<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
MARCH 7, 1997
(DATE OF REPORT)
PLD TELEKOM INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 0-20444 NOT APPLICABLE
(STATE OR OTHER JURISDICTION OF (COMMISSION (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) FILE NUMBER) ID NO.)
C/O PLD MANAGEMENT SERVICES LIMITED
43 DOVER STREET
LONDON ENGLAND W1X 3RE
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
44-171-629-3217
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
NOT APPLICABLE
(FORMER NAME, FORMER ADDRESS AND FORMER FISCAL YEAR,
IF CHANGED SINCE LAST REPORT)
<PAGE> 2
ITEM 5. OTHER EVENTS.
On March 3, 1997, the Registrant announced by press release (the
"Press Release") the change of its corporate domicile from Canada to the United
States.
The Registrant hereby incorporates by reference the Press Release,
which is attached hereto as Exhibit 99 and made a part hereof, into this Item 5.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Businesses Acquired: None
(b) Pro Forma Financial Information: None
(c) Exhibits:
3.1 Certificate of Domestication of the Registrant.
3.2 Certificate of Incorporation of the Registrant.
3.3 Bylaws of the Registrant.
99 Press Release, dated March 3, 1997.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PLD TELEKOM INC.
Date: March 7, 1997 By: /s/ Simon Edwards
---------------------------
Chief Financial Officer and
Treasurer
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EXHIBIT INDEX
Exhibit
3.1 Certificate of Domestication of the Registrant.
3.2 Certificate of Incorporation of the Registrant.
3.3 Bylaws of the Registrant.
99 Press Release, dated March 3, 1997.
<PAGE> 1
Exhibit 3.1
CERTIFICATE OF DOMESTICATION
OF
PLD TELEKOM INC.
The undersigned, James R.S. Hatt, Chairman, President and Chief
Executive Officer, of PLD Telekom Inc., in accordance with the provisions of
Section 388 of Title 8 of the Delaware Code does hereby certify:
FIRST: The Corporation was first formed on May 23, 1978 in Toronto,
Ontario, Canada.
SECOND: The name of the Corporation immediately prior to the filing of
this Certificate of Domestication was PLD Telekom Inc.
THIRD: The name of the Corporation under which it is filing a
Certificate of Incorporation is: PLD Telekom Inc.
FOURTH: The jurisdiction that constituted the seat, siege social,
principal place of business or central administration of the Corporation
immediately prior to the filing of this Certificate of Domestication was
Ontario, Canada. Attached as Exhibit A to this Certificate of Domestication is a
copy of the Application for Authorization to Continue in Another Jurisdiction,
which was authorized under the Business Corporations Act (Ontario) on February
27, 1997.
IN WITNESS WHEREOF, I, being the Chairman, President and Chief
Executive Officer and duly authorized to sign this Certificate of Domestication
on behalf of the Corporation have made, signed and sealed this Certificate of
Domestication on this 28th day of February, 1997.
PLD TELEKOM INC.
By: /s/ James R. S. Hatt
---------------------------
James R.S. Hatt
<PAGE> 2
EXHIBIT A
[Authorization seal/stamp, written Ontario Corporation Number
in English and French, dated Numero social en Ontario
February 27 Fevrier, 1997 and signed] 385568
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
APPLICATION FOR AUTHORIZATION TO CONTINUE IN ANOTHER JURISDICTION
DEMANDE D'AUTORISATION DE MAINTIEN
SOUS LE REGIME D'UNE AUTRE AUTORITE LEGISLATIVE
<S> <C> <C>
Form 7 1. The name of the corporation is: Denomination sociale de la societe:
Business P/L/D/ /T/E/L/E/K/O/M/ /I/N/C/./
Corporations / / / / / / / / / / / / / / / /
Act / / / / / / / / / / / / / / / /
2. Date of incorporation/amalgamation: Date de la constitution ou de la fusion:
1978 MAY 23
Formula 7 -------------------------------------------------------------------------------------------------------------------
Loi sur les (Year, Month, Day)
societes par (annee, mois, jour)
actions
3. The corporation is offering securities to the La societe offre/n'offre pas des valeurs au public au sens
public within the meaning of subsection 1(6) of the du paragraphe 1(6) de la Loi sur les societes par actions.
Business Corporations Act.
4. The corporation is not in default in filing notices La societe a depose tous les avis requis par la Loi sur
and returns under the Corporations Information Act. les renseignements exiges des personnes morales.
5. There are not actions, suits or proceedings pending Aucune action ni aucune instance n'est en cours contre la
against the corporation and no unsatisfied societe et les jugements ou les ordonnances a l'encontre
judgements or orders outstanding against the de la societe ont ete executes a l'exception de
corporation, except as follows: ce qui suit:
N/A
Dye & Durham
Form 7 (PGA)
OU/C9
</TABLE>
<PAGE> 3
6. It is requested that the corporation La societe demande
be authorized under section 181 of l'autorisation aux termes
the Business Corporations Act to de l'article 181 de la Loi sur
apply to the proper officer les societes par actions de
for an instrument of continuance s'adresser au fonctionnaire
continuing the corporation as if it competent pour obtenir un
had been incorporated under the laws of certificat de maintien de
la meme facon que si elle
avait ete constituee en vertu
des lois de/du
STATE OF DELAWARE, U.S.A
7. The necessity thereof is as follows: La presente demande se fonde sur
les motifs suivants:
Enhanced ability to raise financing: elimination of negative U.S. tax
consequences; increased flexibility in composition of board of directors.
8. The laws of the jurisdiction to which Les lois de l'autorite
the corporation will apply for an legislative a laquelle la
instrument of continuance provide in societe demandera un certificat
effect that: de maintien prevoient ce qui
suit:
(a) The property of the corporation (a) les biens de la societe
continues to be the property deviennent les biens de la
of the body corporate; personne morale;
(b) The body corporate continues to be (b) la personne morale continue
liable for the obligations of the d'etre tenue des obligations
corporation; de la societe;
(c) An existing cause of action, claim (c) le maintien n'a pas de
or liability to prosecution is consequence sur les causes
unaffected; d'action, les creances et
les poursuites dont la
societe est possible;
(d) A civil, criminal or administrative (d) les instances civiles,
action or proceeding pending by or penales ou administratives
against the corporation may be auxquelles la societe est
continued to be prosecuted by or partie peuvent etre
or against the body corporate; and continuees par la personne
morale ou contre elle; et
(e) A conviction against the corporation (e) les condamnations prononcees
may be enforced against the body a l'encontre de la societe
corporate or a ruling, order or sont susceptibles
judgement in favor of or against the d'execution a l'encontre de
corporation may be enforced by or la personne morale et les
against the body corporate. ordonnances ou les jugements
prononces en faveur de la
societe ou contre elle sont
susceptibles d'execution par
la personne morale ou contre
elle.
9. This application has been authorized La presente demande a ete
by a special resolution. autorisee par resolution
speciale.
10.This application is accompanied by the La presente demande est
consent of: accompagne du consentement:
(a) The Corporations Tax Branch of the (a) d'une part, de la Direction
Ministry of Finance and de l'Imposition des
corporations du ministere
des Finances;
(b) The Ontario Securities Commission. (b) d'autre part, de la
Commission des valeurs
mobilieres de l'Ontario.
This application is signed in duplicate. La presente demande est signee
en double exemplaires.
PLD TELEKOM INC.
----------------------------------------
(Name of Corporation)
(La nomination de la societe)
By/Par: /s/ Alan F. Brown Secretary
----------------------------------------
(Signature) (Description of Office)
(Signature) (Function)
<PAGE> 1
Exhibit 3.2
CERTIFICATE OF INCORPORATION
OF
PLD TELEKOM INC.
The undersigned incorporator, for the purpose of incorporating or
organizing a corporation under the General Corporation Law of the State of
Delaware, certifies:
FIRST: The name of the corporation is PLD Telekom Inc.
SECOND: The address of the Corporation's registered office in the State
of Delaware is 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is the Corporation
Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 100,000,000 shares of Common Stock, $.01 par value,
and 100,000,000 shares of Preferred Stock, $.01 par value. The voting powers
designations, preferences, rights and qualifications, limitations and
restrictions of the Common Stock and the Preferred Stock shall be as set forth
on Exhibit A, attached hereto and made a part hereof.
FIFTH: The name and mailing address of the incorporator is E. Clive
Anderson, Morgan, Lewis & Bockius LLP, 2000 One Logan Square, Philadelphia,
Pennsylvania 19103.
SIXTH: Elections of directors need not be by ballot unless the By-Laws
of the Corporation shall so provide.
SEVENTH: The Board of Directors of the Corporation may make By-Laws and
from time to time may alter, amend or repeal By-Laws.
EIGHTH: No director of the Corporation shall be 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 involve 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.
NINTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the
1
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said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders, of this
Corporation, as the case may be, and also on this Corporation.
IN WITNESS WHEREOF, I have signed this Certificate this 28th day of
February, 1997.
/s/ E. Clive Anderson
------------------------------
E. Clive Anderson
2
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EXHIBIT A
1. The holders of the Common Stock are entitled:
a. to vote at all meetings of shareholders, except meetings at which
only holders of a specified class of shares are entitled to vote;
b. to receive any dividend declared thereon by the Corporation; and
c. subject to the rights, privileges, restrictions and conditions
attaching to any other class of shares of the Corporation, to receive the
remaining property of the Corporation upon dissolution.
