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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AT&T Capital Corporation
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(Exact name of registrant as specified in its charter)
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Delaware 22-3211453
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(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
2 Gatehall Drive
Parsippany, New Jersey 07054
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(Address of principal executive offices) (Zip Code)
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SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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8.5% Senior Public Income NotES New York Stock Exchange
(PINES SM) due 2028
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instructions A.(c), check the following box [X]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instructions A.(d), check the following box [ ]
SECURITIES ACT REGISTRATION STATEMENT FILE NUMBER TO WHICH THIS FORM RELATES:
333-48415
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SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None
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(Title of Class)
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ITEM 1. Description of Registrant's Securities to Be Registered
The securities to be registered pursuant to Section 12(b) of
the Securities Exchange Act of 1934, as amended, are the 8.5% Senior Public
Income NotES (PINES'sm') due 2028 (the "Notes"). The Notes are comparable to
the Medium-Term Notes, Series F described in the Prospectus contained in the
Registration Statement on Form S-3/F-9 (No. 333-48415) (the "Registration
Statement") filed by the Registrant with the Securities and Exchange Commission
on April 28, 1998. The description of the Notes as set forth in the Registration
Statement is incorporated herein by reference. Additionally, a description of
the Notes is set forth under the caption "Description of the PINES" in the
Prospectus Supplement dated November 4, 1998 which was filed with the Securities
and Exchange Commission on November 6, 1998 pursuant to Rule 424(b) under the
Securities Act of 1933, as amended, and such description is hereby incorporated
by reference.
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ITEM 2. Exhibits
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1. Restated Certificate of Incorporation of the Registrant.
2. Bylaws of the Registrant, as amended through October 1, 1996.
3. Form of Medium-Term Global Fixed Rate Note, incorporated herein by
reference from the Registration Statement on Form S-3/F-9 (No.
333-48415).
4. Form of Guarantee relating to the Medium-Term Notes, incorporated
herein by reference from the Registration Statement on Form S-3/F-9
(No. 333-48415).
5. Form of Indenture, dated as of April 1, 1998, between the Registrant,
Newcourt Credit Group Inc. and The Chase Manhattan Bank, as trustee,
relating to the Medium Term Notes, Series F, incorporated herein by
reference from the Registration Statement on Form S-3/F-9 (No.
333-48415).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
and Exchange Act of 1934, the Registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
November 23, 1998 AT&T CAPITAL CORPORATION
By: /s/ Eric S. Mandelbaum
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Name: Eric S. Mandelbaum
Title: Assistant Vice President-Legal
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EXHIBIT INDEX
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Exhibit No. Description
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1. Restated Certificate of Incorporation of the Registrant.
2. Bylaws of the Registrant, as amended through October 1, 1996.
3. Form of Medium-Term Global Fixed Rate Note, incorporated
herein by reference from the Registration Statement on Form
S-3/F-9 (No. 333-48415).
4. Form of Guarantee relating to the Medium-Term Notes,
incorporated herein by reference from the Registration
Statement on Form S-3/F-9 (No. 333-48415).
5. Form of Indenture, dated as of April 1, 1998, between
the Registrant, Newcourt Credit Group Inc. and The
Chase Manhattan Bank, as trustee, relating to the
Medium Term Notes, Series F, incorporated herein by
reference from the Registration Statement on Form
S-3/F-9 (No. 333-48415).
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EXHIBIT 1
RESTATED CERTIFICATE OF INCORPORATION
OF
AT&T CAPITAL CORPORATION
AT&T Capital Corporation, a Delaware corporation, the original
Certificate of Incorporation of which was filed with the Secretary of State of
the State of Delaware on December 21, 1992, under the name AT&T Leasing, Inc.,
HEREBY CERTIFIES that this Restated Certificate of Incorporation restating,
integrating and amending its Certificate of Incorporation was duly proposed by
its Board of Directors and adopted by its stockholders in accordance with
Sections 242 and 245 of the General Corporation Law of the State of Delaware.
FIRST: The name of the Corporation is: AT&T Capital
Corporation (the "Corporation").
SECOND: The registered office of the Corporation is located at
32 Loockerman Square, Suite L-100, in the City of Dover, County of Kent, in the
State of Delaware. The name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of the State of Delaware (the "GCL").
