified term
and until his successor shall be duly elected and qualified, or until his
death, or until he shall have resigned or he shall have been removed, as
hereinafter provided in these By-Laws, or as otherwise provided by statute or
by the Certificate of Incorporation. All the directors shall be of full age.
Directors need not be stockholders. Except as otherwise required by statute or
the Certificate of Incorporation or these By-Laws, directors to be elected at
each annual meeting of stockholders shall be elected by a plurality of the
votes cast at the meeting by the holders of shares present in person or
represented by proxy and entitled to vote for the election of directors.
B. Nomination of Directors. Only persons who are
nominated in accordance with the procedures set forth in this paragraph B shall
be eligible for election as a director at any meeting of stockholders for the
election of directors (an "Election Meeting"). Nominations of candidates for
election to the Board of Directors of the Corporation at an Election Meeting
may be made only by or at the direction of the Board of Directors or by a
stockholder entitled to vote at such Election Meeting. All such nominations,
except those made by or at the direction of the Board of Directors, shall be
made pursuant to timely notice in writing to the Secretary of the Corporation
of the stockholder's intention to make such nomination. To be timely, any such
notice must be received at the principal office of the Corporation not less
than sixty (60) nor more than ninety (90) days prior to the date of the
Election Meeting; provided, however, that in the
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event that less than 70 days' notice or prior public disclosure of the date of
the Election Meeting is given or made to stockholders, notice by the
stockholder to be timely must be received not later than the close of business
on the fifteenth day following the day on which such notice of the date of the
Election Meeting was mailed or such public disclosure was made. Such
stockholder's notice with respect to a proposed nomination shall set forth (a)
as to each person whom the stockholder proposes to nominate as a candidate for
election to the Board of Directors (i) the name, age, business address and
residence address and the principal occupation or employment of such person,
(ii) the class and number of shares of capital stock of the Corporation which
are beneficially owned by such person, (iii) such other information concerning
such person as would be required, under the rules of the Securities and
Exchange Commission, in a proxy statement soliciting proxies for the election
of such person and (iv) a signed consent of such person to serve as a Director
of the Corporation, if elected, and (b) as to the stockholder giving the notice
(i) the name and address of such stockholder, as they appear in the
Corporation's stock transfer books and (ii) the class and number of shares of
capital stock of the Corporation which are beneficially owned by such
stockholder. In the event that a person is validly designated as a nominee in
accordance with the procedures specified above 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 be,
may designate a substitute nominee; provided, however, that in the case of
persons not nominated by the Board of Directors, such a substitution may be
made only if notice as provided above in this paragraph B is received at the
principal office of the Corporation not later than the later of (x) thirty (30)
days prior to the date of the Election Meeting or (y) five (5) days after the
stockholder proposing the original nominee first learned that such original
nominee has become unable or unwilling to stand for election. If the presiding
officer of an Election Meeting determines and declares that a Director
nomination was not made in accordance with the foregoing procedures, such
nomination shall be void and shall be disregarded for all purposes.
Section 3. Annual Meeting. The Board of Directors shall meet
for the purpose of organization, the election of officers and the transaction
of other business, as soon as practicable after each annual meeting of the
stockholders, on the same day and at the same place where such annual meeting
shall be held. Notice of such meeting need not be given. Such meeting may be
held at any other time or place (within or without the State of Delaware) which
shall be specified in a notice thereof given as hereinafter provided in Section
6 of this Article III, or in a waiver of notice thereof.
Section 4. Regular Meetings. Regular meetings of the Board
of Directors shall be held at such times and places within
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or without the State of Delaware as the Board of Directors may from time to
time by resolution determine. If any day fixed for a regular meeting shall be
a legal holiday at the place where the meeting is to be held, then the meeting
which would otherwise be held on that day shall be held at the same hour on the
next succeeding business day. Notice of regular meetings of the Board of
Directors need not be given except as otherwise required by statute or these
By-Laws.
Section 5. Special Meetings. Special meetings of the Board
of Directors may be called at any time by the Chairman of the Board, the
President or any two directors of the Corporation and shall be held at such
time and at such place within or without the State of Delaware as shall be
specified in the notice of meeting or waiver thereof.
Section 6. Notice of Meetings. Notice of each special
meeting of the Board of Directors (and of each regular meeting for which notice
shall be required) shall be given by the Secretary as hereinafter provided in
this Section 6, in which notice shall be stated the time and place of the
meeting. Notice of each such meeting shall be delivered to each director,
either personally (including by courier) or by telephone, telex, telegraph, or
facsimile transmission at least twenty-four hours before the time at which such
meeting is to be held, or shall be mailed to each director by first-class mail
postage prepaid, addressed to him at his residence or usual place of business,
at least three days before the day on which such meeting is to be held. Notice
of any such meeting need not be given to any director who shall, either before
or after the meeting, submit a signed waiver of notice or who shall attend such
meeting without objecting, at the beginning of such meeting, to the transaction
of any business because the meeting is not lawfully called or convened. Except
as otherwise specifically required by these By-Laws, a notice or waiver of
notice of any regular or special meeting of the Board of Directors need not
state the purpose or purposes of such meeting.