2. The rights, privileges, restrictions and conditions attaching to the
Preferred Stock as a class are as follows:
a. Preferred Stock Issuable in Series. The Directors of the
Corporation may at any time and from time to time issue the Preferred
Stock in one (1) or more series, each to consist of such number of
shares as may, before issuance thereof, be fixed by resolution of the
Board of Directors of the Corporation. The number of shares in any
series may from time to time be increased by the Directors upon
compliance with the same conditions as are applicable to the issue of
shares in a new series. The Board of Directors of the Corporation may
(subject as hereinafter provided) by resolution duly passed before the
issue of any Preferred Stock of any series from time to time determine
the designation, rights, privileges, restrictions and conditions to be
attached to the Preferred Stock of each Series, including but without
in any way limiting or restricting the generality of the foregoing, the
rate or amount of preferential dividends, whether cumulative,
non-cumulative or partially cumulative, the date or dates and place or
places of payment thereof, the consideration and the terms and
conditions of any purchase for cancellation or redemption thereof,
conversion rights (if any), the terms and conditions of any share
purchase plan or sinking funds and the restrictions (if any) respecting
payment of dividends on, or the repayment of capital in respect of, any
shares ranking junior to the Preferred Stock, the whole subject to the
preferences, rights, privileges, restrictions and conditions attaching
to the Preferred Stock as a class and also subject to the filing of
Articles of Amendment in the prescribed form to designate a series of
Preferred Stock.
b. Parity of Preferred Stock. The Preferred Stock of each series
shall rank on a parity with the Preferred Stock of every other series
with respect to priority in payment of dividends and in the
distribution of assets and return of capital in the event of the
liquidation, dissolution or winding-up of the Corporation, whether
voluntary or involuntary, or any other distribution of the assets of
the Corporation among its shareholders for the purpose of winding-up
its affairs, or on the occurrence of any other event as a result of
which the holders of all series of Preferred Stock are then entitled to
a return of capital.
c. Preference as to Dividends and Distributions. The Preferred Stock
shall be entitled to a preference over the Common Stock of the
Corporation and over any other shares ranking junior to the Preferred
Stock with respect to priority in the payment of dividends and in the
distribution of assets and return of capital in the event of the
liquidation, dissolution or winding-up of the Corporation, whether
voluntary or involuntary, or any other distribution of the assets of
the Corporation among its shareholders for the purpose of winding-up
its affairs, or on the occurrence of any other event as a result of
which the holders of all series of Preferred Stock are then entitled to
a return of capital, but such preference shall not exceed the amount
paid up on the Preferred Stock plus the amount of dividends in arrears
or accrued and unpaid on such shares. The Preferred Stock of each
series may also be given such other preferences not inconsistent with
the provisions herein set forth over the Common Stock of the
Corporation and any other shares ranking junior to the Preferred Stock
as may be determined in the case of each series authorized to be
issued. When any cumulative dividends in respect of a series of
Preferred Stock or amounts payable on a winding-up, or on the
occurrence of any other
3
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event as a result of which the holders of the Preferred Stock of all
series are then entitled to a return of capital, are not paid in full,
the Preferred Stock of all series shall participate ratably in respect
of such accumulated dividends, in accordance with the amounts that
would be payable on such shares if all such accumulated dividends were
paid in full and on any return of capital in accordance with the
amounts that would be payable on such return of capital if all amounts
so payable were paid in full; provided, however, that in the event of
there being insufficient assets to satisfy in full all such claims
aforesaid, the claims of the holders shall first be paid and satisfied
and any assets remaining thereafter shall be applied towards the
payment and satisfaction of claims in respect of dividends. After
payment to the holders of the Preferred Stock of the amount payable to
them aforesaid, they shall not be entitled to share in any further
distribution of property or assets of the Corporation.
e. Voting Rights. The holders of the Preferred Stock shall be
entitled to receive copies of the annual financial statements of the
Corporation and the auditors' report thereon to be submitted to the
annual meeting of shareholders, but, except as otherwise specifically
provided by law and except as may otherwise be specifically provided in
the provisions attaching to any series of the Preferred Stock, the
holders of Preferred Stock shall not be entitled as such to receive
notice of or to attend any meeting of the shareholders of the
Corporation, or to vote at any such meeting. In any instance where the
holders of Preferred Stock are entitled to vote, each holder of
Preferred Stock shall be entitled to one (1) vote in respect of each
Preferred share held.
f. Purchase for Cancellation, Redemption and Conversion. Subject to
the provisions of the Delaware General Corporations Law and to the
provisions relating to any particular series, Preferred Stock of any
series may be purchased for cancellation or made subject to redemption
by the Corporation in whole or in part, and may have attached thereto a
right of conversion into Common Stock or other securities of the
Corporation, at such time and at such prices and upon such other terms
and conditions as may be specified in the special rights and
restrictions attaching to the Preferred Stock of such series as set
forth in the resolution of the Board of Directors of the Corporation
relating to such series.
g. No Pre-Emptive Rights. The holders of Preferred Stock of any
series shall not, as such, be entitled as of right to subscribe for or
purchase or receive any part of any issue of shares or of bonds,
debentures or other securities of the Corporation now or hereafter
authorized otherwise than in accordance with the conversion, exchange
or other rights, if any, which may from time to time attach to that
series.
h. Amendments to Preferred Stock. The class provisions attaching to
the Preferred Stock may be amended with the approval of all of the
holders thereof given in writing or by the affirmative vote of at least
two-thirds of the votes cast at a meeting of the holders of such shares
duly called for that purpose and a quorum for such meeting is not less
than two holders of the outstanding Preferred Stock being present in
person or represented by proxy.
3. Provisions Attaching to the Series II Convertible Preferred Stock.
The first series of Preferred Stock of the Corporation shall consist of
405,217 shares having a redemption value of Cdn. $1.00, shall be
designated as Series II Convertible Preferred Stock and, in addition to
the rights, conditions, restrictions and limitations attached to the
Preferred Stock as a class, shall have attached thereto rights,
conditions, restrictions and limitations substantially as hereinafter
set forth, that is to say:
a. Voting Rights
1.01 The Series II Convertible Preferred Stock shall have no
voting rights as specified in the class provisions attached to
the Preferred Stock.
b. Issue Price
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2.01 The redemption value, the issue price and the amount paid
up with respect to the Series II Convertible Preferred Stock
shall be Cdn. $1.00 per share.
c. Redemption
3.01 On and after October 15, 1991, at its option, the
Corporation may redeem the Series II Convertible Preferred
Stock, whereupon all holders of shares of Series II
Convertible Preferred Stock shall surrender for redemption all
of their outstanding Series II Convertible Preferred Stock on
payment by the Corporation of Cdn. $1.00 for each share to be
redeemed.
3.02 On the redemption of Series II Convertible Preferred
Stock under this Section 3, the Corporation shall give, in the
manner provided in Section 5, at least 30 days prior notice to
each person who, at the date of giving such notice, is the
holder of shares of Series II Convertible Preferred Stock of
the right of the Corporation to redeem such shares. Such
notice shall set out the redemption price and confirm the date
on which the redemption is to take place and such notice shall
state the then applicable Current Conversion Price (as defined
in subsection 3.01). Such notice shall also advise the holder
that the right of the holder to convert the shares so to be
redeemed will cease and terminate at the close of business on
the business day immediately prior to the date on which
redemption is to take place. On the date specified for
redemption, the Corporation shall pay or cause to be paid to
the holders of Series II Convertible Preferred Stock, the
redemption price on presentation and surrender at the offices
of the Corporation in Calgary, Alberta or at any other place
or places within Canada designated by such notice, of the
certificate or certificates for such Series II Convertible
Preferred Stock. Such payment shall be made by check payable
at par at any branch in Canada of the Corporation's bankers.
From and after the date specified for redemption, the holders
of the Series II Convertible Preferred Stock, shall not, with
the exception of the conversion rights provided in Section 4,
be entitled to exercise any of the rights of shareholders in
respect thereof, unless payment of the redemption price is not
duly made by the Corporation. At any time after notice of
redemption is given, the Corporation shall have the right to
deposit the redemption price of the Series II Convertible
Preferred Stock called for redemption with any chartered bank
or banks or with any trust company or companies in Canada
named for such purpose in the notice of redemption to the
credit of a special account or accounts in trust for the
respective holders of such shares to be paid to them
respectively upon surrender to such bank or banks or trust
company or trust companies of the certificate or certificates
representing the same. Upon such deposit or deposits being
made, such shares shall be and be deemed to be redeemed and
the rights of the holders of such shares shall be limited to
the conversion right described in Section 3 and to receiving
the proportion of the amounts so deposited applicable to their
respective shares without interest. Any interest allowed on
such deposit or deposits shall accrue to the Corporation.
3.03 Subject to the provisions of Section 5 and in addition to
its right to redeem Series II Convertible Preferred Stock as
provided in this Section 3, the Corporation may at any time or
times purchase for cancellation the whole or any part of the
outstanding shares of Series II Convertible Preferred Stock by
invitation for tenders addressed to all holders of record of
the outstanding Series II Convertible Preferred Stock, at a
price per share not exceeding Cdn. $1.00 plus, in each case,
the cost of purchase. If, in response to any request for
tenders more Series II Convertible Preferred Stock are
tendered at a price or prices acceptable to the Corporation
then the Corporation is prepared to purchase, the Corporation
shall accept, to the extent required, the tenders submitted at
the lowest price and then, if and to the extent required, the
tenders submitted at the next progressively higher price, and
if more shares are tendered at any such price than the
Corporation is prepared to purchase, the shares tendered at
that price shall be purchased as nearly as possible pro rata,
disregarding fractions, according to the number of shares of
Series II Convertible Preferred Stock so tendered by each
holder thereof.
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3.04 Shares of Series II Convertible Preferred Stock which
are purchased, redeemed or deemed to be redeemed in accordance
with this Section 3, shall be and be deemed to be canceled and
shall not be reissued.
d. Conversion Privilege
4.01 For the purpose of this Section 4:
(1) "Common Stock" shall mean common shares in the
capital of the Corporation as it existed at that time
under the Business Corporations Act (Ontario), as such
shares were constituted on July 10, 1987, and any other
shares resulting from reclassification or change of such
common shares or amalgamation, consolidation, merger or
sale, all as referred to in subsection 4.07.
(2) "Current Conversion Basis" means at any particular
time the result obtained (expressed to the nearest
thousandth of a share of Common Stock by dividing Cdn.
$1.00 by the Current Market Price;
(3) "Current Market Price" shall mean as at any date
when the Current Market Price is to be determined, the
weighted average price at which the Common Stock of the
Corporation has been traded on the Alberta Stock
Exchange during the 20 consecutive trading day not
preceding such date. In the event such Common Stock is
not listed on the Alberta Stock Exchange but is listed
on another stock exchange or stock exchanges in Canada,
the foregoing references to the Alberta Stock Exchange
shall be deemed to be references to such other stock
exchange, or, if more than one, to such one as shall be
designated by the Board of Directors of the Corporation.
In the event shares of Common Stock of the Corporation
are not so traded on any stock exchange in Canada, the
Current Market Price thereof shall be determined by the
Board of Directors, which determination shall be
conclusive; and
(4) "First City Loan" means the loan made by VenTech
Healthcare International Inc. To Nu-Med Industries Ltd.
in the amount of Cdn. $600,000.