FOURTH: A. The total number of shares of stock which the
Corporation shall have authority to issue is 100,000,000 shares of Common Stock,
each having a par value of $.01 per share, and 10,000,000 shares of Preferred
Stock, each having a par value of $.01 per share. At the time at which this
Restated Certificate of Incorporation is filed with the Secretary of State of
the State of Delaware (the "Filing Time"), each share of Common Stock, par value
$.01 per share, of the Corporation that shall be issued and outstanding or held
for any purpose in the treasury of the Corporation immediately prior thereto
shall be reclassified by changing such share into 402,500 shares of Common
Stock, par value $.01 per share.
B. The Board of Directors of the Corporation is hereby
expressly authorized at any time and from time to time to provide for the
issuance of all or any shares of the Preferred Stock in one or more classes or
series, and to fix for each such class or series such voting powers, full or
limited, or no voting powers, and such distinctive designations, preferences and
relative, participating, optional or other special rights and such
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issuance of such class or series and to the fullest extent as
may now or
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hereafter be permitted by the GCL, including, without limiting the generality of
the foregoing, the authority to provide that any such class or series may be (i)
subject to redemption at such time or times and at such price or prices; (ii)
entitled to receive dividends (which may be cumulative or non-cumulative) at
such rates, on such conditions, and at such times, and payable in preference to,
or in such relation to, the dividends payable on any other class or classes or
any other series; (iii) entitled to such rights upon the dissolution of, or upon
any distribution of the assets of, the Corporation; or (iv) convertible into, or
exchangeable for, shares of any other class or classes of stock, or of any other
series of the same or any other class or classes of stock, or other securities
or property, of the Corporation at such price or prices or at such rates of
exchange and with such adjustments; all as may be stated in such resolution or
resolutions. Unless otherwise provided in such resolution or resolutions, shares
of Preferred Stock of such class or series which shall be issued and thereafter
acquired by the Corporation through purchase, redemption, exchange, conversion
or otherwise shall return to the status of authorized but unissued Preferred
Stock.
FIFTH: A. The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors consisting of not less
than three nor more than twenty-five directors, the exact number of directors to
be determined from time to time by resolution adopted by affirmative vote of a
majority of the total number of directors that the Corporation would have if
there were no vacancies in the Board of Directors (the "Whole Board"). A
director shall hold office until the next annual meeting of stockholders and
until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office.
Subject to the rights of the holders of any series of Preferred Stock, any
vacancy on the Board of Directors may be filled only in accordance with Section
223 of the GCL; provided, however, that after the Trigger Date (as hereinafter
defined), subject to any such right, any vacancy on the Board of Directors shall
be filled only by a majority of the directors then in office, even if less than
a quorum, or a sole remaining director. Election of directors need not be by
written ballot unless the By-laws so provide. Any director elected to fill a
vacancy not resulting from an increase in the number of directors shall have the
same remaining term as that of his predecessor.
B. Notwithstanding the foregoing, whenever the holders of any
one or more series of Preferred stock issued by the Corporation shall have the
right, voting separately by class or series, to elect one or more directors at
an annual or special meeting of stockholders, the election, term of office,
filling of vacancies and other features of such directorships shall be governed
by the terms of this Restated Certificate of Incorporation applicable thereto
(including the resolutions adopted by the Board of Directors pursuant to Article
FOURTH). The number of directors that may be elected by the holders of any such
series of Preferred Stock shall be in addition to the number of directors fixed
by or pursuant to Section A of this Article FIFTH.
C. For purposes of (i) this Article FIFTH and Article NINTH
and Article TENTH hereof, "Trigger Date" shall mean the first date on which AT&T
(as hereinafter defined) ceases to beneficially own (excluding for such purposes
shares of Common Stock beneficially owned by AT&T but not for its own account,
such as beneficial ownership arising by virtue of some entity that is an
affiliate (as hereinafter defined) of AT&T being a sponsor or advisor of a
mutual or similar
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fund that beneficially owns shares of Common Stock) forty percent or more of the
aggregate voting power of the then outstanding Common Stock and Preferred Stock
entitled to vote together with the Common Stock as a single class in the
election of directors (collectively, for purposes of all Articles of this
Restated Certificate of Incorporation, the "Voting Stock") and (ii) Article
SEVENTH and Article EIGHTH hereof, "Trigger Date" shall have the meaning set
forth in clause (i) of this paragraph except that the word "twenty" shall
replace the word "forty" therein.