Section 7. Quorum and Manner of Acting. Except as provided
in Section 5 of Article IX of these By-Laws, a majority of the directors shall
be present in person at any meeting of the Board of Directors in order to
constitute a quorum for the transaction of business at such meeting, and,
except as otherwise expressly required by statute or the Certificate of
Incorporation, the act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the Board of Directors. In the
absence of a quorum at any meeting of the Board of Directors, a majority of the
directors present thereat, or if no director be present, the Secretary, may
adjourn such meeting to another time and place, or such meeting, unless it be
the annual meeting of the Board of Directors, need not be held. At any
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at
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the meeting as originally called. Except as provided in Section 11 of this
Article III, Article IV and Section 4 of Article IX of these By-Laws and as
otherwise specifically authorized by resolution of the Board of Directors, the
directors shall act only as a Board of Directors and the individual directors
shall have no power as such.
Section 8. A. Organization of Meetings. At each meeting of
the Board of Directors, the Chairman of the Board, or, in his absence or
inability to act, the President, or, in his absence or inability to act,
another director chosen by a majority of the directors present, shall act as
chairman of the meeting and preside thereat. The minutes of the meeting shall
be recorded by any officer of the Corporation present and designated by the
chairman.
B. Chairman of the Board. The Board of Directors, by
action of a majority of the entire Board, shall from time to time designate a
Chairman of the Board, who shall serve at the discretion of the Board and who
shall, if present, preside at all meetings of the Board of Directors and
perform such other duties as may from time to time be assigned to him by the
Board of Directors. The Board of Directors may designate the Chairman of the
Board as an officer of the Corporation and, if so designated, the Chairman of
the Board shall, in addition, have such powers, and perform such duties, as are
incidental to the office of Chairman of the Board and as otherwise may be
assigned to him by the Board of Directors.
Section 9. Resignations. Any director of the Corporation may
resign at any time by giving written notice of his resignation to the Board of
Directors, the Chairman of the Board, the President or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time when it shall become effective shall not be specified
therein, immediately upon its receipt; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
Section 10. Removal of Directors. Except as otherwise
provided in the Certificate of Incorporation or in these By-Laws, any director
may be removed, but only for cause, at any time, by the affirmative vote of the
holders of a majority of the outstanding shares of stock entitled to vote for
the election of directors of the Company at a meeting of the stockholders
called and held for that purpose.
Section 11. Vacancies. Except as otherwise required by
statute or by the Certificate of Incorporation, during the intervals between
annual meetings of stockholders, any vacancies and any newly-created
directorships resulting from an increase in the authorized number of directors
shall be filled by a majority vote of the directors then in office, whether or
not a quorum, or
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by a sole remaining director, and the directors so chosen shall hold office
until the next election of the class for which such directors shall have been
chosen and until their successors shall be duly elected and qualified, unless
sooner displaced. If there are no directors in office, then a special meeting
of stockholders for the election of directors may be called and held in the
manner provided by statute. 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 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 in the filling of other
vacancies.
Section 12. Compensation. The Board of Directors or a
committee of the Board designated by it shall have authority to fix the
compensation, including without limitation fees and reimbursement of expenses,
of directors for services to the Corporation in any capacity; provided,
however, that no such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 13. Action without Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
Section 14. Participation in Meetings by Telephone and Other
Equipment. Members of the Board of Directors or of any committee thereof may
participate in a meeting of the Board or 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 in a
meeting pursuant to this Section shall constitute presence in person at such
meeting.
ARTICLE IV
Executive and Other Committees
Section 1. Executive and Other Committees. The Board of
Directors may, by a resolution passed by a majority of the whole Board,
designate an Executive Committee, to consist of three or more directors of the
Corporation, and one or more other committees, each such other committee to
consist of one or more of the directors of the Corporation. The Board of
Directors 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
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of any member of the Executive Committee or such other committee or committees,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. The Executive Committee, while the
Board of Directors is not in session, shall have and may exercise, and any such
other committee to the extent provided in the resolution of the Board of
Directors, 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; but no such committee shall have the power or
authority 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 amending the By-Laws of the
Corporation; and, unless the resolution or By-Laws expressly so provide, no
such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Each committee shall keep written minutes of
its proceedings and shall report such minutes to the Board of Directors when
required. All such proceedings shall be subject to revision or alteration by
the Board of Directors; provided, however, that rights of third parties shall
not be prejudiced by such revision or alteration. The Board of Directors, by
action of a majority of the entire Board, may at any time fill vacancies in,
change the membership of, or dissolve any such committee.
Section 2. Executive Committee: General. Regular meetings
of the Executive Committee shall be held at such times and places, within or
without the State of Delaware, as a majority of such Committee may from time to
time by resolution determine. Special meetings of the Executive Committee may
be called at the request of any member thereof and may be held at such times
and places, within or without the State of Delaware, as such Committee may from
time to time by resolution determine or as shall be specified in the respective
notices or waivers of notice thereof. Notice of regular meetings of such
Committee need not be given except as otherwise required by statute or these
By-Laws. Notice of each special meeting of such Committee shall be given to
each member of such Committee in the manner provided for in Section 6 of
Article III of these By-Laws. Subject to the provisions of this Article IV,
the Executive Committee, by resolution of a majority of such Committee, shall
fix its own rules of procedure. A majority of the Executive Committee shall be
present in person at any meeting of the Executive Committee in order to
constitute a quorum for the transaction of business at such meeting, and the
act of a majority of those present at any meeting at which a quorum is present
shall be the
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act of the Executive Committee. The members of the Executive Committee shall
act only as a committee, and the individual members shall have no power as
such.