4.02 A holder of any Series II Convertible Preferred Stock
has the right, at his option, at any time after the First City
Loan and all interest accrued thereon has been repaid in full,
or in the case of shares called for redemption up to the close
of business on the business day prior to the date fixed for
redemption, whichever is earlier, to convert, subject to the
terms and provisions hereof, such Series II Convertible
Preferred Stock into fully paid and non-assessable Common
Stock on the basis of the Current Conversion Basis. Should
payment of the redemption price of Series II Convertible
Preferred Stock which have been called for redemption not be
paid upon surrender of the certificate for such Series II
Convertible Preferred Stock the right of conversion shall
revive and continue from the time of the failure to pay as if
such Series II Convertible Preferred Stock had not been called
for redemption.
4.03 The conversion of Series II Convertible Preferred Stock
may be effected by the surrender of the certificate or
certificates representing the same at any time during usual
business hours at any office of the transfer agent of the
Corporation at which the Common Stock is transferrable,
accompanied by: (1) payment or evidence of payment of the tax
(if any) payable as provided in subsection 4.11 and (2) a
written instrument of surrender in form satisfactory to the
Corporation duly executed by the registered holder, or his
attorney duly authorized in writing, in which instrument such
holder may also elect to convert part only of:
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(a) the Series II Convertible Preferred Stock
represented by such certificate or certificates not
theretofore called for redemption, in which event such
holder shall be entitled to receive, at the expense of
the Corporation, a new certificate representing the
Series II Convertible Preferred Stock represented by
such certificate or certificates which have not been
converted; and
(b) the Series II Convertible Preferred Stock,
represented by such certificate or certificates,
theretofore called for redemption, in which event on the
date specified for redemption of such Series II
Preferred Stock such holder shall be entitled to payment
of the redemption price of the Series II Convertible
Preferred Stock represented by such certificate or
certificates which have been called for redemption and
which have not been converted.
As promptly as practicable after the surrender of any
Series II Convertible Preferred Stock for conversion, the
Corporation shall cause to be delivered to or upon the written
order of the holder of the Series II Convertible Preferred
Stock so surrendered, a certificate or certificates issued in
the name of, or in such name or names as may be directed by,
such holder representing the number of shares of Common Stock
to which such holder is entitled together with a payment by
check or a scrip certificate, as the case may be, in respect
of any fraction of a Common Share issuable on such conversion
as provided in subsection 4.10. Such conversion shall be
deemed to have been made at the close of business on the date
such Series II Convertible Preferred Share shall have been
surrendered for conversion, so that the rights of the holder
of such Series II Convertible Preferred Stock as the holder
thereof shall cease at such time and the person or persons
entitled to receive Common Stock upon such conversion shall be
treated for all purposes as having become the holder or
holders of record of such Common Stock at such time and such
conversion shall be on the Current Conversion Basis as at such
time. The date of surrender of any Series II Convertible
Preferred Stock for conversion shall be deemed to be the date
when the certificate representing such Series II Convertible
Preferred Stock is received by the transfer agent of the
Corporation.
4.04 The registered holder of any share of Series II
Convertible Preferred Share on the record date for any
dividend payable on such share shall be entitled to such
dividend notwithstanding that such share is converted after
such record date and before the payment date of such dividend
and the registered holder of any share of Common Share
resulting from any conversion shall be entitled to rank
equally with the registered holders of all other Common Stock
of record on any date after the date of conversion. Subject as
aforesaid and subject to the provision hereof, upon the
conversion of any share of Series II Convertible Stock, the
Corporation shall make no payment or adjustment on account of
any dividends on the Series II Convertible Preferred Stock so
converted nor on account of any dividends on the Common Share
issuable upon such conversion.
4.05 Upon the surrender of any shares of Series II
Convertible Preferred Stock for conversion, the number of
shares of full Common Stock issuable upon conversion thereof
shall be equal to the aggregate number of such shares of
Series II Convertible Preferred Stock to be converted
multiplied by the Current Conversion Basis. Fractional shares
will not be issued on any conversion but in lieu thereof the
Corporation shall, at its option, either make cash payments or
issue scrip certificates entitling the holder thereof and of
other similar scrip certificates aggregating one full share of
Common Share, upon the surrender of such scrip certificates,
to a full share of Common Share. Such scrip certificates shall
not confer on the holders thereof any rights as a shareholder.
In any case where fractional shares are involved and the
Corporation decides to make cash payments in lieu of issuing
script certificates the payment shall be by check of an amount
equal to the then value of such fractional interest computed
on the basis of the Current Market Price for the Common Stock.
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<PAGE> 8
4.06 The issuance of certificates for Common Stock upon the
conversion of Series II Convertible Preferred Stock shall be
made without charge to the holders of the Series II
Convertible Preferred Stock so converted for any fee or tax
imposed on the Corporation in respect of the issuance of such
certificates or the Common Stock represented thereby; provided
that the Corporation shall not be required to pay any tax
which may be imposed upon the person or persons to whom such
Common Stock are issued in respect of the issuance of such
Common Stock or the certificate therefor or which may be
payable in respect of any transfer involved in the issuance
and delivery of any such certificate in a name or names other
than that of the holder of the Series II Convertible Preferred
Stock converted, and the Corporation shall not be required to
issue or deliver such certificate unless the person or persons
requesting the issuance thereof shall have paid to the
Corporation the amount of such tax or shall have established
to the satisfaction of the Corporation that such tax has been
paid.
4.07 In case of any reclassification of change (other than a
change resulting only from consolidation or subdivision) of
the Common Stock, or in case of any amalgamation,
consolidation or merger of the Corporation with or into any
other corporation, or in the case of any sale of the
properties and assets of the Corporation as, or substantially
as, an entirety to any other corporation, each share of Series
II Convertible Preferred Share shall, after such
reclassification, change, amalgamation, consolidation, merger
or sale, be convertible into the number of shares or other
securities or property of the Corporation or such continuing,
successor or purchasing corporation, as the case may be, to
which a holder of the number of shares of Common Stock as
would have been issued if such Series II Convertible Preferred
Stock had been converted immediately prior to such
reclassification, change, amalgamation, consolidation, merger
and sale would have been entitled upon such reclassification,
change, amalgamation, consolidation, merger or sale. The Board
of Directors may accept the certificate of any firm of
independent accountants (who may be the auditors of the
Corporation) as to the foregoing calculation, and the Board of
Directors may determine such entitlement on the basis of such
certificate. Any such determination shall be conclusive and
binding on the Corporation and the holders of the Series II
Convertible Preferred Stock. No such reclassification, change,
amalgamation, consolidation, merger or sale shall be carried
into effect unless, in the opinion of legal counsel to the
Corporation, all necessary steps shall have been taken to
ensure that the holders of the Series II Convertible Preferred
Stock shall thereafter be entitled to receive such number of
shares or other securities or property of the Corporation or
such continuing, successor or purchasing corporation, as the
case may be, subject to adjustment thereafter in accordance
with provisions similar, as nearly as may be, to those
contained in this Section 4.
4.08 The Corporation shall give to the holders of the Series
II Convertible Preferred Stock at least 21 days prior notice
as provided in Section 5, of the record date for the payment
of any cash dividend, stock dividend or other distribution on
its Common Stock and prompt public notice of the issue to any
of its shareholders of rights to subscribe for Common Stock or
other securities and shall give at least 30 days prior notice
as provided in Section 5 before making repayment of capital on
its Common Stock. Any such public notice shall be sufficiently
given if given in accordance with the regulations of the
Alberta Stock Exchange from time to time in force with respect
to required disclosures to the public by companies listed on
such exchange. The accidental failure or omission to give the
notice required by this subsection 4.08 or any defect therein
shall not affect the legality or validity of any such payment,
distribution or issue.
4.09 If in the opinion of the Board of Directors the
provisions of this Section 4 are not strictly applicable, or
if strictly applicable would not fairly protect the rights of
the holders of the Series II Convertible Preferred Stock in
accordance with the intent and purpose hereof, the Board of
Directors shall make any adjustment in such provisions as the
Board of Directors deems appropriate.
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<PAGE> 9
e. Notice
5.01 Any notice, except as provided in subsection 4.08 with
respect to public notice, required to be given under the
provisions attaching to the Series II Convertible Preferred
Stock to the holders thereof shall be given by posting the
same in a postage paid envelope addressed to each holder at
the last address of such holder as it appears on the books of
the Corporation or, in the event of the address of any such
holder not so appearing, then to the address of such holder
last known to the Corporation; provided that accidental
failure or omission to give any notice as aforesaid to one or
more of such holders shall not invalidate any action or
proceeding founded thereon.
4. Provisions Attaching to the Series III Convertible Preferred Stock
The second series of Preferred Stock of the Corporation shall
consist of 125,000 shares having a redemption value, of Cdn. $1.00,
shall be designated as Series III Convertible Preferred Stock and, in
addition to the rights, conditions, restrictions and limitations
attached to the Preferred Stock as a class, shall have attached thereto
rights, conditions, restrictions and limitations substantially as
hereinafter set forth, that is to say:
a. Voting Rights
1.01 The Series III Convertible Preferred Stock shall have no
voting rights as specified in the class provisions attached to
the Preferred Stock.
b. Issue Price
2.01 The redemption value, the issue price and the amount
paid up with respect to the Series III Convertible Preferred
Stock shall be Cdn. $1.00 per share.
c. Redemption
3.01 (1) On and after March 31, 1987, at its option, the
Corporation may redeem thirty-three and one-third percent (33
1/3%) of the issued and outstanding Series III Convertible
Preferred Stock, whereupon all holders of shares of Series III
Convertible Preferred Stock shall surrender for redemption
thirty-three and one-third percent (33 1/3%) of their
outstanding shares of Series III Convertible Preferred Stock
on payment by the Corporation of Cdn. $1.00 for each such
share to be redeemed.
(2) On and after March 31, 1988, at its option the
Corporation may redeem sixty-six and two-thirds percent (66
2/3%) of the number of shares of Series III Convertible
Preferred Stock originally issued and outstanding, whereupon
all holders of Series III Convertible Preferred Stock shall
surrender for redemption up to sixty-six and two-thirds
percent (66 2/3%) of the number of shares of Series III
Convertible Preferred Stock originally outstanding on payment
by the Corporation of Cdn. $1.00 for each such share to be
redeemed.