D. For purposes of this Article FIFTH and Article SEVENTH and
Article EIGHTH hereof (and, with respect to paragraph (1) below only, Article
TENTH hereof):
1. "AT&T" shall mean American Telephone and Telegraph
Company, a New York corporation (for purposes of all Articles of this
Restated Certificate of Incorporation, "AT&T Parent"), all successors
to AT&T Parent by way of merger, consolidation or sale of all or
substantially all its assets, and all corporations, partnerships, joint
ventures, associations and other entities (each a "Subsidiary Entity")
in which AT&T Parent beneficially owns (directly or indirectly) fifty
percent or more of the outstanding voting stock, voting power or
similar voting interests ("Voting Interest"), which shall include
without limitation AT&T Capital Holdings, Inc., a Delaware corporation,
and AT&T Credit Holdings, Inc., a Delaware corporation, but shall not
include the Corporation or any Subsidiary Entity in which the
Corporation beneficially owns (directly or indirectly) fifty percent or
more of the outstanding Voting Interest; and
2. "affiliate" and "beneficial ownership" shall have
the respective meanings given to such terms in Rules 12b-2 and 13d-3 of
the General Rules and Regulations under the Securities Exchange Act of
1934, as amended (for purposes of all Articles of this Restated
Certificate of Incorporation, the "Exchange Act"), as in effect at the
Filing Time.
E. Upon becoming aware of the occurrence of the Trigger Date,
the Corporation shall promptly act to notify stockholders of such occurrence in
any reasonably practicable manner (which may be through a press release).
F. Notwithstanding anything in this Restated Certificate of
Incorporation to the contrary and in addition to any vote of the Board of
Directors required by this Restated Certificate of Incorporation, after the
Trigger Date the affirmative vote of the holders of more than 80 percent of the
voting power of the Voting Stock then outstanding, voting together as a single
class, shall be required to alter, amend or repeal, or adopt any provision
inconsistent with, any provision of Section C of this Article FIFTH.
SIXTH: A. The Corporation shall indemnify to the fullest
extent permitted under and in accordance with the GCL, as it exists at the
Filing Time or as it may hereafter be amended, any person who was or is a party
to (or witness in) or is threatened to be made a party to
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(or witness in) any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was or has agreed to become a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving (or
who has agreed to serve) at the request of the Corporation as a director,
officer, trustee, employee or agent of or in any other capacity with respect to
another corporation, partnership, joint venture, trust or other enterprise (in
any of the foregoing capacities, a "Representative of the Corporation"), or by
reason of any action alleged to have been taken or omitted in such capacity, and
may indemnify to the same extent any person who was or is a party to (or witness
in) or is threatened to be made a party to (or witness in) any such action, suit
or proceeding by reason of the fact that he is or was or has agreed to become an
employee or agent of the Corporation, or is or was an employee or agent of the
Corporation serving (or who has agreed to serve) at the request of the
Corporation as a Representative of the Corporation, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
B. Expenses (including attorney fees) incurred in defending
any civil, criminal, administrative or investigative action, suit or proceeding
shall (in the case of any action, suit or proceeding against a director or
officer of the Corporation) or may (in the case of any action, suit or
proceeding against an employee, agent or Representative of the Corporation) be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding as authorized by the Board of Directors upon receipt of an
undertaking by or on behalf of the indemnified person to repay such amount if it
shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Article SIXTH.
C. The indemnification and other rights set forth in this
Article SIXTH shall not be exclusive of any provisions with respect thereto in
the By-Laws or any other contract or agreement between the Corporation and any
officer, director, employee or agent or Representative of the Corporation, and
shall inure to the benefit of the estate or personal representative of any
person indemnified hereunder.
D. Neither the amendment nor repeal of Section A, B or C of
this Article SIXTH nor the adoption of any provision of this Restated
Certificate of Incorporation inconsistent with such Section A, B C shall
eliminate or reduce the effect of Sections A, B and C of this Article SIXTH in
respect of any matter arising or relating to any actions or omissions occurring
prior to such amendment, repeal or adoption of an inconsistent provision or in
respect of any cause of action, suit or claim relating to any such matter that
would have given rise to a right of indemnification or right to receive payments
of expenses pursuant to Section A, B or C of this Article SIXTH if such
provision had not been so amended or repealed or if a provision inconsistent
therewith had not been so adopted.
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E. No director of the Corporation shall be personally liable
to the Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except for any matter in respect of which such
director (a) shall be liable under Section 174 of the GCL or any amendment
thereto or successor provision thereto, or (b) shall be liable by reason that,
in addition, to any and all other requirements for liability, he:
(i) shall have breached his duty of loyalty to the Corporation
or its stockholders;
(ii) shall not have acted in good faith or, in failing to act,
shall not have acted in good faith;
(iii) shall have acted in a manner involving intentional
misconduct or a knowing violation of law or, in failing to act, shall
have acted in a manner involving intentional misconduct or a knowing
violation of law; or
(iv) shall have derived an improper personal benefit.
