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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: December 31, 1998
MICRO WAREHOUSE, INC.
DELAWARE 0-20730 06-1192793
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(State of Incorporation) (Commission File No.) (IRS Id. No.)
535 Connecticut Avenue
Norwalk, Connecticut 06854
(203) 899-4000
Exhibit Index Appears on Page 3
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ITEM 5. OTHER EVENTS.
On December 2, 1998, the Board of Directors of Micro Warehouse, Inc.
(the "Company") amended Article II, Section 13 (Notification of Annual Meeting
Business) and Article III, Sections 4 and 5 of the Company's By Laws
(Nominations of Directors to be Elected at an Annual Meeting) (the "Revised
Sections") in response to recent changes in Rule 14a-4 of the Securities
Exchange Act of 1934. The amended By Laws provide that the Secretary of the
Company must receive written notification describing any business proposed to be
presented by a stockholder at an annual meeting at least 60 days before the date
on which the Company mailed its proxy materials for the prior year's annual
meeting.
The amendments to the Revised Sections became effective upon adoption
by the Board of Directors of the Company and will apply to the 1999 Annual
Meeting of Stockholders. Under the new provision, notification must be received
by the Secretary not later than March 2, 1999. The Revised Sections contain
additional requirements that apply to stockholders who wish to bring business
before an annual meeting. These requirements are included in the complete copy
of the amended By Laws filed as Exhibit No. 3.2 to this report.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL
INFORMATION AND EXHIBITS.
(c) Exhibits.
The following exhibit is filed herewith:
3.2 Micro Warehouse, Inc. Amended and Restated By Laws, dated
December 2, 1998.
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.
MICRO WAREHOUSE, INC.
(Registrant)
Date: December 31, 1998 By: /S/ BRUCE L. LEV
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Bruce L. Lev
Executive Vice President
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EXHIBIT INDEX
Exhibit
Number Description
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3.2 Micro Warehouse, Inc. Amended and Restated By Laws,
dated December 2, 1998
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EXHIBIT 3.2
MICRO WAREHOUSE, INC.
AMENDED AND RESTATED BY LAWS
DATED DECEMBER 2, 1998
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of
Wilmington, County of New Castle and State of Delaware.
Section 2. The Corporation may also have offices at such other
places both within and without the State of Delaware as the board of directors
may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election
of directors shall be held in the City of Norwalk, State of Connecticut, at such
place as may be fixed from time to time by the board of directors, or such other
place either within or without the State of Delaware as shall be designated from
time to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
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Section 2. Annual meetings of stockholders shall be held on or
about the 1st day of May, if not a legal holiday, and if a legal holiday, then
on the next secular day following, at 10:00 a.m. or at such other date and at
such time as shall be designated from time to time by the board of directors
and stated in the notice of the meeting, at which they shall elect by a
plurality vote a board of directors and transact such other business as may
properly be brought before the meeting in accordance with this Article II.
Section 3. Written notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled
to vote at such meeting not less than ten nor more than sixty days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the president and shall be called
by the president or secretary at the request in writing of a
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majority of the board of directors, or at the request in writing of stockholders
owning at least 80% of the entire capital stock of the Corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the
place, date and hour of the meeting and the purpose or purposes for which the
meeting is called shall be given not less than ten nor more than sixty days
before the date of the meeting to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 8. A majority of the stockholders, holding stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the certificate of incorporation. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote
of the holders of a majority of the stock having voting power present in person
or represented by proxy shall
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decide any question brought before such meeting, unless the question is one upon
which by express provision of the statutes or of the certificate of
incorporation a different vote is required, in which case such express provision
shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
ORDER OF BUSINESS
Section 11. The president, or such other officer of the
Corporation designated by a majority of the board of directors, will call
meetings of the stockholders to order and will act as presiding officer thereof.
Unless otherwise determined by the board of directors prior to the meeting, the
presiding officer of the meeting of the stockholders will also determine the
order of business and have the authority in his or her sole discretion to
regulate the conduct of any such meeting, including without limitation by
imposing restrictions on the persons (other than stockholders of the Corporation
or their duly appointed proxies) who may attend any such stockholders' meeting,
by ascertaining whether any stockholder or his or her proxy may be excluded from
any meeting of the stockholders based upon any determination by the presiding
officer, in his or her sole discretion, that any such person has unduly
disrupted or is likely to disrupt the proceedings thereat, and by determining
the circumstances in which any person may make a statement or ask questions at
any meeting of the stockholders.