(3) On and after March 31, 1989, at its option the
Corporation may redeem all of the Series III Convertible
Preferred Stock issued and outstanding, whereupon all holders
of Series III Convertible Preferred Stock shall surrender for
redemption all of their outstanding shares of Series III
Convertible Preferred Stock on payment by the Corporation of
Cdn. $1.00 for each such share to be redeemed.
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<PAGE> 10
3.02 On the redemption of Series III Convertible Preferred
Stock under this Section 3, the Corporation shall give, in the
manner provided in Section 5, at least 30 days prior notice to
each person who, at the date of giving such notice, is the
holder of Series III Convertible Preferred Stock of the right
of the Corporation to redeem such shares. Such notice shall
set out the redemption price and confirm the date on which
redemption is to take place and such notice shall state the
then applicable Current Conversion Price (as defined in
subsection 4.01). Such notice shall also advise the holder
that the right of the holder to convert the shares so to be
redeemed will cease and terminate at the close of business on
the business day immediately prior to the date on which
redemption is to take place. On the date specified for
redemption, the Corporation shall pay or cause to be paid to
the holders of Series III Convertible Preferred Stock, the
redemption price on presentation and surrender at the offices
of the Corporation in Calgary, Alberta or at any other place
or places within Canada designated by such notice, of the
certificate or certificates for such Series III Convertible
Preferred Stock. Such payment shall be made by check payable
at par at any branch in Canada of the Corporation's bankers.
From and after the date specified for redemption, the holders
of the Series III Convertible Preferred Stock shall not, with
the exception of the conversion right provided in Section 4,
be entitled to exercise any of the rights of shareholders in
respect thereof, unless payment of the redemption price is not
duly made by the Corporation. At any time after notice of
redemption is given, the Corporation shall have the right to
deposit the redemption price of the Series III Convertible
Preferred Stock called for redemption with any chartered bank
or banks or with any trust company or companies in Canada
named for such purpose in the notice of redemption to the
credit of a special account or accounts in trust for the
respective holders of such shares, to be paid to them
respectively upon surrender to such bank or banks or trust
company or trust companies of the certificate or certificates
representing the same. Upon such deposit or deposits being
made, such shares shall be and be deemed to be redeemed and
the rights of the holders of such shares shall be limited to
the conversion right described in Section 4 and to receiving
the proportion of the amounts so deposited applicable to their
respective shares without interest. Any interest allowed on
such deposit or deposits shall accrue to the Corporation.
3.03 Subject to the provisions of Section 5 and in addition
to its rights to redeem Series III Convertible Preferred Stock
as provided in this Section 3, the Corporation may at any time
or times purchase for cancellation the whole or any part of
the outstanding shares of Series III Convertible Preferred
Stock by invitation for tenders addressed to all holders of
record of the outstanding Series Convertible Preferred Stock,
at a price per share not exceeding Cdn. $1.00 plus, in each
case, the cost of purchase. If, in response to any request for
tenders more Series III Convertible Preferred Stock are
tendered at a price or prices acceptable to the Corporation
than the Corporation is prepared to purchase, the Corporation
shall accept, to the extent required, the tenders submitted at
the lowest price and then, if and to the extent required, the
tenders submitted at the next progressively higher price, and
if more shares are tendered at any such price than the
Corporation is prepared to purchase, the shares tendered at
that price shall be purchased as nearly as possible pro rata,
disregarding fractions, according to the number of shares of
Series III Convertible Preferred Stock so tendered by each
holder thereof.
3.04 Series III Convertible Preferred Stock which are
purchased, redeemed or deemed to be redeemed in accordance
with this Section 3 shall be and be deemed to be canceled and
shall not be reissued.
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<PAGE> 11
a. Conversion Privilege
4.01 For the purpose of this Section 4:
(1) "Common Stock" shall mean common shares in the
capital of the Corporation as it existed at that time
under the Business Corporations Act (Ontario) as such
shares were constituted on July 10, 1987, and any other
shares resulting from reclassification or change of such
Common Stock of amalgamation, consolidation, merger or
sale, all as referred to in subsection 4.07;
(2) "Current Conversion Price" means at any particular
time the result obtained (expressed to the nearest
thousandth of a share of Common Stock) by dividing Cdn.
$1.00 by the Current Market Price; and
(3) "Current Market Price" shall mean as at any date
when the Current Market Price is to be determined, the
weighted average price at which the Common Stock of the
Corporation has been traded on the Alberta stock
Exchange during the 20 consecutive trading days ending
on a date not earlier than the fifth trading day
preceding such date. In the event such Common Stock is
not listed on the Alberta Stock Exchange but is listed
on another stock exchange or stock exchanges in Canada
the foregoing references to the Alberta Stock Exchange
shall be deemed to be references to such other stock
exchange, or, of more than one, to such one as shall be
designated by the Board of Directors of the Corporation.
In the event Common Stock of the Corporation is not so
traded on any stock exchange in Canada, the Current
Market Price thereof shall be determined by the Board of
Directors, which determination shall be conclusive.
4.02 A holder of any Series III Convertible Preferred Stock
has the right, at his option, at any time up to the close of
business on each of November 1, 1987, November 1, 1988 and
November 1, 1989, to convert thirty-three and one-third
percent (33 1/3%) of the number of shares of Series III
Convertible Preferred Stock originally issued and outstanding
to such holder, or in the case of shares called for redemption
up to the close of business on the business day prior to the
date fixed for redemption, which ever is earlier, subject to
the terms and provisions hereof, such Series III Convertible
Preferred Stock into fully paid and non-assessable Common
Stock on the basis of the current Conversion Basis. Should
payment of the redemption price of Series III Convertible
Preferred Stock which have been called for redemption not be
paid upon surrender of the certificate for such Series III
Convertible Preferred Stock the right of conversion shall
revive and continue from the time of the failure to pay as if
such Series III Convertible Preferred Stock had not been
called for redemption.
4.03 The conversion of Series III Convertible Preferred Stock
may be effected by the surrender of the certificate or
certificates representing the same at any time during usual
business hours at any office of the transfer agent of the
Corporation at which the Common Stock is transferable,
accompanied by: (1) payment or evidence of payment of the tax
(if any) payable as provided in subsection 4.11 and (2) or
written instrument of surrender in form satisfactory to the
Corporation duly executed by the registered holder, or his
attorney duly authorized in writing, in which instrument such
holder may also elect to convert part only of:
(a) the Series III Convertible Preferred Stock
represented by such certificate or certificates not
theretofore called for redemption, in which event such
holder shall be entitled to receive, at the expense of
the Corporation, a new certificate representing the
Series II
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<PAGE> 12
Convertible Preferred Stock represented by such
certificate or certificates which have not been
converted; and
(b) The Series III Convertible Preferred Stock,
represented by such certificate or certificates,
theretofore called for redemption, in which event on the
date specified for the redemption of such Series III
Convertible Preferred Stock such holder shall be
entitled to payment of the redemption price of the
Series III Convertible Preferred Stock represented by
such certificate or certificates which have been called
for redemption and which have not been converted.
As promptly as practicable after the surrender of any
Series III Convertible Preferred Stock for conversion, the
Corporation shall cause to be delivered to or upon the written
order of the holder of the Series III Convertible Preferred
Stock so surrendered, a certificate or certificates issued in
the name of, or in such name or names as may be directed by,
such holder representing the number of shares of Common Stock
to which such holder is entitled together with payment by
check or a scrip certificate, as the case may be, in respect
of any fraction of a Common Share issuable on such conversion
as provided in subsection 4.10. Such conversion shall be
deemed to have been made at the close of business on the date
such Series III Convertible Preferred Stock shall have been
surrendered for conversion, so that the rights of the holder
of such Series III Convertible Preferred Stock as the holder
thereof shall cease at such time and the person or persons
entitled to receive Common Stock upon such conversion shall be
treated for all purposes as having become the holder or
holders of record of such Common Stock at such time and such
conversion shall be on the Current Conversion Basis as at such
time. The date of surrender of any Series II Convertible
Preferred Stock for conversion shall be deemed to be the date
when the certificate representing such Series III Convertible
Preferred Stock is received by the transfer agent of the
Corporation.
4.04 The registered holder of any share of Series III
Convertible Preferred Share on the record date for any
dividend payable on such share shall be entitled to such
dividend notwithstanding that such share is converted after
such record date and before the payment date of such dividend
and the registered holder of any share of Common Share
resulting from any conversion shall be entitled to rank
equally with the registered holders of all other share of
Common Stock in respect of all dividends declared payable to
holders of all other Common Stock of record on any date after
the date of conversion. Subject as aforesaid and subject to
the provisions hereof, upon the conversion of any shares of
Series III Convertible Preferred Stock the corporation shall
make no payment or adjustment on account of any dividends on
the Series III Convertible Preferred Stock so converted nor on
account of any dividends on the Common Stock issuable upon
such conversion.
4.05 Upon the surrender of any shares of Series III
Convertible Preferred Stock for conversion, the number of
shares of full Common Stock issuable upon conversion thereof
shall be equal to the aggregate number of shares of such
Series III Convertible Preferred Stock to be converted
multiplied by the Current Conversion Basis. Fractional shares
will not be issued on any conversion but in lieu thereof the
Corporation shall, at its option, either make cash payments or
issue scrip certificates entitling the holder thereof and of
other similar scrip certificates aggregating one full share of
Common Share, upon the surrender of such scrip certificates,
to a full share of Common Share. Such script certificates
shall not confer on the holders thereof any rights as a
shareholder. In any case where fractional shares are involved
and the Corporation decides to make cash payments in lieu of
issuing scrip certificates the payment shall be by check of
any amount equal to the then value of such fractional interest
computed on the basis of the Current Market Price for the
Common Stock.