Section 3. Other Committees: General. A majority of any
committee may fix its rules of procedure, determine its action, and fix the
time and place, within or without the State of Delaware, of its meetings,
unless the Board of Directors shall otherwise by resolution provide. Notice of
such meetings shall be given to each member of the committee in the manner
provided for in Section 6 of Article III of these By-Laws. Nothing in this
Article IV shall be deemed to prevent the Board of Directors from appointing
one or more committees consisting in whole or in part of persons who are not
directors of the Corporation; provided, however, that no such committee shall
have or may exercise any authority of the Board.
ARTICLE V
Officers
Section 1. Number and Qualifications. The officers of the
Corporation shall be a President, a Vice President of Finance, one or more
other Vice Presidents, a Secretary, and, if designated as an officer by the
Board of Directors, the Chairman of the Board. Any two or more offices may be
held by the same person. Such officers shall be elected from time to time by
the Board of Directors, each to hold office until the meeting of the Board
following the next annual meeting of the stockholders, or until his successor
shall have been duly elected and shall have qualified, or until his death, or
until he shall have resigned or until he shall have been removed, as
hereinafter provided in these By-Laws. The Board of Directors shall designate
a Chief Executive Officer and may, from time to time, appoint such other
officers (including a Treasurer and one or more Assistant Treasurers and
Assistant Secretaries) and such agents as it may deem necessary or desirable
for the business of the Corporation. The Board of Directors may from time to
time authorize any principal officer or committee to appoint, and to prescribe
the authority and duties of, any such subordinate officers or agents. Each of
such other officers and agents shall have such authority, perform such duties,
and hold office for such period, as are provided in these By-Laws or as may be
prescribed by the Board of Directors or by the principal officer or committee
appointing such officer or agent.
Section 2. Resignations. Any officer of the Corporation may
resign at any time by giving written notice of his resignation to the Board of
Directors, the Chairman of the Board, the President or the Secretary. Any such
resignation shall take effect at the time specified therein or, if the time
when it shall become effective shall not be specified therein,
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immediately upon its receipt; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 3. Removal. Any officer or agent of the Corporation
may be removed, either with or without cause, at any time, by the vote of the
majority of the entire Board of Directors at any meeting of the Board, or,
except in the case of an officer or agent elected or appointed by the Board, by
any principal officer or committee upon whom such power of removal may be
conferred by the Board.
Section 4. Vacancies. A vacancy in any office, whether
arising from death, resignation, disqualification, removal or any other cause,
may be filled for the unexpired portion of the term of the office which shall
be vacant, in the manner prescribed in these By-Laws for the regular election
or appointment to such office.
Section 5. President. The President shall, in the absence or
inability to act of the Chairman of the Board, preside at all meetings of the
Board of Directors. In general, the President shall have such other powers and
perform such other duties as may usually pertain to the office of President, or
as from time to time may be assigned to him by the Board of Directors or the
Chief Executive Officer, if the President is not the Chief Executive Officer.
Unless otherwise directed by the Board of Directors, when there is no Chairman
of the Board, or in the absence or inability to act of the Chairman of the
Board, the President shall perform all the duties and functions and exercise
all the powers of the Chairman of the Board.
Section 6. Chief Executive Officer. The President shall be
the Chief Executive Officer of the Corporation, unless the Board of Directors
has designated the Chairman of the Board an officer of the Corporation, in
which case the Board may designate either the Chairman of the Board or the
President the Chief Executive Officer of the Corporation. The officer so
designated shall have, in addition to the powers and duties applicable to the
office set forth in these By-laws, general and active supervision and direction
over the business and affairs of the Corporation and over its several officers,
agents and employees, subject, however, to the control of the Board of
Directors. The Chief Executive Officer shall see that all orders and
resolutions of the Board of Directors are carried into effect and, in general,
the Chief Executive Officer shall have such other powers and perform such other
duties as may be incidental to the position of Chief Executive Officer or as
from time to time may be assigned to him by the Board of Directors.
Section 7. Vice President of Finance. The Vice President of
Finance shall:
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(a) keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and have control of all
books of account of the Corporation;
(b) receive, and give receipts for, moneys due and payable to
the Corporation from any source whatsoever;
(c) disburse funds of the Corporation, taking proper vouchers
therefor;
(d) render to the Chairman of the Board, the President, the
Board or any committee thereof, whenever required, an account of the financial
condition of the Corporation and of his transactions as Vice President of
Finance; and
(e) in general, have such other powers and perform such other
duties as usually pertain to the office of Vice President of Finance or as from
time to time may be assigned to him by the Board of Directors or the Chief
Executive Officer.
At the request of the Treasurer or in case of the absence or
inability to act of the Treasurer, the Vice President of Finance shall perform
all the duties of the Treasurer, and when so acting, shall have all the powers
of and be subject to all the restrictions upon the Treasurer.