If the GCL is amended after the Filing Time to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the corporation shall be eliminated or limited to the
fullest extent permitted by the GCL as so amended. Neither the amendment nor
repeal of this Section E nor the adoption of any provision of this Restated
Certificate of Incorporation inconsistent with this Section E shall eliminate or
reduce the effect of this Section E in respect of any matter arising or relating
to any actions or omissions occurring prior to such amendment, repeal or
adoption of an inconsistent provision.
SEVENTH: A. In anticipation that the Corporation will cease to
be a wholly owned subsidiary of AT&T but that AT&T will remain a stockholder of
the Corporation, and in anticipation that the corporation and AT&T may engage in
the same or similar activities or lines of business and have an interest in the
same areas of corporate opportunities, and in recognition of (i) the benefits to
be derived by the Corporation through its continued contractual, corporate and
business relations with AT&T (including service of officers and directors of
AT&T as directors of the Corporation) and (ii) the difficulties attendant to any
director, who desires and endeavors fully to satisfy such director's fiduciary
duties, in determining the full scope of such duties in any particular
situation, the provisions of this Article SEVENTH are set forth to regulate,
define and guide the conduct of certain affairs of the corporation as they may
involve AT&T and its officers and directors, and the powers, rights, duties and
liabilities of the Corporation and its officers, directors and stockholders in
connection therewith.
B. Except as AT&T may otherwise agree in writing, AT&T shall
have the right to, and shall have no duty not to, (i) engage in the same or
similar business activities or lines of business as the Corporation and (ii) do
business with any client or customer of the Corporation, and neither AT&T nor
any officer or director thereof (except an provided in Section C of this Article
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SEVENTH) shall be liable to the Corporation or its stockholders for breach of
any fiduciary duty by reason of any such activities of AT&T or of such person's
participation therein. In the event that AT&T acquires knowledge of a potential
transaction or matter that may be a corporate opportunity for both AT&T and the
Corporation, AT&T shall have no duty to communicate or present such corporate
opportunity to the corporation and shall not be liable to the Corporation or its
stockholders for breach of any fiduciary duty as a stockholder of the
Corporation by reason of the fact that AT&T pursues or acquires such corporate
opportunity for itself, directs such corporate opportunity to another person or
entity, or does not present such corporate opportunity to the Corporation.
C. In the event that a director or officer of the Corporation
who is also a director or officer of AT&T acquires knowledge of a potential
transaction or matter that may be a corporate opportunity for both the
Corporation and AT&T, such director or officer of the Corporation shall act in
good faith in a manner consistent with the following policy:
(i) a corporate opportunity offered to any person who is an
officer (whether or not a director) of the Corporation and who is also
a director but not an officer of AT&T shall belong to the Corporation,
unless such opportunity is expressly offered to such person primarily
in his capacity as a director of AT&T, in which case such opportunity
shall belong to AT&T;
(ii) a corporate opportunity offered to any person who is a
director but not an officer of the Corporation and who is also an
officer (whether or not a director) of AT&T shall belong to AT&T unless
such opportunity is expressly offered to such person primarily in his
capacity as a director of the Corporation, in which case such
opportunity shall belong to the Corporation; and
(iii) a corporate opportunity offered to any other person who
is either an officer of both the Corporation and AT&T or a director of
both the Corporation and AT&T shall belong to AT&T or to the
Corporation, as the case may be, if such opportunity is expressly
offered to such person primarily in his capacity as an officer or
director of AT&T or of the Corporation, respectively; otherwise, such
opportunity shall belong to either AT&T or the Corporation as a
majority of the directors of the Corporation who are not officers of
either AT&T or the Corporation or directors of AT&T shall determine in
their good faith judgment, taking into account all the facts and
circumstances with respect to such opportunity.
D. For the purposes of this Article SEVENTH, "corporate
opportunities" shall not include any business opportunities that the Corporation
is not financially able to undertake, or that are, from their nature, not in the
line of the Corporation's business or are of no practical advantage to it or
that are ones in which the Corporation has no interest or reasonable expectancy.
In addition, "corporate opportunities" shall not include any financing or other
transactions that, pursuant to the Operating Agreement dated as of June 25,
1993, between AT&T Parent and the Corporation, as such agreement may be amended
from time to time with the approval of a majority
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of the disinterested directors (the "Operating Agreement"), (i) AT&T is
permitted to finance itself or engage in with third party financing sources or
(ii) in which the Corporation or its subsidiaries are permitted to participate,
it being acknowledged that the rights of the Corporation under the Operating
Agreement shall be deemed for all purposes to be contractual rights and shall
not be corporate opportunities of the Corporation for any purpose.