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<PAGE> 13
4.06 The issuance of certificates for Common Stock upon the
conversion of Series III Convertible Preferred Stock shall be
made without charge to the holders of the Series III
Convertible Preferred Stock so converted for any fee or tax
imposed on the Corporation in respect of the issuance of such
certificates or the Common Stock represented thereby; provided
that the Corporation shall not be required to pay any tax
which may be imposed upon the person or persons to whom such
Common Stock are issued in respect of the issuance of such
Common Stock or the certificate therefor or which may be
payable in Shares or the certificate therefor or which may be
payable in respect of any transfer involved in the issuance
and delivery of any such certificate in a name or names other
than that of the holder of the Series III Convertible
Preferred Stock converted, and the Corporation shall not be
required to issue o deliver such certificate unless the person
or persons requesting the issuance thereof shall have paid to
the Corporation the amount of such tax or shall have
established to the satisfaction of the Corporation that such
tax has been paid.
4.07 In case of any reclassification or change (other than a
change resulting only from consolidation or subdivision) of
the Common Stock, or in case of any amalgamation,
consolidation ro merger of the Corporation with or into any
other corporation, or in the case of any sale of the
properties and assets of the Corporation as, or substantially
as, an entirety to any other corporation, each share of Series
III Convertible Preferred Share shall, after such
reclassification, change, amalgamation, consolidation, merger
or sale, be convertible into the number of shares or other
securities or property of the Corporation or such continuing,
successor or purchasing corporation, as the case may be, to
which a holder of the number of shares of Common Stock as
would have been issued if such Series III Convertible
Preferred Stock had been converted immediately prior to such
reclassification, change, amalgamation, consolidation, merger
or sale would have been entitled upon such reclassification,
change, amalgamation, consolidation, merger or sale. The Board
of Directors may accept the certificate of any firm of
independent accountants (who my be the auditors of the
Corporation) as to the foregoing calculation, and the Board of
Directors may determine such entitlement on the basis of such
certificate. Any such determination shall be conclusive and
binding on the Corporation and the holders of the Series III
Convertible Preferred Stock. No such reclassification, change,
amalgamation, consolidation, merger or sale shall be carried
into effect unless, in the opinion of legal counsel to the
Corporation, all necessary steps shall have been taken to
ensure that the holders of the Series III Convertible
Preferred Stock or other securities or property of the
Corporation or such continuing, successor or purchasing
corporation, as the case may be, subject to adjustment
thereafter in accordance with provisions similar, as nearly as
may be, to those contained in this Section 4.
4.08 The Corporation shall give to the holders of the Series
III Convertible Preferred Stock at least 21 days prior notice
as provided in Section 5, of the record date for the payment
of any cash dividend, stock dividend, or other distribution on
its Common Stock and prompt public notice of the issue to any
of its shareholders of rights to subscribe for Common Stock or
other securities and shall give at least 30 days prior notice
as provided in Section 5, before making any repayment of
capital on its Common Stock. Any such public notice shall be
sufficiently given if given in accordance with the regulations
of the Alberta Stock Exchange from time to time in force with
respect to required disclosures to the public by companies
listed on such exchange. The accidental failure or omission to
give the notice required by this subsection 4.08 or any defect
therein shall not affect the legality or validity of any such
payment, distribution or issue.
4.09 If in the opinion of the board of Directors the
provisions of this Section 4 are not strictly applicable, or
if strictly applicable would not fairly protect the rights of
the holders of the Series III convertible Preferred Stock in
accordance with the intent and purposes hereof, the Board of
Directors shall make any adjustment in such provisions as the
Board of Directors deems appropriate.
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<PAGE> 14
b. Notices
5.01 Any notice, except as provided in subsection 4.08 with
respect to public notice, required to be given under the
provisions attaching to the Series III Convertible Preferred
Stock to the holders thereof shall be given by posting the
same in a postage paid envelope addressed to each holder at
the last address of such holder as it appears on the books of
the Corporation or, in the event of the address of any such
holder not so appearing, then to the address of such holder
last known to the Corporation; provided that accidental
failure or omission to give any notice as aforesaid to one or
more of such holders shall not invalidate any action or
proceeding founded thereon.
14
<PAGE> 1
Exhibit 3.3
BY-LAWS
OF
PLD TELEKOM INC.
(a Delaware Corporation)
ARTICLE I
Offices, Fiscal Year and Record
SECTION 1.01. Registered Office. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware until otherwise established by resolution of the Board of Directors,
and a certificate certifying the change is filed in the manner provided by
statute.
SECTION 1.02. Other Offices. The Corporation may also have offices at
such other places within or without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation
requires.
SECTION 1.03. Fiscal Year. Until changed by the Board of Directors, the
fiscal year of the Corporation shall end on the 31st of December in each year.
SECTION 1.04. Books and Records. The books and records of the
Corporation may be kept outside the State of Delaware at such place or places as
may from time to time be designated by the Board of Directors. The stockholders
and directors of the Corporation shall have examination rights as specified in
Section 7.06 of these By-Laws.
ARTICLE II
Stockholders
SECTION 2.01. Place of Meeting. The Board of Directors or the Chairman
of the Board, as the case may be, may designate the place of meeting for any
annual meeting or for any special meeting of the stockholders called by the
Board of Directors, the President or the Chairman of the Board. If no
designation is so made, the place of meeting shall be the principal office of
the Corporation.
SECTION 2.02. Annual Meeting. The Board of Directors shall fix and
designate the date and time of the annual meeting of the stockholders. At said
meeting, the stockholders then entitled to vote shall elect directors and shall
transact such other business as may properly be brought before the meeting.
SECTION 2.03. Special Meetings. Subject to the rights of the holders of
any series of stock having a preference over the Common Stock of the Corporation
as to dividends or upon liquidation ("Preferred Stock") with respect to such
series of Preferred Stock, special meetings of the stockholders may be called
only by the Chairman of the Board, the President or by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of directors
then in office.
1
<PAGE> 2
SECTION 2.04. Notice of Meeting. Written or printed notice, stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered by the Corporation not less than ten (10)
days nor more than sixty (60) days before the date of the meeting, either
personally or by mail, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail with postage thereon prepaid, addressed to the
stockholder at his address as it appears on the stock transfer books of the
Corporation. Such further notice shall be given as may be required by law. Only
such business shall be conducted at a special meeting of stockholders as shall
have been brought before the meeting pursuant to the Corporation's notice of
meeting. Meetings may be held without notice if all stockholders entitled to
vote are present, or if notice is waived by those not present in accordance with
Section 7.01 of these By-Laws. Any previously scheduled meeting of the
stockholders may be postponed, and (unless the Certificate of Incorporation
otherwise provides) any special meeting of the stockholders may be canceled, by
resolution of a majority of the total number of directors then in office upon
public notice given prior to the date previously scheduled for such meeting of
stockholders.
SECTION 2.05. Quorum, Manner of Acting and Adjournment.
(a) Quorum. The holders of a majority of the shares entitled to vote,
present in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders except as otherwise provided by the Delaware
General Corporation Law ("DGCL"), by the Certificate of Incorporation or by
these By-Laws. If a quorum is not present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum is present
or represented. At any such adjourned meeting at which a quorum is present or
represented, the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
(b) Manner of Acting. Directors shall be elected by a plurality of the
votes of the shares present in person or represented by proxy at the meeting and
entitled to vote on the election of directors. In all matters other than the
election of directors, the affirmative vote of the majority of shares present in
person or represented by proxy at the meeting and entitled to vote thereon shall
be the act of the stockholders, unless the question is one upon which, by
express provision of the applicable statute, the Certificate of Incorporation or
these By-Laws, a different vote is required in which case such express provision
shall govern and control the decision of the question. The stockholders present
in person or by proxy at a duly organized meeting can continue to do business
until adjournment, notwithstanding withdrawal of enough stockholders to leave
less than a quorum.
SECTION 2.06. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders (i) pursuant
to the Corporation's notice of meeting, (ii) by or at the direction of the Board
of Directors or (iii) by any stockholder of the Corporation who was a
stockholder of record at the time of giving of notice provided for in this
Section , who is entitled to vote at the meeting and who complies with the
notice procedures set forth in this Section .
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (iii) of
paragraph (a)(1) of this Section , the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a
2
<PAGE> 3
proper matter for stockholder action. To be timely, a stockholder's notice shall
be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the sixtieth (60th) day nor
earlier than the close of business on the ninetieth (90th) day prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is more than thirty (30)
days before or more than sixty (60) days after such anniversary date, notice by
the stockholder to be timely must be so delivered not earlier than the close of
business on the ninetieth (90th) day prior to such annual meeting and not later
than the close of business on the later of the sixtieth (60th) day prior to such
annual meeting or the l0th day following the day on which public announcement of
the date of such meeting is first made by the Corporation. In no event shall the
public announcement of an adjournment of an annual meeting commence a new time
period for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth (i) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); (ii) as to any other
business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; (iii) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(A) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (B) the class or series
and number of shares of the Corporation which are owned of record and
beneficially by such stockholder and such beneficial owner; and (iv) a
description of all arrangements or understandings among 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.
(3) Notwithstanding anything in the second sentence of
paragraph (a)(2) of this Section to the contrary, in the event that the number
of directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement by the Corporation naming all of
the nominees for director or specifying the size of the increased Board of
Directors at least seventy (70) days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this Section
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary at
the principal executive offices of the Corporation not later than the close of
business on the tenth (l0th) day following the day on which such public
announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business
shall be conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation's notice of meeting.
Nominations of persons for election to the Board of Directors may be made at a
special meeting of stockholders at which directors are to be elected pursuant to
the Corporation's notice of meeting (1) by or at the direction of the Board of
Directors or (2) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section , who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section . In the event
the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (a)(2) of this Section shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the ninetieth (90th) day prior to such
special meeting and not later than the close of business on the later of the
sixtieth (60th) day prior to such special meeting or the tenth (10th) day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no
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event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
(c) General.
(1) Only such persons who are nominated in accordance
with the procedures set forth in this Section shall be eligible to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section . Except as otherwise provided by law, the Certificate
of Incorporation or these By-Laws, the Chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Section and, if any proposed
nomination or business is not in compliance with this Section , to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this Section , "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this
Section , a stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section . Nothing in this Section shall be deemed to
affect any rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect directors under
specified circumstances.
SECTION 2.07. Organization. At every meeting of the stockholders, the
Chairman of the Board, if there be one, or in the case of a vacancy in the
office or absence of the Chairman of the Board, one of the following persons
present in the order stated: the Vice Chairman, if one has been appointed, the
President, the Vice Presidents in their order of rank or seniority, a Chairman
designated by the Board of Directors or a Chairman chosen by the stockholders
entitled to cast a majority of the votes which all stockholders present in
person or by proxy are entitled to cast, shall act as Chairman, and the
Secretary, or, in the absence of the Secretary, an Assistant Secretary, or in
the absence of the Secretary and the Assistant Secretaries, a person appointed
by the Chairman, shall act as Secretary.