Section 8. Other Vice Presidents. Each other Vice President,
including the Executive Vice President, if appointed, shall have such powers
and perform such duties as usually pertain to his office or as from time to
time may be assigned to him by the Board of Directors or the Chief Executive
Officer.
Section 9. Treasurer. The Treasurer shall:
(a) have charge and custody of, and be responsible for, all
the funds and securities of the Corporation;
(b) cause all moneys and other valuables to be deposited to
the credit of the Corporation in such depositaries as may be designated by the
Board of Directors;
(c) supervise the investment of the Corporation's funds as
ordered or authorized by the Board of Directors, taking proper vouchers
therefor; and
(d) in general, have such other powers and perform such
other duties as from time to time may be assigned to him by the Board of
Directors or the Chief Executive Officer.
At the request of the Vice President of Finance or in case of
the absence or inability to act of the Vice President of Finance, the Treasurer
shall perform all the duties of the Vice President of Finance, and when so
acting, shall have all the
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powers of and be subject to all the restrictions upon the Vice President of
Finance.
Section 10. Assistant Treasurers. Each Assistant Treasurer
shall have such powers and perform such duties as usually pertain to his office
or as from time to time may be assigned to him by the Board of Directors, the
Chief Executive Officer or the Treasurer.
Section 11. Secretary. The Secretary shall:
(a) keep, or cause to be kept, in one or more books
provided for the purpose, the minutes of all meetings of the Board of
Directors, of the committees of the Board and of the stockholders;
(b) see that all notices are duly given in accordance
with the provisions of these By-Laws and as required by law;
(c) be custodian of the records and the seal of the
Corporation and affix and attest the seal to all stock certificates of the
Corporation (unless the seal of the Corporation on such certificates shall be a
facsimile, as hereinafter provided) and affix and attest the seal to all other
documents to be executed on behalf of the Corporation under its seal;
(d) see that the books, reports, statements, certificates
and other documents and records required by law to be kept and filed are
properly kept and filed; and
(e) in general, have such other powers and perform such
other duties as usually pertain to the office of Secretary or as from time to
time may be assigned to him by the Board of Directors or the Chief Executive
Officer.
Section 12. Assistant Secretaries. At the request of the
Secretary or in case of his absence or inability to act, the Assistant
Secretary, or if there be more than one, the Assistant Secretary designated by
the Board of Directors or, in the absence of such designation, by the
President, shall perform all the duties of the Secretary, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
Secretary. In general, each Assistant Secretary shall have such other powers
and perform such other duties as from time to time may be assigned to him by
the Board of Directors, the Chief Executive Officer or the Secretary.
Section 13. Officers' Bonds or Other Security. If required
by the Board of Directors, any officer of the Corporation shall give a bond for
the faithful performance of his duties, for such term and in such amount and
with such surety or sureties as the Board may require.
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Section 14. Compensation. The compensation of the officers
of the Corporation for their services as such officers shall be fixed from time
to time by the Board of Directors or a committee of the Board designated by it,
and no officer of the Corporation shall be prevented from receiving
compensation by reason of the fact that he is also a director of the
Corporation.
ARTICLE VI
Checks, Drafts, Bank Accounts, Etc.
Section 1. Checks, Drafts, etc. All checks, drafts, bills of
exchange or other orders for the payment of money out of the funds of the
Corporation, and all notes or other evidences of indebtedness of the
Corporation shall be signed in the name and on behalf of the Corporation by
such person or persons and in such manner as shall from time to time be
authorized by the Board of Directors.
Section 2. Deposits. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositaries as the Board
of Directors may from time to time designate or as may be designated by any
officer or officers of the Corporation to whom such power of designation may
from time to time be delegated by the Board of Directors. For the purpose of
deposit and for the purpose of collection for the account of the Corporation,
checks, drafts and other orders for the payment of money which are payable to
the order of the Corporation may be endorsed, assigned and delivered by any
officer or agent of the Corporation.
Section 3. General and Special Bank Accounts. The Board of
Directors may from time to time authorize the opening and keeping of general
and special bank accounts with such banks, trust companies or other
depositaries as the Board may designate or as may be designated by any officer
or officers of the Corporation to whom such power of designation may from time
to time be delegated by the Board of Directors. The Board of Directors may
make such special rules and regulations with respect to such bank accounts, not
inconsistent with provisions of these By-Laws, as it may deem expedient.
Section 4. Proxies in Respect of Securities of Other
Corporations. Unless otherwise provided by resolution adopted by the Board of
Directors, the Chairman of the Board, if designated an officer of the
Corporation, the President or any Vice President may from time to time appoint
an attorney or attorneys or agent or agents of the Corporation in the name and
on behalf of the Corporation to cast the votes which the Corporation may be
entitled to cast as the holder of stock or other securities in any other
corporation, any of whose stock or other securities may
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be held by the Corporation, at meetings of the holders of the stock or other
securities of such other corporation, or to consent in writing in the name of
the Corporation as such holder to any action by such other corporation, and may
instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent, and may execute or cause to be executed in the
name and on behalf of the Corporation and under its corporate seal, or
otherwise, all such written proxies or other instruments as he may deem
necessary or proper in the premises.