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Section 12. At an annual meeting of the stockholders, only
such business will be conducted or considered as is properly brought before the
meeting. To be properly brought before an annual meeting, business must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the board of directors (or any duly authorized committee
thereof) in accordance with Section 3 of this Article, (b) otherwise properly
brought before the meeting by the presiding officer or by or at the direction of
a majority of the board of directors (or any duly authorized committee thereof),
or (c) otherwise properly requested to be brought before the meeting by a
stockholder of the Corporation in accordance with Section 13 of this Article.
Section 13. (a) For business to be properly requested by a
stockholder to be brought before an annual meeting, the stockholder must be a
stockholder of the Corporation (A) who is a stockholder of record on the date of
the giving of the notice provided for in this By Law and on the record date for
the determination of stockholders entitled to vote at such annual meeting and
(B) who complies with the notice procedures set forth in this By Law. In
addition to any other applicable requirements, for business to be properly
brought before an annual meeting by a stockholder, such stockholder must have
given timely notice thereof in proper written form to the secretary of the
Corporation. To be timely, a stockholder's notice to the secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 60 nor more than 90 calendar days prior to the date on
which the Corporation first mailed its proxy materials for the prior year's
annual meeting of stockholders; provided, however, that in the event that the
annual meeting is called for a date that is not within 30 calendar days before
or after the anniversary of the prior year's annual meeting, notice by the
stockholder in order to be timely must be so received not later than the
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close of business on the tenth calendar day following the day on which public
disclosure of the date of the annual meeting was made. In no event will the
public disclosure of an adjournment of an annual meeting commence a new time
period for the giving of a stockholder's notice as described above. For purposes
of the foregoing, the date on which the Corporation first mailed its proxy
materials to stockholders will be the date so described in such proxy materials.
(b) To be in proper written form, a stockholder's notice to the
secretary must set forth as to each matter such stockholder proposes to bring
before the annual meeting (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (ii) the name and record address of such stockholder,
(iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such stockholder, (iv)
a description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business, and (v) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
(c) If the presiding officer of an annual meeting determines that
business was not properly brought before the annual meeting in accordance with
the foregoing procedures, the presiding officer will declare to the meeting that
the business was not properly brought before the meeting and such business will
not be transacted.
Section 14. (a) At a special meeting of stockholders, only
such business may be conducted or considered as is properly brought before the
meeting. To be properly brought
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before a special meeting, business must be (a) specified in the notice of the
meeting (or any supplement thereto) given by or at the direction of the
president or a majority of the board of directors in accordance with Section 6
of this Article II, or (b) otherwise properly brought before the meeting by the
presiding officer or by or at the direction of a majority of the board of
directors.
(b) The determination of whether any business sought to be brought
before any special meeting of the stockholders is properly brought before such
meeting in accordance with this Article II will be made by the presiding officer
of such meeting. If the presiding officer determines that any business is not
properly brought before such meeting, he or she will so declare to the meeting
and any such business will not be conducted or considered.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the
whole board of directors shall be not less than two nor more than five. The
first board of directors shall consist of two directors. Thereafter, within the
limits above specified, the number of directors shall be determined by
resolution of the board of directors or by the vote of at least 80% of the
stockholders entitled to vote for the election of directors at an annual
meeting. Subject to the proper nomination procedure under this Article III, the
directors shall be elected at the annual meeting of the stockholders, except as
provided in Section 2 of this Article, and each director elected shall hold
office until his successor is elected and qualified. Directors need not be
stockholders.
Section 2. 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
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in office, though less than a quorum, or by a sole remaining director, and the
directors so chosen shall hold office until the next annual election and until
their successors are duly elected and shall qualify, unless sooner displaced. If
there are no directors in office, then an election of directors may be held in
the manner provided by statute. 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 of directors (as constituted immediately
prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten 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.
NOMINATIONS OF DIRECTORS
Section 3. Subject to the rights, if any, of the holders of
any series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock designation, only persons who are nominated in
accordance with the following procedures will be eligible for election at a
meeting of stockholders as directors of the Corporation.