E. Any person or entity purchasing or otherwise acquiring any
interest in any shares of capital stock of the Corporation shall be deemed to
have notice of and consented to the provisions of this Article SEVENTH.
F. For purposes of this Article SEVENTH only, the
"Corporation" shall mean the Corporation and all corporations, partnerships,
joint ventures, associations and other entities in which the Corporation
beneficially owns (directly or indirectly) fifty percent or more of the
outstanding voting stock, voting power or similar voting interests.
G. Notwithstanding anything in this Restated Certificate of
Incorporation to the contrary and in addition to any vote of the Board of
Directors required by this Restated Certificate of Incorporation, prior to the
Trigger Date the affirmative vote of the holders of more than 80 percent of the
voting power of the Voting Stock then outstanding, voting together as a single
class, shall be required to alter, amend or repeal in a manner adverse to the
interests of AT&T, or adopt any provision adverse to the interests of AT&T and
inconsistent with, any provision of this Article SEVENTH. Neither the
alteration, amendment or repeal of this Article SEVENTH nor the adoption of any
provision inconsistent with this Article SEVENTH shall eliminate or reduce the
effect of this Article SEVENTH in respect of any matter occurring, or any cause
of action, suit or claim that, but for this Article SEVENTH, would accrue or
arise, prior to such alteration, amendment, repeal or adoption.
EIGHTH: A. In anticipation that (i) the Corporation will cease
to be a wholly owned subsidiary of AT&T but that AT&T will remain a stockholder
of the Corporation and have continued contractual, corporate and business
relations with the corporation, and in anticipation that the Corporation and
AT&T or its customers (or other persons acquiring products manufactured or
distributed by AT&T) may enter into contracts or otherwise transact business
with each other and that the Corporation may derive benefits therefrom and (ii)
the Corporation may from time to time enter into contractual, corporate or
business relations with one or more of its directors, or one or more
corporations, partnerships, associations or other organizations in which one or
more of its directors have a financial interest (collectively, "Related
Entities"), the provisions of this Article EIGHTH are set forth to regulate and
guide certain contractual relations and other business relations of the
Corporation as they may involve AT&T or its customers (or other persons
acquiring products manufactured or distributed by AT&T), Related Entities and
their respective officers and directors, and the powers, rights, duties and
liabilities of the Corporation and its officers, directors and stockholders in
connection therewith. The provisions of this Article EIGHTH are in addition to,
and not in limitation of, the provisions of the GCL and the other provisions of
this Restated Certificate of Incorporation. Any contract or business relation
which does not comply with procedures set forth
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in this Article EIGHTH shall not by reason thereof be deemed void or voidable or
result in any breach of any fiduciary duty or duty of loyalty or failure to act
in good faith or in the best interests of the Corporation or the derivation of
any improper personal benefit, but shall be governed by the provisions of this
Restated Certificate of Incorporation, the By-Laws, the GCL and other applicable
law.
B. No contract, agreement, arrangement or transaction between
the Corporation and AT&T or any customer thereof (or other person acquiring
products manufactured or distributed by AT&T) or any Related Entity or between
the Corporation and one or more of the directors or officers of the Corporation,
AT&T or any Related Entity, or any amendment, modification or termination
thereof, shall be void or voidable solely for the reason that AT&T or such
customer (or other person), any Related Entity or any one or more of the
officers or directors of the Corporation, AT&T or any Related Entity are parties
thereto, or solely because any such directors or officers are present at or
participate in the meeting of the Board of Directors or committee thereof which
authorizes the contract, agreement, arrangement, transaction, amendment,
modification or termination or solely because his or their votes are counted for
such purpose, if:
(i) the material facts as to the contract, agreement,
arrangement, transaction, amendment, modification or termination are
disclosed or are known to the Board of Directors or the committee
thereof that authorizes the contract, agreement, arrangement,
transaction, amendment, modification or termination and the Board of
Directors or such committee in good faith authorizes or approves the
contract, agreement, arrangement, transaction, amendment, modification
or termination by the affirmative vote of a majority of the
disinterested directors on the Board of Directors or such committee,
even though the disinterested directors be less than a quorum;
(ii) the material facts as to the contract, agreement,
arrangement, transaction, amendment, modification or termination
involving AT&T or such customer (or other person) or a Related Entity
are disclosed or are known to the holders of Voting Stock entitled to
vote thereon, and the contract, agreement, arrangement, transaction,
amendment, modification or termination in specifically approved in good
faith by vote of the holders of a majority of the then outstanding
Voting Stock not owned by AT&T or such Related Entity, as the case may
be;
(iii) such contract, agreement, arrangement, transaction,
amendment, modification or termination is effected pursuant to, and
consistent with, terms and conditions specified in any arrangements,
standards, guidelines or protocols (contemplating multiple
transactions), which arrangements, standards, guidelines or protocols
are in good faith authorized or approved, after disclosure or knowledge
of the material facts related thereto, by the affirmative vote of a
majority of the disinterested directors on the Board of Directors or
the applicable committee thereof, even though the disinterested
directors be less than a quorum, or by vote of the
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holders of a majority of the then outstanding Voting Stock not owned by
AT&T or such Related Entity, as the case may be (such authorization, or
approval of such arrangements, standards, guidelines or protocols
constituting or being deemed to constitute authorization or approval of
such contract, agreement, arrangement, transaction, amendment,
modification or termination); or
(iv) such contract, agreement, arrangement, transaction,
amendment, modification or termination is fair as to the Corporation as
of the time it is authorized, approved or ratified by the Board of
Directors, a committee thereof or the stockholders of the Corporation.