ARTICLE VII
Shares and Their Transfer - Examination of Books
Section 1. Stock Certificates. Every holder of stock of the
Corporation shall be entitled to have a certificate, in such form as shall be
approved by the Board of Directors, certifying the number and class of shares
of stock of the Corporation owned by him. The certificates representing shares
of the respective classes of stock shall be numbered in order of their issue
and shall be signed in the name of the Corporation by the Chairman of the
Board, if designated an officer of the Corporation, or the President or a Vice
President and by the Vice President of Finance, the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary, and sealed with the seal
of the Corporation (which seal may be a facsimile, engraved or printed). Any
or all the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue.
Section 2. Books of Account and Record of Stockholders. The
books and records of the Corporation may be kept at such places, within or
without the State of Delaware, as the Board of Directors may from time to time
determine. The stock record books and the blank stock certificate books shall
be kept by the Secretary or by any other officer or agent designated by the
Board of Directors.
Section 3. Transfers of Shares. Transfers of shares of stock
of the Corporation shall be made on the stock records of the Corporation only
upon authorization by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary or with a transfer agent or transfer clerk, and on surrender of the
certificate or certificates for such shares properly endorsed or accompanied by
a duly executed stock transfer power and the payment of all taxes thereon.
Except as otherwise provided by
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law, the Corporation shall be entitled to recognize the exclusive right of a
person in whose name any share or shares stand on the record of stockholders as
the owner of such share or shares for all purposes, including without
limitation the rights to receive dividends or other distributions and to vote
as such owner, and the Corporation may hold any such stockholder of record
liable for calls and assessments and the Corporation shall not be bound to
recognize any equitable or legal claim to or interest in any such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof. Whenever any transfers of shares shall be made for
collateral security and not absolutely, and both the transferor and transferee
request the Corporation to do so, such fact shall be stated in the entry of the
transfer.
Section 4. Regulations. The Board of Directors may make such
additional rules and regulations, not inconsistent with these By-Laws, as it
may deem expedient concerning the issue, transfer and registration of
certificates for shares of stock of the Corporation. It may appoint, or
authorize any officer or officers to appoint, one or more transfer agents or
one or more transfer clerks and one or more registrars and may require all
certificates for shares of stock to bear the signature or signatures of any of
them.
Section 5. Lost, Destroyed or Mutilated Certificates. The
holder of any certificate representing shares of stock of the Corporation shall
immediately notify the Corporation of any loss, destruction or mutilation of
such certificate, and the Corporation may issue a new certificate of stock in
the place of any certificate theretofore issued by it which the owner thereof
shall allege to have been lost, stolen or destroyed or which shall have been
mutilated, and the Board of Directors may, in its discretion, require such
owner or his legal representatives to give the Corporation and/or any agent of
the Corporation designated by it a bond in such sum, limited or unlimited, and
in such form and with such surety or sureties as the Board in its absolute
discretion shall determine, to indemnify the Corporation and/or such agent
against any claim that may be made against it on account of the alleged loss
theft, or destruction of any such certificate, or the issuance of a new
certificate. Anything herein to the contrary notwithstanding, the Board of
Directors, in its absolute discretion, may refuse to issue any such new
certificate, except pursuant to legal proceedings under the laws of the State
of Delaware.
Section 6. Stockholder's Right of Inspection. Any
stockholder of record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during
the usual hours of business to inspect for any proper purpose the Corporation's
stock ledger, a list of its stockholders, and its other books and records, and
to make copies or extracts therefrom. A proper purpose shall mean a
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purpose reasonably related to such person's interest as a stockholder. In
every instance where an attorney or other agent shall be the person who seeks
the right to inspection, the demand under oath shall be accompanied by a power
of attorney or such other writing which authorizes the attorney or other agent
to so act on behalf of the stockholder. The demand under oath shall be
directed to the Corporation at its registered office in the State of Delaware
or at its principal place of business.
Section 7. Fixing of Record Date. In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to express consent
to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall be not 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.
ARTICLE VIII
Dividends
Subject to the provisions of the Certificate of Incorporation
relating thereto, if any, dividends upon the capital stock of the Corporation
may be declared by the Board of Directors at any regular or special meeting,
pursuant to law. Subject to the provisions of the Certificate of
Incorporation, dividends may be paid in cash, in property or in shares of the
capital stock of the Corporation.
Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
Board of Directors from time to time, in its absolute discretion, think proper
as a reserve or reserves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other
purpose or purposes as the Board of Directors shall determine to be in the
interest of the Corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
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ARTICLE IX
Indemnification
Section 1. Right to Indemnification. The Corporation shall,
to the fullest extent permitted by applicable law as then in effect, indemnify
any person (the "Indemnitee") who was or is involved in any manner (including,
without limitation, as a party or a witness) or was or is threatened to be made
so involved in any threatened, pending or completed investigation, claim,
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including, without limitation, any action, suit or proceeding by
or in the right of the Corporation to procure a judgment in its favor)(a
"Proceeding") by reason of the fact that he 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, without limitation, service with respect
to any employee benefit plan), whether the basis of any such Proceeding is
alleged action in an official capacity as a director or officer or in any other
capacity while serving as a director or officer, against all expenses,
liability and loss (including, without limitation, attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) actually and reasonably incurred by him in connection with such
Proceeding. The right to indemnification conferred in this Article IX shall
include the right to receive payment in advance of any expenses incurred by the
Indemnitee in connection with such Proceeding, consistent with applicable law
as then in effect. All right to indemnification conferred in this Article IX,
including such right to advance payments and the evidentiary, procedural and
other provisions of this Article IX, shall be a contract right. The
Corporation may, by action of its Board of Directors, provide indemnification
for employees, agents, attorneys and representatives of the Corporation with up
to the same scope and extent as provided for officers and directors.
Section 2. Insurance, Contracts and Funding. The Corporation
may purchase and maintain insurance to protect itself and any person who is,
was or may become an officer, director, employee, agent, attorney or
representative of the Corporation or, at the request of the Corporation, an
officer, director, employee, agent, attorney or representative of another
corporation or entity, against any expense, liability or loss asserted against
him or incurred by him in connection with any Proceeding in any such capacity,
or arising out of his status as such, whether or not the Corporation would have
the power to indemnify him against such expense, liability or loss under the
provisions of this Article IX or otherwise. The Corporation may enter into
contracts with any director, officer, employee, agent, attorney or
representative of the Corporation, or any person serving as such at the request
of the Corporation for another
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corporation or entity, in furtherance of the provisions of Article TENTH of the
Certificate of Incorporation or this Article IX and may create a trust fund,
grant a security interest or use other means (including, without limitation, a
letter of credit) to ensure the payment of such amounts as may be necessary to
effect indemnification of any person entitled thereto.
Section 3. Indemnification; Not Exclusive Right. The right
of indemnification provided in this Article IX shall not be exclusive of any
other rights to which any person seeking indemnification may otherwise be
entitled under any provision of the Certificate of Incorporation, By-Laws or
agreement or otherwise. The provisions of this Article IX shall inure to the
benefit of the heirs and legal representatives of any person entitled to
indemnity under this Article IX and shall be applicable to all Proceedings,
whether arising from acts or omissions occurring before or after the adoption
of this Article IX. No amendment or repeal of any provision of this Article IX
shall remove, abridge or adversely affect any right of indemnification or any
other benefits of the Indemnitee under the provisions of this Article IX with
respect to any Proceeding involving any act or omission which occurred prior to
such amendment.
Section 4. Advancement of Expenses; Procedures; Presumptions
and Effect of Certain Proceedings; Remedies. In furtherance, but not in
limitation, of the provisions of the Certificate of Incorporation or the
foregoing provisions of this Article IX, the following procedures, presumptions
and remedies shall apply with respect to advancement of expenses and the right
to indemnification under the Certificate of Incorporation or this Article IX:
(a) Advancement of Expenses. All reasonable expenses
incurred by or on behalf of the Indemnitee in connection with any Proceeding
shall be advanced to the Indemnitee by the Corporation within 20 days after the
receipt by the Corporation of a statement or statements from the Indemnitee
requesting such advance or advances from time to time, whether prior to or
after final disposition of such Proceeding. Such statement or statements
reasonably shall evidence the expenses incurred by the Indemnitee and, if
required by law at the time of such advance, shall include or be accompanied by
an undertaking by or on behalf of the Indemnitee to repay the amounts advanced
if it should ultimately be determined that the Indemnitee is not entitled to be
indemnified against such expense pursuant to this Article IX.
(b) Procedure for Determination of Entitlement to
Indemnification.
(i) To obtain indemnification, an Indemnitee shall
submit to the President or Secretary of the Corporation a written
request, including such documentation and
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information as is reasonably available to the Indemnitee and
reasonably necessary to determine whether and to what extent the
Indemnitee is entitled to indemnification (the "Supporting
Documentation"). The determination of the Indemnitee's entitlement to
indemnification shall be made not later than 60 days after receipt by
the Corporation of the written request for indemnification together
with the Supporting Documentation. The President or Secretary of the
Corporation shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that the
Indemnitee has requested indemnification.
(ii) The Indemnitee's entitlement to indemnification
shall be determined in one of the following ways: (A) by a majority
vote of the Disinterested Directors (as hereinafter defined) (or the
Disinterested Director, if only one); (B) by a written opinion of
Independent Counsel (as hereinafter defined) if (x) a Change in
Control (as hereinafter defined) shall have occurred and the
Indemnitee so requests or (y) there is no Disinterested Director or a
majority of the Disinterested Directors (or the Disinterested
Director, if only one) so directs; (C) by the stockholders of the
Corporation (but only if a majority of the Disinterested Directors (or
the Disinterested Director, if only one) determines that the issue of
entitlement to indemnification should be submitted to the stockholders
for their determination); or (D) as provided in Section 4(c) of this
Article IX.
(iii) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 4(b)(ii) of this Article IX, a majority of the Disinterested
Directors (or the Disinterested Director, if only one) shall select
the Independent Counsel, but only an Independent Counsel to which the
Indemnitee does not reasonably object; provided, however, that if a
Change in Control shall have occurred, the Indemnitee shall select
such Independent Counsel, but only an Independent Counsel to which the
Board of Directors does not reasonably object.