Section 4. (a) Only persons who are nominated in accordance
with the following procedures will be eligible for election as directors of the
Corporation. Nominations of persons for election to the board of directors may
be made at any annual meeting of stockholders (i) by or at the direction of the
board of directors (or any duly authorized committee thereof) or (ii) by any
stockholder of the Corporation (A) who is a stockholder of record on the date of
the giving of the notice provided for in this By Law and on the record
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date for the determination of stockholders entitled to vote at such annual
meeting and (B) who complies with the notice procedures set forth in this By
Law. In addition to any other applicable requirements, for a nomination to be
made by a stockholder, such stockholder must have given timely notice thereof in
proper written form to the secretary of the Corporation. To be timely, a
stockholder's notice to the secretary must be delivered to or mailed and
received at the principal executive offices of the Corporation not less than 60
nor more than 90 calendar days prior to the date on which the Corporation first
mailed its proxy materials for the prior year's annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within 30 calendar days before or after the anniversary of the
prior year's annual meeting, notice by the stockholder in order to be timely
must be so received not later than the close of business on the tenth calendar
day following the day on which public disclosure of the date of the annual
meeting was made. In no event will the public disclosure of an adjournment of an
annual meeting commence a new time period for the giving of a stockholder's
notice as described above. For purposes of the foregoing, the date on which the
Corporation first mailed its proxy materials to stockholders will be the Date so
described in such proxy materials.
(b) To be in proper written form, a stockholder's notice to the
secretary must set forth (i) as to each person whom the stockholder proposes to
nominate for election as a director (A) the name, age, business address and
residence address of the person, (B) the principal occupation or employment of
the person, (C) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person, and (D) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies
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for election of directors pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder (the
"Exchange Act"), and (ii) as to the stockholder giving the notice (A) the name
and record address of such stockholder, (B) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or of
record by such stockholder, (C) a description of all arrangements or
understandings between or among such stockholder and each proposed nominee and
any other person or persons (including their names) pursuant to which the
nomination(s) are to be made by such stockholder, (D) a representation that such
stockholder intends to appear in person or by proxy at the meeting to nominate
the persons named in its notice, and (E) any other information relating to such
stockholder that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to the Exchange Act. Such notice must be
accompanied by a written consent of each proposed nominee to being named as a
nominee and to serve as a director if elected.
(c) If the presiding officer of the meeting of the stockholders
determines that a nomination was not made in accordance with the foregoing
procedures, the presiding officer will declare to the meeting that the
nomination was defective, and such defective nomination will be disregarded.
(d) Notwithstanding anything in this By Law to the contrary, in the
event that the number of directors to be elected to the board of directors is
increased and there is no public disclosure by the Corporation naming all of the
nominees for director or specifying the size of the increased board of directors
at least 70 calendar days prior to the date on which the Corporation first
mailed its proxy materials for the preceding year's annual meeting of
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stockholders, a stockholder's notice required by this By Law will also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it is delivered to the secretary at the principal
executive offices of the Corporation not later than the close of business on the
tenth day following the day on which such public disclosure is first made by the
Corporation.
Section 5. For purposes of By Laws Section 13 of Article II
and Section 4 of this Article, "public disclosure" means disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable
national news service or in a document filed by the Corporation with the
Securities and Exchange Commission pursuant to the Exchange Act. Notwithstanding
the foregoing provisions of By Laws Section 13 of Article II and Section 5 of
this Article, a stockholder must comply with all applicable requirements of the
Exchange Act with respect to the matters set forth in those By Laws.
BUSINESS OF CORPORATION
Section 6. The business of the Corporation shall be managed by
or under the direction of its board of directors which 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 directed or
required to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 7. The board of directors of the Corporation may hold
meetings, both regular and special, either within or without the States of
Delaware.
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Section 8. The first meeting of each newly elected board of
directors shall be held at such time and place as shall be fixed by the vote of
the stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 9. Regular meetings of the board of directors may be
held without notice at such time and at such place as shall from time to time be
determined by the board of directors.
Section 10. Special meetings of the board of directors may be
called by the chairman or president on two day's notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of two directors unless the board of directors consists of only one director; in
which case special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of the sole director.
Section 11. At all meetings of the board of directors, a
majority of the directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the directors, except as may be
otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the board of
directors, the
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directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 12. Unless prohibited by the certificate of
incorporation or these By Laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board of directors or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the board of directors or committee.
Section 13. Unless prohibited by the certificate of
incorporation or these By Laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 the meeting.
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INTERESTED DIRECTORS
Section 14. Whenever the business being transacted by the
board of directors relates to any contract or transaction between the
Corporation and one or more of its directors or officers, the board of directors
shall conduct said meeting and vote on said matter in full compliance with
Section 144 of the Delaware Corporation Law, as the same may be amended from
time to time.
COMMITTEES OF THE BOARD OF DIRECTORS
Section 15. The board of directors may, by resolution passed
by a majority of the whole board of directors, designate one or more committees,
each committee to consist of one or more of the directors of the Corporation.
The board of directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee.