In addition, each such contract, agreement, arrangement, transaction, amendment,
modification or termination authorized, approved or effected, and each of such
arrangements, standards, guidelines or protocols so authorized or approved, as
described in (i), (ii) or (iii) above shall be deemed to be entirely fair to the
corporation and its stockholders; provided, however, that if such authorization
or approval is not obtained, or such contract, agreement, arrangement,
transaction, amendment, modification or termination is not so effected, no
presumption shall arise that such contract, agreement, arrangement, transaction,
amendment, modification or termination, or such arrangements, standards,
guidelines or protocols, are not fair to the Corporation and its stockholders.
C. Directors of the corporation who are also directors or
officers of AT&T or any Related Entity may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
that authorizes or approves any such contract, agreement, arrangement,
transaction, amendment, modification or termination or any such arrangements,
guidelines, standards or protocols. Voting Stock owned by AT&T and any Related
Entities may be counted in determining the presence of a quorum at a meeting of
stockholders that authorizes or approves any such contract, agreement,
arrangement, transaction, amendment, modification or termination or any such
arrangements, guidelines, standards or protocols.
D. AT&T shall not be liable to the Corporation or its
stockholders for breach of any fiduciary duty by reason of the fact that AT&T in
good faith takes any action or exercises any rights or gives or withholds any
consent in connection with any agreement or contract between AT&T and the
Corporation. No vote cast or other action taken by any person who is an officer,
director or other representative of AT&T, which vote is cast or action is taken
by such person in his capacity as a director of this Corporation, shall
constitute an action of or the exercise of a right by or a consent of AT&T for
the purpose of any such agreement or contract.
E. Any person or entity purchasing or otherwise acquiring any
interest in any shares of capital stock of the corporation shall be deemed to
have notice of and to have consented to the provisions of this Article EIGHTH.
F. For purposes of this Article EIGHTH, any contract,
agreement, arrangement or transaction with any corporation, partnership, joint
venture, association or other entity in which
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the corporation beneficially owns (directly or indirectly) fifty percent or more
of the outstanding voting stock, voting power or similar voting interests, or
with any officer or director thereof, shall be deemed to be a contract,
agreement, arrangement or transaction with the Corporation.
G. Notwithstanding anything in this Restated Certificate of
Incorporation to the contrary and in addition to any vote of the Board of
Directors required by this Restated Certificate of Incorporation, prior to the
Trigger Date the affirmative vote of the holders of more than 80 percent of the
voting power of the Voting Stock then outstanding, voting together as a single
class, shall be required to alter, amend or repeal in a manner adverse to the
interests of AT&T, or adopt any provision adverse to the interests of AT&T and
inconsistent with, any provision of this Article EIGHTH. Neither the alteration,
amendment or repeal of this Article EIGHTH nor the adoption of any provision
inconsistent with this Article EIGHTH shall eliminate or reduce the effect of
this Article EIGHTH in respect of any matter occurring, or any cause of action,
suit or claim that, but for this Article EIGHTH, would accrue or arise, prior to
such alteration, amendment, repeal or adoption.