SECTION 2.08. Voting.
(a) General Rule. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall be entitled to one vote, in person or by
proxy, for each share of capital stock having voting power held by such
stockholder.
(b) Voting and Other Action by Proxy.
(1) A stockholder may execute a writing authorizing another
person or persons to act for the stockholder as proxy. Such execution
may be accomplished by the stockholder or the authorized officer,
director, employee or agent of the stockholder signing such writing or
causing his signature to be affixed to such writing by any reasonable
means including, but not limited to, by facsimile signature. A
stockholder may authorize another person or persons to act for the
stockholder as proxy by transmitting or authorizing the transmission of
a telegram, cablegram, or other means of electronic transmission to the
person who will be the holder of the proxy or to a proxy solicitation
firm, proxy support service organization or like agent duly authorized
by the person who will be the holder of the proxy to receive
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such transmission if such telegram, cablegram or other means of
electronic transmission sets forth or is submitted with information
from which it can be determined that the telegram, cablegram or other
electronic transmission was authorized by the stockholder.
(2) No proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period.
(3) A duly executed proxy shall be irrevocable if it states
that it is irrevocable and if, and only so long as, it is coupled with
an interest sufficient in law to support an irrevocable power. A proxy
may be made irrevocable regardless of whether the interest with which
it is coupled is an interest in the stock itself or an interest in the
Corporation generally.
SECTION 2.09. Procedure for Election of Directors; Required Vote.
Election of directors at all meetings of the stockholders at which directors are
to be elected shall be by ballot, and, subject to the rights of the holders of
any series of Preferred Stock to elect directors under specified circumstances,
a plurality of the votes cast thereat shall elect directors. Except as otherwise
provided by law, the Certificate of Incorporation or these By-Laws, in all
matters other than the election of directors, the affirmative vote of a majority
of the shares present in person or represented by proxy at the meeting and
entitled to vote on the matter shall be the act of the stockholders.
SECTION 2.10. Inspectors of Elections
(a) Appointment. The Board of Directors by resolution shall appoint one
or more inspectors, which inspector or inspectors may include individuals who
serve the Corporation in other capacities, including, without limitation, as
officers, employees, agents or representatives, to act at the meetings of
stockholders and make a written report thereof. One or more persons may be
designated as alternate inspectors to replace any inspector who fails to act. If
no inspector or alternate has been appointed to act or is able to act at a
meeting of stockholders, the Chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before discharging his or her
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. The inspectors shall have the duties prescribed by law.
(b) Polls. The date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at a meeting shall
be announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Court of Chancery upon application by a
stockholder shall determine otherwise.
SECTION 2.11. Consent of Stockholders in Lieu of Meeting. Any action
required to be taken at any annual or special meeting of stockholders of the
Corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and shall be delivered to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Every written consent shall bear the date
of signature of each stockholder who signs the consent and no written consent
shall be effective to take the corporate action referred to therein unless,
within sixty (60) days of the earliest dated consent delivered in the manner
required in this section to the Corporation, written consents signed by a
sufficient number of holders to take action are delivered to the Corporation by
delivery to its registered office in Delaware, its principal place of business,
or an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to a
Corporation's registered office shall be
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by hand or by certified or registered mail, return receipt requested. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
SECTION 2.12. Voting Lists. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten (10) days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting. The list shall be arranged in alphabetical order, 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 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.
ARTICLE III
Board of Directors
SECTION 3.01. Powers. The business and affairs of the Corporation shall
be managed under the direction of the Board of Directors. In addition to the
powers and authorities by these By-Laws expressly conferred upon it, the Board
of Directors may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these By-Laws required to be exercised or done by the
stockholders.
SECTION 3.02. Number and Term of Office. The Board of Directors shall
consist of such number of directors, not less than one nor more than fifteen, as
may be determined from time to time by resolution of the Board of Directors.
Each director shall hold office until the expiration of the term for which he
was selected and until a successor shall have been elected and qualified or
until his earlier death, resignation or removal. Directors need not be residents
of Delaware or stockholders of the Corporation.
SECTION 3.03. Vacancies. Vacancies, and newly created directorships
resulting from any increase in the authorized number of directors, may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director, and the directors so chosen shall hold office until
their successors are elected and qualified or until their earlier death,
resignation or removal. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. Whenever the holders of
any class or classes of stock or series thereof are entitled to elect one or
more directors by the provisions of the Certificate of Incorporation, vacancies
and newly created directorships of such class or classes or series may be filled
by a majority of the directors elected by such class or classes or series
thereof then in office, or by a sole remaining director so elected. If, at the
time of filling any vacancy or any newly created directorship, the directors
then in office shall constitute less than a majority of the whole board (as
constituted immediately prior to any such increase), the Court of Chancery may,
upon application of any stockholder or stockholders holding at least ten (10)
percent of the total number of the shares at the time outstanding having the
right to vote for such directors, summarily order an election to be held to fill
any such vacancies or newly created directorships, or to replace the directors
chosen by the directors then in office.
SECTION 3.04. Organization. At every meeting of the Board of Directors,
the Chairman of the Board, if there be one, or, in the case of a vacancy in the
office or absence of the Chairman of the Board, one of the following officers
present in the order stated: the Vice Chairman of the Board, if there be one,
the President, the Vice Presidents in their order of rank and seniority, or a
chairman chosen by a majority of the directors present, shall
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preside, and the Secretary, or, in the absence of the Secretary, an Assistant
Secretary, or in the absence of the Secretary and the Assistant Secretaries, any
person appointed by the Chairman of the meeting, shall act as Secretary.
SECTION 3.05. Place of Meeting. Meetings of the Board of Directors
shall be held at such place within or without the State of Delaware as the Board
of Directors may from time to time determine, or as may be designated in the
notice of the meeting.
SECTION 3.06. Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this Section immediately
after, and at the same place as, the annual meeting of stockholders, or at such
other place or time as the Board of Directors may determine by resolution and
without other notice than such resolution. The Board of Directors may, by
resolution, provide the time and place for the holding of additional regular
meetings without other notice than such resolution.
SECTION 3.07. Special Meetings. Special meetings of the Board of
Directors shall be called at the request of the Chairman of the Board, the
President or a majority of the Board of Directors then in office. The person or
persons authorized to call special meetings of the Board of Directors may fix
the place and time of the meetings.
SECTION 3.08. Notice. Notice of any special meeting of directors shall
be given to each director at his business or residence in writing by first-class
or overnight mail or courier service, telegram or facsimile transmission, orally
by telephone or by hand delivery. If mailed by first class mail, such notice
shall be deemed adequately delivered when deposited in the United States mails
so addressed, with postage thereon prepaid, at least five (5) days before such
meeting. If by telegram, overnight mail or courier service, such notice shall be
deemed adequately delivered when the telegram is delivered to the telegraph
company or the notice is delivered to the overnight mail or courier service
company at least twenty-four (24) hours before such meeting. If by facsimile
transmission, such notice shall be deemed adequately delivered when the notice
is transmitted at least twelve (12) hours prior to the time set for the meeting.
If by telephone or by hand delivery, the notice shall be given at least twelve
(12) hours prior to the time set for the meeting. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in the notice of such meeting, except for
amendments to these By-Laws, as provided under Section 7.09. A meeting may be
held at any time without notice if all the directors are present or if those not
present waive notice of the meeting in accordance with Section 7.01 of these
By-Laws.
SECTION 3.09. Conference Telephone Meetings. Members of the Board of
Directors, or any committee thereof, 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 such participation in a meeting shall
constitute presence in person at such meeting.
SECTION 3.10. Quorum, Manner of Acting and Adjournment.
(a) General Rule. At all meetings of the Board two-fifths (2/5s) of the
total number of directors shall constitute a quorum for the transaction of
business. The vote 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, except as
may be otherwise specifically provided by the DGCL or by the Certificate of
Incorporation. If a quorum is not present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum is
present. If the Corporation has fewer than three directors, all the directors
shall be present to constitute a quorum.
(b) Unanimous Written Consent. Unless otherwise restricted by the
Certificate of Incorporation, any action required or permitted to be taken at
any meeting of the Board of Directors may be taken without a meeting,
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if all members of the Board consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board.
SECTION 3.11. Executive and Other Committees.
(a) Establishment. The Board of Directors may, by resolution adopted by
a majority of the whole board, establish an Executive Committee and one or more
other committees, each committee to consist of one or more directors. 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 and the alternate
or alternates, if any, designated for such member, the member or members of the
committee present at any meeting and not disqualified from voting, whether or
not they constitute a quorum, may unanimously appoint another director to act at
the meeting in the place of any such absent or disqualified member.
(b) Powers. The Executive Committee, if established, and any such other
committee to the extent provided in the resolution establishing such committee
shall have and may exercise all the power 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 (except that a committee may, to
the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the board of directors as provided in
Section 151(a) of the DGCL, fix the designation and any of the preferences or
rights of such shares relating to dividends, redemption, dissolution, any
distribution of assets of the Corporation or the conversion into, or the
exchange of such shares for, shares of any other class or classes or any other
series of the same or any other class or classes of stock of the Corporation or
fix the number of shares of any series of stock or authorize the increase or
decrease of shares of any series), adopting an agreement of merger or
consolidation under Section 251 or 252 of the DGCL, 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. The Executive Committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock and to adopt
a certificate of ownership and merger pursuant to Section 253 of the DGCL. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors. Each committee so
formed shall keep regular minutes of its meetings and report the same to the
Board of Directors when required.
(c) Committee Procedures. The term "Board of Directors" or "Board,"
when used in any provision of these By-Laws relating to the organization or
procedures of or the manner of taking action by the Board of Directors, shall be
construed to include and refer to the Executive Committee or other committee of
the Board.
SECTION 3.12. Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation, the board of directors shall have the
authority to fix the compensation of directors.