(c) Presumptions and Effect of Certain Proceedings.
Except as otherwise expressly provided in this Article IX, the Indemnitee shall
be presumed to be entitled to indemnification upon submission of a request for
indemnification together with the Supporting Documentation in accordance with
Section 4(b)(i) of this Article IX, and thereafter the Corporation shall have
the burden of proof to overcome that presumption in reaching a contrary
determination. In any event, if the person or persons empowered under Section
4(b) of this Article IX to determine entitlement to indemnification shall not
have been appointed or shall not have made a determination within 60 days after
receipt by the Corporation of the request therefor together with the Supporting
Documentation, the Indemnitee shall be deemed to be
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entitled to indemnification. With regard to the right to indemnification for
expenses, if and to the extent that the Indemnitee has been successful on the
merits or otherwise in any Proceeding, or if and to the extent that the
Indemnitee was not a party to the Proceeding or if a Proceeding was terminated
without a determination of liability on the part of the Indemnitee with respect
to any claim, issue or matter therein or without any payments in settlement or
compromise being made by the Indemnitee with respect to a claim, issue or
matter therein, the Indemnitee shall be deemed to be entitled to
indemnification, which entitlement shall not be diminished by any determination
which may be made pursuant to Sections (4)(b)(ii)(A), (B) or (C). In either
case, the Indemnitee shall be entitled to such indemnification, unless (A) the
Indemnitee misrepresented or failed to disclose a material fact in making the
request for indemnification or in the Supporting Documentation or (B) such
indemnification is prohibited by law, in either case as finally determined by
adjudication or, at the Indemnitee's sole option, arbitration (as provided in
Section 4(d)(i) of this Article IX). The termination of any Proceeding
described in Section 1 of this Article IX; or of any claim, issue or matter
therein, by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, adversely affect the right
of the Indemnitee to indemnification or create any presumption with respect to
any standard of conduct or belief or any other matter which might form a basis
for a determination that the Indemnitee is not entitled to indemnification.
(d) Remedies of Indemnitee.
(i) In the event that a determination is made
pursuant to Section 4(b) of this Article IX that the Indemnitee is not
entitled to indemnification under this Article IX, (A) the Indemnitee
shall be entitled to seek an adjudication of his entitlement to such
indemnification either, at the Indemnitee's sole option, in (x) an
appropriate court of the State of Delaware or any other court of
competent jurisdiction or (y) an arbitration to be conducted by three
arbitrators (or, if the dispute involves less than $100,000, by a
single arbitrator) pursuant to the rules of the American Arbitration
Association; (B) any such judicial proceedings or arbitration shall be
de novo and the Indemnitee shall not be prejudiced by reason of such
adverse determination; and (C) in any such judicial proceeding or
arbitration the Corporation shall have the burden of proof that the
Indemnitee is not entitled to indemnification under this Article IX.
(ii) If a determination shall have been made or deemed
to have been made, pursuant to Section 4(b) or (c) of this Article IX,
that the Indemnitee is entitled to indemnification, the Corporation
shall be obligated to pay the amounts constituting such
indemnification within five
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days after such determination has been made or deemed to have been
made and shall be conclusively bound by such determination, unless (A)
the Indemnitee misrepresented or failed to disclose a material fact in
making the request for indemnification or in the Supporting
Documentation or (B) such indemnification is prohibited by law, in
either case as finally determined by adjudication or, at the
Indemnitee's sole option, arbitration (as provided in Section 4(d)(i)
of this Article IX). In the event that (C) advancement of expenses is
not timely made pursuant to Section 4(a) of this Article IX or (D)
payment of indemnification is not made within five days after a
determination of entitlement to indemnification has been made or
deemed to have been made pursuant to Section 4(b) or (c) of this
Article IX, the Indemnitee shall be entitled to seek judicial
enforcement of the Corporation's obligation to pay to the Indemnitee
such advancement of expenses or indemnification. Notwithstanding the
foregoing, the Corporation may bring an action, in an appropriate
court in the State of Delaware or any other court of competent
jurisdiction, contesting the right of the Indemnitee to receive
indemnification hereunder due to the occurrence of an event described
in subclause (A) or (B) of this clause (ii) (a "Disqualifying Event"),
provided, however, that if the Indemnitee shall elect, at his sole
option, that such dispute shall be determined by arbitration (as
provided in Section 4(d)(i) of this Article IX), the Corporation shall
proceed by such arbitration. In any such enforcement or other
proceeding or action in which whether a Disqualifying Event has
occurred is an issue, the Corporation shall have the burden of proving
the occurrence of such Disqualifying Event.
(iii) The Corporation shall be precluded from asserting
in any judicial proceeding or arbitration commenced pursuant to this
Section 4(d) that the procedures and presumptions of this Article IX
are not valid, binding and enforceable and shall stipulate in any such
court or before any such arbitrator or arbitrators that the
Corporation is bound by all the provisions of this Article IX.