NINTH: A. Any action required or permitted to be taken by the
stockholders of the Corporation may be effected without a meeting of such
stockholders by a consent in writing by such stockholders in accordance with
Section 228 of the GCL; provided, however, that after the Trigger Date, any
action required or permitted to be taken by the stockholders of the Corporation
shall be effected only at a duly called annual or special meeting of such
stockholders and shall not be effected by a consent in writing by such
stockholders in lieu of such a meeting.
B. Advance notice of stockholder nominations for the election
of directors and of business to be brought by stockholders before any meeting of
stockholders of the Corporation shall be given in the manner provided in the
By-Laws. At any annual meeting or special venting of stockholders of the
Corporation, only such business shall be conducted as shall have been brought
before such meeting in the manner provided in the By-Laws.
C. The Board of Directors shall have the express power,
without a vote of stockholders, to adopt any By-Law consistent with this
Restated Certificate of Incorporation and all By-Laws adopted by vote of the
stockholders of the Corporation, and to amend, alter or repeal the By-Laws of
the Corporation other than any By-Laws adopted by vote of the stockholders of
the Corporation, except to the extent that the By-Laws or this Restated
Certificate of Incorporation otherwise provide. The Board of Directors may
exercise such power upon the affirmative vote of a majority of the Whole Board.
Stockholders may adopt any By Law, or amend, alter or repeal the By-Laws of the
Corporation, in each case consistent with this Restated Certificate of
Incorporation, upon the affirmative vote of the holders of, on or prior to the
Trigger Date, at least a majority, and thereafter, at least 80 percent, of the
voting power of the Voting Stock then outstanding, voting together as a single
class.
D. Notwithstanding anything in this Restated Certificate of
Incorporation to the contrary and in addition to any vote of the Board of
Directors required by this Restated Certificate of Incorporation, after the
Trigger Date the affirmative vote cf the holders of more than 80 percent
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of the voting power of the Voting Stock then outstanding, voting together as a
single class, shall be required to alter, amend or repeal, or adopt any
provision inconsistent with, any provision of this Article NINTH. Neither the
alteration, amendment or repeal of this Article NINTH nor the adoption of any
provision inconsistent with this Article NINTH shall eliminate or reduce the
effect of this Article NINTH in respect of any matter occurring, or any cause of
action, suit or claim that, but for this Article NINTH, would accrue or arise,
prior to such alteration, amendment, repeal or adoption.
TENTH: A. (1) In addition to any affirmative vote required by
law, by this Restated Certificate of Incorporation or by any class or series of
Preferred Stock, and except as otherwise expressly provided in section B of this
Article TENTH:
(i) any merger or consolidation of the Corporation or any
subsidiary (as hereinafter defined) with (a) any Interested stockholder
(as hereinafter defined) or (b) any other corporation (whether or not
itself an Interested Stockholder which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) of an
Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any interested stockholder or any Affiliate of
any Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate Fair Market Value (as hereinafter
defined) of $10 million or more; or
(iii) the issuance or transfer by the corporation or any
subsidiary (in one transaction or a series of transactions) of any
securities of the corporation or any subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in exchange
for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $10 million or more; or
(iv) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of any
Interested Stockholder or any Affiliate of any Interested Stockholder;
or
(v) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or otherwise involving any
Interested Stockholder) that has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any
class of equity or convertible securities of the Corporation or any
Subsidiary that is Beneficially Owned (as hereinafter defined) by any
Interested Stockholder or any Affiliate of any Interested Stockholder;
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shall after the Trigger Date require the affirmative vote of the holders of at
least 80 percent of the voting power of all the then outstanding shares of the
Voting Stock, voting together as a single class. Such affirmative vote shall be
required notwithstanding any other provisions of this Restated Certificate of
Incorporation (except Section B of this Article TENTH) or any provision of law
or of any agreement with any national securities exchange or otherwise which
might otherwise permit a lesser vote or no vote.
(2) The term "Business Combination" as used in this Article
TENTH shall mean any transaction that is referred to in any one or more of
subparagraphs (i) through (v) of paragraph (1) of this Section A.
B. The provisions of Section A of this Article TENTH shall not
be applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by law, any
other provision of this Restated Certificate of Incorporation and any series or
class of Preferred Stock, if, in the case of a Business Combination that does
not involve any cash or other consideration being received by the stockholders
of the Corporation, solely in their respective capacities as stockholders of the
corporation, the condition specified in the following paragraph (1) is met or,
in the case of any other business Combination, the conditions specified in
either of the following paragraph (1) or paragraph (2) are met:
(1) The Business Combination shall have been approved by a
majority of the Continuing Directors (as hereinafter defined); provided,
however, that this condition shall not be capable of satisfaction unless there
are at least three Continuing Directors.