ARTICLE IV
Officers
SECTION 4.01. Number, Qualifications and Designation. The officers of
the Corporation shall be chosen by the Board of Directors and shall be a
President, one or more Vice Presidents, a Secretary, a Treasurer, and such other
officers as may be elected in accordance with the provisions of Section 4.02 of
this Article. Any number of offices may be held by the same person. Except as
otherwise set forth herein, officers may, but need not, be directors or
stockholders of the Corporation. The Board of Directors may elect from among the
members of the Board a Chairman of the Board and a Vice Chairman of the Board
who may be officers of the Corporation if so designated by the Board. The
Chairman of the Board or the President, as designated from time to time by the
Board
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of Directors, shall be the chief executive officer of the Corporation. All
officers elected by the Board of Directors shall each have such powers and
duties as generally pertain to their respective offices, subject to the specific
provisions of this Article IV. Such officers shall also have such powers and
duties as from time to time may be conferred by the Board of Directors or by any
committee thereof.
SECTION 4.02. Election and Term of Office. The officers of the
Corporation, except those elected by delegated authority pursuant to Section
4.03 of these By-Laws, shall be elected annually by the board of directors, and
each such officer shall hold office for a term of one year and until a successor
is elected and qualified, or until his or her earlier resignation or removal.
Any officer may resign at any time upon written notice to the Corporation.
SECTION 4.03. Subordinate Officers, Committees and Agents. The Board of
Directors may from time to time elect such other officers and appoint such
committees, employees or other agents as it deems necessary, who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as are provided in these By-Laws, or as the Board of Directors may from
time to time determine. The Board of Directors may delegate to any officer or
committee the power to elect subordinate officers and to retain or appoint
employees or other agents, or committees thereof, and to prescribe the authority
and duties of such subordinate officers, committees, employees or other agents.
SECTION 4.04. Removal. Any officer elected, or agent appointed, by the
Board of Directors may be removed by the affirmative vote of a majority of the
total number of directors then in office whenever, in their judgment, the best
interests of the Corporation would be served thereby. Any officer or agent
appointed by another officer by delegated authority pursuant to Section 4.03 may
be removed by him whenever, in his judgment, the best interests of the
Corporation would be served thereby. No elected officer shall have any
contractual rights against the Corporation for compensation by virtue of such
election beyond the date of the election of his successor, his death, his
resignation or his removal, whichever event shall first occur, except as
otherwise provided in an employment contract or under an employee deferred
compensation plan.
SECTION 4.05. Vacancies. A newly created elected office and a vacancy
in any elected office because of death, resignation, or removal may be filled by
the Board of Directors for the unexpired portion of the term at any meeting of
the Board of Directors. Any vacancy in an office appointed by another officer by
delegated authority pursuant to Section 4.03 because of death, resignation, or
removal may be filled by such other officer.
SECTION 4.06. The Chairman and Vice Chairman of the Board. The Chairman
of the Board, if there be one, or in the absence of the Chairman, the Vice
Chairman of the Board, if there be one, shall preside at all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may from time to time be assigned to them by the Board of Directors. To be
eligible to serve, the Chairman of the Board and the Vice Chairman must be
directors of the Corporation.
SECTION 4.07. The President. The President shall have general
supervision over the business and operations of the Corporation, subject,
however, to the control of the board of directors. The President shall, in
general, perform all duties incident to the office of President, and such other
duties as from time to time may be assigned by the Board of Directors and, if
the Chairman of the Board is the Chief Executive Officer, the Chairman of the
Board.
SECTION 4.08. The Vice Presidents. The Vice Presidents shall perform
the duties of the president in the absence of the President and such other
duties as may from time to time be assigned to them by the Board of Directors or
by the President.
SECTION 4.09. The Secretary. The Secretary, or an Assistant Secretary,
shall attend all meetings of the stockholders and of the Board of Directors and
shall record the proceedings of the stockholders and of the directors
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and of committees of the board in a book or books to be kept for that purpose;
shall see that notices are given and records and reports properly kept and filed
by the Corporation as required by law; shall be the custodian of the seal of the
Corporation and see that it is affixed to all documents to be executed on behalf
of the Corporation under its seal; and, in general, shall perform all duties
incident to the office of Secretary, and such other duties as may from time to
time be assigned by the Board of Directors or the President.
SECTION 4.10. The Treasurer. The Treasurer, or an Assistant Treasurer,
shall have or provide for the custody of the funds or other property of the
Corporation; shall collect and receive or provide for the collection and receipt
of moneys earned by or in any manner due to or received by the Corporation;
shall deposit all funds in his or her custody as Treasurer in such banks or
other places of deposit as the Board of Directors may from time to time
designate; whenever so required by the Board of Directors, shall render an
account showing his or her transactions as treasurer and the financial condition
of the Corporation; and, in general, shall discharge such other duties as may
from time to time be assigned by the Board of Directors or the President.
SECTION 4.11. Officers' Bonds. No officer of the Corporation need
provide a bond to guarantee the faithful discharge of the officer's duties
unless the Board of Directors shall by resolution so require a bond in which
event such officer shall give the Corporation a bond (which shall be renewed if
and as required) in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of office.
SECTION 4.12. Salaries. The salaries of the officers and agents of the
Corporation elected by the Board of Directors shall be fixed from time to time
by the Board of Directors.
ARTICLE V
Certificates of Stock, Transfer, Etc.
SECTION 5.01. Form and Issuance.
(a) Issuance. The shares of the Corporation shall be represented by
certificates unless the Board of Directors shall by resolution provide that some
or all of any class or series of stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until the
certificate is surrendered to the Corporation. Notwithstanding the adoption of
any resolution providing for uncertificated shares, every holder of stock
represented by certificates and upon request every holder of uncertificated
shares shall be entitled to have a certificate signed by, or in the name of the
Corporation by, the Chairman or Vice Chairman of the Board of Directors, or the
President or Vice President, and by the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary, representing the number of shares
registered in certificate form.
(b) Form and Records. Stock certificates of the Corporation shall be in
such form as approved by the Board of Directors. The stock record books and the
blank stock certificate books shall be kept by the Secretary or by any agency
designated by the Board of Directors for that purpose. The stock certificates of
the Corporation shall be numbered and registered in the stock ledger and
transfer books of the Corporation as they are issued.
(c) Signatures. Any of or all the signatures upon the stock
certificates of the Corporation may be a facsimile. In case any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon, any share certificate shall have ceased to be such officer,
transfer agent or registrar, before the certificate is issued, it may be issued
with the same effect as if the signatory were such officer, transfer agent or
registrar at the date of its issue.
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SECTION 5.02. Transfer. Transfers of shares shall be made on the share
register or transfer books of the Corporation upon surrender of the certificate
therefor, endorsed by the person named in the certificate or by an attorney
lawfully constituted in writing. No transfer shall be made which would be
inconsistent with the provisions of Article 8, Title 6 of the Delaware Uniform
Commercial Code-Investment Securities.
SECTION 5.03. Lost, Stolen, Destroyed or Mutilated Certificates. The
Board of Directors may direct a new certificate of stock or uncertificated
shares to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or the legal representative of the owner,
to give the Corporation a bond sufficient to indemnify against any claim that
may be made against the Corporation on account of the alleged loss, theft or
destruction of such certificate or the issuance of such new certificate or
uncertificated shares.
SECTION 5.04. Record Holder of Shares. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
SECTION 5.05. Determination of Stockholders of Record.
(a) Meetings of Stockholders. 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, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which record
date shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting. If no record date is fixed by the board of directors, 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 next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. 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
unless the board of directors fixes a new record date for the adjourned meeting.
(b) Consent of Stockholders. In order that the Corporation may
determine the stockholders entitled to consent to corporate action in writing
without a meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which date shall not be more than ten
(10) days after the date upon which the resolution fixing the record date is
adopted by the Board of Directors. If no record date has been fixed by the Board
of Directors, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting, when no prior action by the
Board of Directors is required by the DGCL, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to a Corporation's registered office shall be by hand or
by certified or registered mail, return receipt requested. If no record date has
been fixed by the Board of Directors and prior action by the Board of Directors
is required by the DGCL, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting shall be at the
close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
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(c) Dividends. In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights of the stockholders 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 a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty (60)
days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto.
ARTICLE VI
Indemnification of Directors, Officers and
Other Authorized Representatives
SECTION 6.01. Indemnification of Authorized Representatives in Third
Party Proceedings. The Corporation shall indemnify any person who was or is an
authorized representative of the Corporation, and who was or is a party, or is
threatened to be made a party to any third party proceeding, by reason of the
fact that such person was or is an authorized representative of the Corporation,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such third party
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, the best interests of the
Corporation and, with respect to any criminal third party proceeding, had no
reasonable cause to believe such conduct was unlawful. The termination of any
third party proceeding by judgment, order, settlement, conviction or upon a plea
of nolo contendere or its equivalent, shall not of itself create a presumption
that the authorized representative did not act in good faith and in a manner
which such person reasonably believed to be in or not opposed to, the best
interests of the Corporation, and, with respect to any criminal third party
proceeding, had reasonable cause to believe that such conduct was unlawful.
SECTION 6.02. Indemnification of Authorized Representatives in
Corporate Proceedings. The Corporation shall indemnify any person who was or is
an authorized representative of the Corporation and who was or is a party or is
threatened to be made a party to any corporate proceeding, by reason of the fact
that such person was or is an authorized representative of the Corporation,
against expenses actually and reasonably incurred by such person in connection
with the defense or settlement of such corporate proceeding if such person acted
in good faith and in a manner reasonably believed to be in, or not opposed to,
the best interests of the Corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only to the extent
that the Court of Chancery or the court in which such corporate proceeding was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such authorized
representative is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 6.03. Mandatory Indemnification of Authorized Representatives.
To the extent that an authorized representative or other employee or agent of
the Corporation has been successful on the merits or otherwise in defense of any
third party or corporate proceeding or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses actually and
reasonably incurred by such person in connection therewith.
SECTION 6.04. Determination of Entitlement to Indemnification. Any
indemnification under Section 6.01, 6.02 or 6.03 of these By-Laws (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the authorized
representative or other employee or agent is proper in the circumstances because
such person has either met the applicable standard of conduct set
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forth in Section 6.01 or 6.02 or has been successful on the merits or otherwise
as set forth in Section 6.03 and that the amount requested has been actually and
reasonably incurred. Such determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such third party or
corporate proceeding; or
(2) if such a quorum is not obtainable, or even if obtainable,
a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion; or
(3) by the stockholders.