(iv) In the event that the Indemnitee, pursuant to
this Article IX, seeks a judicial adjudication of or an award in
arbitration to enforce his rights under, or to recover damages for
breach of, this Article IX, or is otherwise involved in any
adjudication or arbitration with respect to his right to
indemnification, the Indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against, any
expenses actually and reasonably incurred by him if the Indemnitee
prevails in such judicial adjudication or arbitration. If it shall be
determined in such judicial adjudication or arbitration that the
Indemnitee is entitled to receive part but not all of the
indemnification or advancement of
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expenses sought, the expenses incurred by the Indemnitee in connection
with such judicial adjudication or arbitration shall be prorated
accordingly.
(e) Definitions. For purposes of this Section 4:
(i) "Change in Control" means a change in control of
the Corporation of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934 (the "Act"), as such Item
was in effect on July 1, 1990, whether or not the Corporation is then
subject to such reporting requirement; provided that, without
limitation, such a change in control shall be deemed to have occurred
if (A) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Act) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Act), directly or indirectly, of securities of the
Corporation representing 20 percent or more of the combined voting
power of the Corporation's then outstanding securities without the
prior approval of at least two-thirds of the members of the Board of
Directors in office immediately prior to such acquisition; (B) the
Corporation is a party to a merger, consolidation, sale of assets or
other reorganization, or a proxy contest, as a consequence of which
members of the Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board of
Directors thereafter; or (C) during any period of two consecutive
years, individuals who at the beginning of such period constituted the
Board of Directors (including for this purpose any new director whose
election or nomination for election by the Corporation's stockholders
was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such period)
cease for any reason to constitute at least a majority of the Board of
Directors.
(ii) "Disinterested Director" means a director of the
Corporation who is not or was not a material party to the Proceeding
in respect of which indemnification is sought by the Indemnitee.
(iii) "Independent Counsel" means a law firm or a
member of a law firm that neither presently is, nor in the past five
years has been, retained to represent: (A) the Corporation or the
Indemnitee in any matter or (B) any other party to the Proceeding
giving rise to a claim for indemnification under this Article IX.
Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any person who, under the applicable standards of
professional conduct then prevailing under the law of the State of
Delaware, would have a conflict of interest in representing either the
Corporation or the Indemnitee in an
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<PAGE> 26
action to determine the Indemnitee's rights under this Article IX.
Section 5. Acts of Disinterested Directors. Disinterested
Directors considering or acting on any indemnification matter under this
Article IX or otherwise may consider or take action as the Board of Directors
or may consider or take action as a committee or individually or otherwise. In
the event Disinterested Directors consider or take action as the Board of
Directors, one-third of the total number of directors shall constitute a
quorum.
Section 6. Severability. If any provision or provisions of
this Article IX shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (I) the validity, legality and enforceability of the
remaining provisions of this Article IX (including, without limitation, all
portions of any paragraph of this Article IX containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby;
and (ii) to the fullest extent possible, the provisions of this Article IX
(including, without limitation, all portions of any paragraph of this Article
IX containing any such provision held to be invalid, illegal or unenforceable,
that are not themselves invalid, illegal or unenforceable) shall be construed
so as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
ARTICLE X
Fiscal Year
The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
ARTICLE XI
Seal
The Board of Directors shall provide a corporate seal, which
shall be circular in form and bear the name of the Corporation and the words
and figures denoting its organization under the laws of the State of Delaware
and the year thereof.
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ARTICLE XII
Amendments
These By-Laws may be amended or repealed, or new By-Laws may
be adopted, except as provided in Section 3 of Article IX of these By-Laws, (a)
at any annual or special meeting of the stockholders, by a majority of the
total votes of the stockholders or when stockholders are entitled to vote by
class, by a majority of the appropriate class, present in person or represented
by proxy and entitled to vote on such action; provided, however, that the
notice of such meeting shall have been given as provided in these By-Laws,
which notice shall mention that amendment or repeal of these By-Laws or the
adoption of new By-Laws is one of the purposes of such meeting, or (b) by the
Board of Directors at any meeting thereof; provided, however, that notice of
such meeting shall have been given as provided in these By-Laws, which notice
shall mention that amendment or repeal of the By-Laws or the adoption of new
By-Laws is one of the purposes of such meeting; provided, further, that By-Laws
adopted by the Board of Directors may be amended or repealed by the
stockholders as hereinabove provided; provided, further, that the stockholders
may limit the power of the Board of Directors to make, amend, alter or repeal
the By-Laws of the Company. Notwithstanding the foregoing, the provisions of
these By-Laws with respect to the number, classification, term of office,
qualifications, election and removal of directors and the filling of vacancies
and newly created directorships, and the amendment thereof, that is, Sections
2, 10 and 11 of Article III and this Article XII, may be amended or repealed or
new By-Laws affecting such provisions may be adopted only with the unanimous
approval of the entire Board of Directors or by the affirmative vote of the
holders of at least 80% of the outstanding shares of stock of the Corporation
entitled to vote in elections of directors (except that if such proposed
amendment or repeal or adoption of new By-Laws shall be submitted to the
stockholders with the unanimous recommendation of the entire Board of
Directors, such provisions may be amended or repealed or such new By-Laws may
be adopted by the affirmative vote of the holders of a majority of such stock).
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