Any such committee, to the extent provided in the resolution
of the board of directors, shall have and may exercise all the powers and
authority of the board of directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the certificate of incorporation
(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), fix 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
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same or any other class or classes of stock of the Corporation), adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the By Laws of the Corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. 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.
Section 16. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 17. Unless otherwise restricted by the certificate of
incorporation or these By Laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
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Section 18. Unless otherwise restricted by the certificate of
incorporation or by law, any director may be removed with cause by a majority of
the board of directors and any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or
of the certificate of incorporation or of these By Laws, notice is required to
be given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under
the provisions of the statutes or of the certificate of incorporation or of
these By Laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the Corporation shall be chosen by
the board of directors and shall be a president, a vice president, a secretary
and a treasurer. The board of
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directors may also choose additional vice presidents, and one or more assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these By Laws otherwise
provide.
Section 2. The board of directors at its first meeting after
each annual meeting of stockholders shall choose a president, one or more vice
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board of directors.
Section 4. The salaries of all officers of the Corporation
shall be fixed by the board of directors.
Section 5. The officers of the Corporation shall hold office
until their successors are chosen and qualify. Any officer elected or appointed
by the board of directors may be removed at any time by the affirmative vote of
a majority of the board of directors. Any vacancy occurring in any office of the
Corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer
of the Corporation, shall preside at all meetings of the stockholders and the
board of directors, shall have general and active management of the business of
the Corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
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Section 7. The president shall execute bonds, mortgages and
other contracts requiring a seal, under the seal of the Corporation, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the board of directors to some other officer or agent of the Corporation.
THE VICE PRESIDENT-CHIEF OPERATING OFFICER
Section 8. In the absence of the president or in the event of
his inability or refusal to act, a vice president who shall be the chief
operating officer shall have all the powers of and be subject to all of the
restrictions upon the president. The vice president-chief operating officer
shall perform such other duties and shall have such other powers as the board of
directors may from time to time prescribe.
THE VICE PRESIDENTS
Section 9. In the absence of the president and the vice
president-chief operating officer or in the event of their inability or refusal
to act, the vice president (or in the event there be more than one vice
president, the vice presidents in the order designated by the directors, or in
the absence of any designation, then in the order of their election) shall
perform the duties of the president and vice president-chief operating officer,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the president and vice president-chief operating officer. The
vice presidents shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
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Section 10. The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the Corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The board of directors may give general authority to
any other officer to affix the seal of the Corporation and to attest the
affixing by his signature.
Section 11. The assistant secretary, or if there be more than
one, the assistant secretaries in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the secretary or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the secretary and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURER
Section 12. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipt and disbursements in books belonging to the Corporation and shall
deposit all monies and other valuable effects in the
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name and to the credit of the Corporation in such depositories as may be
designated by the board of directors.
Section 13. He shall disburse the funds of the Corporation as
may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
Corporation.
Section 14. If required by the board of directors, he shall
give the Corporation a bond (which shall be renewed every six years) 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 his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
Section 15. The assistant treasurer, or if there shall be more
than one, the assistant treasurers in the order determined by the board of
directors (or if there be no such determination, then in the order of their
election) shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
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ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the Corporation shall be represented
by a certificate or shall be uncertificated. Certificates shall be signed by, or
in the name of the Corporation by, the chairman or vice chairman of the board of
directors, or the president or a vice president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
Corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the Corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on a certificate may
be facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
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LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate
or certificates or uncertificated shares to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates or
uncertificated shares, 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 his legal representative, to
advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Upon receipt of property transfer instructions from
the registered owner of uncertificated shares, such uncertificated shares shall
be canceled and issuance of new equivalent uncertificated shares or certificated
shares shall be made to the person entitled thereto and the transaction shall be
recorded upon the books of the Corporation.
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FIXING RECORD DATE
Section 5. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to Corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
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REGISTERED STOCKHOLDERS
Section 6. 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.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the
Corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation.
Section 2. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall think conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
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ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the Corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the Corporation shall be fixed
by resolution of the board of directors.
SEAL
Section 6. The corporate seal 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 reproduced or otherwise.
INDEMNIFICATION
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Section 7. The Corporation shall indemnify its officers,
directors, employees and agents to the full extent permitted by the General
Corporation Law of Delaware.
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ARTICLE VIII
AMENDMENTS
Section 1. These By Laws may be altered, amended or repealed
or new By Laws may be adopted by the stockholders or by the board of directors
when such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new By
Laws be contained in the notice of such special meeting. If the power to adopt,
amend or repeal By Laws is conferred upon the board of directors by the
certificate of incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By Law.