SECTION 6.05. Advancing Expenses. Expenses actually and
reasonably incurred in defending a third party or corporate proceeding shall be
paid on behalf of an authorized representative by the Corporation in advance of
the final disposition of such third party or corporate proceeding upon receipt
of an undertaking by or on behalf of the authorized representative to repay such
amount if it shall ultimately be determined that the authorized representative
is not entitled to be indemnified by the Corporation as authorized in this
Article. The financial ability of any authorized representative to make a
repayment contemplated by this section shall not be a prerequisite to the making
of an advance. Expenses incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the board of directors deems
appropriate.
SECTION 6.06. Definitions. For purposes of these By-Laws:
(1) "authorized representative" shall mean any and all
directors and officers of the Corporation and any person designated as
an authorized representative by the Board of Directors of the
Corporation (which may, but need not, include 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);
(2) "Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of
Article VI with respect to the resulting or surviving corporation as
such person would have with respect to such constituent corporation if
its separate existence had continued;
(3) "corporate proceeding" shall mean any threatened, pending
or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor or investigative proceeding by the
Corporation;
(4) "criminal third party proceeding" shall include any action
or investigation which could or does lead to a criminal third party
proceeding;
(5) "expenses" shall include attorneys' fees and
disbursements;
(6) "fines" shall include any excise taxes assessed on a
person with respect to an employee benefit plan;
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(7) "not opposed to the best interests of the Corporation"
shall include actions taken in good faith and in a manner the
authorized representative reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan;
(8) "other enterprises" shall include employee benefit plans;
(9) "party" shall include the giving of testimony or similar
involvement;
(10) "serving at the request of the Corporation" shall include
any service as a director, officer or employee of the Corporation which
imposes duties on, or involves services by, such director, officer or
employee with respect to an employee benefit plan, its participants, or
beneficiaries;
(11) "third party proceeding" shall mean any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative, or investigative, other than an action by or
in the right of the Corporation;
(12) "his" shall include the pronoun "hers"; and
(13) "Board" shall mean the Board of Directors of the
Corporation and "Director" shall mean a member of the Board of
Directors.
SECTION 6.07. Insurance. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against the person and incurred by the person in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify such person against such liability under
the provisions of this Article.
SECTION 6.08. Scope of Article. The indemnification of
authorized representatives and advancement of expenses, as authorized by the
preceding provisions of this Article, shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office. The indemnification and advancement of
expenses provided by or granted pursuant to Article VI shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be an authorized representative and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 6.09. Reliance on Provisions. Each person who shall
act as an authorized representative of the Corporation shall be deemed to be
doing so in reliance upon rights of indemnification provided by Article VI.
ARTICLE VII
General Provisions
SECTION 7.01. Waiver of Notice. Whenever any notice is
required to be given to any stockholder or director of the Corporation under the
provisions of the DGCL or these By-Laws, a waiver thereof in writing, signed by
the person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice. Neither
the business to be transacted at, nor the purpose
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of, any annual or special meeting of the stockholders or the Board of Directors
or committee thereof need be specified in any waiver of notice of such meeting.
SECTION 7.02. Dividends. Subject to the restrictions contained in the
DGCL and any restrictions contained in the Certificate of Incorporation, the
board of directors may declare and pay dividends upon the shares of capital
stock of the Corporation.
SECTION 7.03. Contracts. Except as otherwise required by law, the
Certificate of Incorporation or these By-Laws, any contracts or other
instruments may be executed and delivered in the name and on the behalf of the
Corporation by such officer or officers of the Corporation as the Board of
Directors may from time to time direct. Such authority may be general or
confined to specific instances as the Board may determine. The Chairman of the
Board, if an executive officer, the President or any Vice President may execute
bonds, contracts, deeds, leases, and other instruments to be made or executed
for or on behalf of the Corporation. Subject to any restrictions imposed by the
Board of Directors, the Chairman of the Board, if an executive officer, the
President or any Vice President of the Corporation may delegate contractual
powers to others under his jurisdiction, it being understood, however, that any
such delegation of power shall not relieve such officer of responsibility with
respect to the exercise of such delegated power.
SECTION 7.04. Corporate Seal. The Corporation shall have a corporate
seal, which shall have inscribed thereon the name of the Corporation, the year
of its organization and the words "Corporate Seal, Delaware." The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
SECTION 7.05. Deposits. All funds of the Corporation shall be deposited
from time to time to the credit of the Corporation in such banks, trust
companies, or other depositories as the Board of Directors may approve or
designate, and all such funds shall be withdrawn only upon checks signed by such
one or more officers or employees as the Board of Directors shall from time to
time determine.
SECTION 7.06. Corporate Records.
(a) Examination by Stockholders. Every stockholder shall, upon written
demand under oath stating the purpose thereof, have a right to examine, in
person or by agent or attorney, during the usual hours for business, for any
proper purpose, the stock ledger, list of stockholders, books or records of
account, and records of the proceedings of the stockholders and directors of the
Corporation, and to make copies or extracts therefrom. A proper purpose shall
mean a 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 Delaware or at its principal
place of business. Where the stockholder seeks to inspect the books and records
of the , other than its stock ledger or list of stockholders, the stockholder
shall first establish (1) that the stockholder has complied with the provisions
of this Section respecting the form and manner of making demand for inspection
of such documents; and (2) that the inspection sought is for a proper purpose.
Where the stockholder seeks to inspect the stock ledger or list of stockholders
of the Corporation and has complied with the provisions of this Section
respecting the form and manner of making demand for inspection of such
documents, the burden of proof shall be upon the Corporation to establish that
the inspection sought is for an improper purpose.
(b) Examination by Directors. Any director shall have the right to
examine the Corporation's stock ledger, a list of its stockholders and its other
books and records for a purpose reasonably related to the person's position as a
director.
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SECTION 7.07. Resignations. Any director or any officer, whether
elected or appointed, may resign at any time by giving written notice of such
resignation to the Chairman of the Board, the President, or the Secretary, and
such resignation shall be deemed to be effective as of the close of business on
the date said notice is received by the Chairman of the Board, the President, or
the Secretary, or at such later time as is specified therein. No formal action
shall be required of the Board of Directors or the stockholders to make any such
resignation effective.
SECTION 7.08. Removal. Any director or the entire Board of Directors
may be removed, with or without cause, by the holders of shares entitled to cast
a majority of the votes which all stockholders are entitled to cast at an
election of directors.
SECTION 7.09. Proxies. Unless otherwise provided by resolution adopted
by the Board of Directors, the Chairman of the Board, 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 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.
SECTION 7.10. Amendment of By-Laws. These By-Laws may be altered,
amended, or repealed at any meeting of the Board of Directors or of the
stockholders, provided notice of the proposed change was given in the notice of
the meeting and, in the case of a meeting of the Board of Directors, in a notice
given not less than two (2) days prior to the meeting; provided, however, that,
in the case of amendments by the Board of Directors, notwithstanding any other
provisions of these By-Laws or any provision of law which might otherwise permit
a lesser vote or no vote, the affirmative vote of a majority of the directors
then in office shall be required to alter, amend or repeal any provision of
these By-Laws; and further provided, that in the case of amendments by
stockholders, notwithstanding any other provisions of these By-Laws or any
provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of any particular class or
series of the capital stock of the Corporation required by law, the Certificate
of Incorporation or these By-Laws, the affirmative vote of the holders of at
least 66-2/3 percent of the voting power of all the then outstanding shares
having the right to vote thereon, voting together as a single class, shall be
required to alter, amend or repeal any provision of these By-Laws.
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Exhibit 99
PLD Telekom Inc. Press Release
Contacts: United States: UK:
Thomas C. Franco Tim Thompson
James O'Brien 44 (0) 171 730-3999
(212) 229-2222
FOR IMMEDIATE RELEASE
SHAREHOLDERS OVERWHELMINGLY APPROVE PLD TELEKOM'S
U.S. REINCORPORATION
Move Provides Financing and Organizational Benefits
NEW YORK, March 3, 1997 -- PLD Telekom Inc. (NASDAQ:PLDI;TSE:PLD) provider of
local, long distance and international telecommunications services in the
Russian Federation and Kazakstan, announced today that it has changed its
corporate domicile from Canada to the United States.
PLD shareholders overwhelmingly approved the reincorporation at a
special meeting of shareholders held on February 27, 1997, and the move was
subsequently effected by filings with the Ontario and Delaware regulatory
authorities. Approximately 95% of the votes cast at that meeting were in favor
of the reincorporation.
The company stated that it had undertaken the move because:
- the Company no longer has any operations in Canada, while the
majority of its investor base, as well as its principal
sources of financing, are in the U.S.;
- being a U.S. corporation will improve access to capital
markets and government-supported financing programs in the
United States;
- the Company would cease to be subject to the "passive foreign
investment company" (or PFIC) provisions of the U.S. Internal
Revenue Code, which had the potential to create significant
adverse tax effects for shareholders in the United States; and
- the Company would also cease to be subject to the provisions
of the Business Corporations Act (Ontario) which require that
that a majority of the board of directors be Canadian
residents, and which have inhibited the Company's ability to
diversify membership of its board.
The Company also said that it will be making announcements over the
next few months regarding re-organization of its corporate structure and
management, with the objective of simplifying the former and integrating the
latter better into its operating businesses, while improving the liaison between
the Company and its shareholders.
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The first step in the management re-organization is the opening of a
PLD representative office in St. Petersburg, Russia, and the appointment of Mr.
Peter Owen Edmunds as the Company's Representative Director. Mr. Owen Edmunds
was most recently Deputy General Director at PeterStar, one of PLD's operating
businesses, having served as PeterStar's Sales and Marketing Director since
1992. He joined PeterStar as Project Manager prior to the commencement of
operations and was a member of the team that helped formulate its development.
PLD Telekom is a major provider, through its operating ventures, of
high-quality local, long distance and international telecommunications services
in the Russian Federation and Kazakstan. Its three principal businesses are:
PeterStar, which provides integrated local, long distance and international
telecommunication services in St. Petersburg through a fully digital fiber-optic
network; Technocom/Teleport, which provides international telecommunications
services from Moscow and has launched a long distance service in the first group
of cities of a planned pan-Russian Network; and BECET International, which
provides the only national cellular service in Kazakstan.
2