(2) All of the following conditions shall have been met:
(i) The consideration to be received by holders of shares of a
particular class (or series) of outstanding capital stock (including
Common Stock but other than Excluded Preferred Stock (as hereinafter
defined)) shall be in cash or in the same form as the interested
Stockholder or any of its Affiliates has previously paid for shares of
such class (or series) of capital stock. If the Interested Stockholder
or any of its Affiliates have paid for shares of any class (or series)
of capital stock with varying forms of consideration, the form of
consideration to be received per share by holders of shares of such
class (or series) of capital stock shall be either cash or the form
used to acquire the largest number of shares of such class (or series)
of capital stock previously acquired by the interested stockholder.
(ii) The aggregate amount of (x) the cash and (y) the Fair
Market Value, as of the date (the "Consummation Date") of the
consummation of the Business Combination, of the consideration other
than cash to be received per share by holders of Common Stock in such
Business Combination shall be at least equal to the higher of the
following (in each case appropriately adjusted in the event of any
stock dividend, stock split, combination of shares or similar event):
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(a) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested stockholder
or any of its Affiliates for any shares of Common Stock
acquired by any of them within the two-year period immediately
prior to the date of the first public announcement of the
proposal of the Business Combination (the "Announcement Date")
or in any transaction in which the Interested Stockholder
became an Interested Stockholder, whichever is higher, plus
interest compounded annually from the first date on which the
Interested Stockholder became an Interested Stockholder (the
"Determination Date") through the Consummation Date, at the
publicly announced prime or base rate of interest of such
major bank headquartered in The City of New York as shall be
selected by the continuing Directors, as such rate of interest
is from time to time in effect in The City of New York (the
"Article TENTH Interest Rate"), less the aggregate amount of
any cash dividends paid and the Fair Market Value of any
dividends paid in other than cash, on each share of Common
Stock from the Determination Date through the Consummation
Date in an amount up to but not exceeding the amount of
interest so payable per share of Common Stock; and
(b) the Fair Market Value per share of Common Stock
on the Announcement Date or the Determination Date, whichever
is higher.
(iii) The aggregate amount of (x) the cash and (y) the Fair
Market Value, as of the Consummation Date, of the consideration other
than cash to be received per share by holders of shares of any class
(or series), other than Common Stock or Excluded Preferred Stock, of
outstanding capital stock shall be at least equal to the highest of the
following (in each case appropriately adjusted in the event of any
stock dividend, stock split, combination of shares or similar event),
it being intended that the requirements of this paragraph (iii) shall
be required to be met with respect to every such class (or series) of
outstanding capital stock whether or not the Interested Stockholder or
any of its Affiliates has previously acquired any shares of a
particular class (or series) of capital stock:
(a) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested Stockholder or any of its
Affiliates for any shares of such class (or series) of capital stock
acquired by any of them within the two-year period immediately prior to
the Announcement Date or in any transaction in which the Interested
Stockholder became an Interested Stockholder, whichever is higher, plus
interest compounded
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annually from the Determination Date through the Consummation Date at
the Article TENTH Interest Rate, as such rate of interest is from time
to time in effect less the aggregate amount of any cash dividends paid
and the Fair Market Value of any dividends paid in other than cash, on
each share of such class (or series of capital stock from the
Determination Date through the Consummation Date in an amount up to but
not exceeding the amount of interest so payable per share if such class
(or series) of capital stock;
(b) the Fair Market Value per share of such class (or
series) of capital stock on the Announcement Date or on the
Determination Date, whichever is higher; and
(c) the highest preferential amount per share, if
any, to which the holders of shares of such class (or series) of
capital stock would be entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation.
(iv) After such Interested Stockholder has become an
Interested Stockholder and prior to the consummation of such Business
Combination; (a) except as approved by a majority of the Continuing Directors,
there shall have been no failure to declare and pay at the regular date therefor
any full quarterly dividends (whether or not cumulative) on any outstanding
Preferred Stock; (b) except as approved by a majority of the Continuing
Directors, there shall have been (I) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect any
subdivision of the Common Stock) and (II) an increase in such annual rate of
dividends as is necessary to reflect any reclassification (including any reverse
stock split), recapitalization, reorganization or any similar transaction that
has the effect of reducing the number of outstanding shares of the Common Stock;
and (c) neither such interested stockholder nor any of its Affiliates shall have
become the beneficial owner of any additional shares of Voting Stock except as
part of the transaction that results in such Interested Stockholder becoming an
Interested Stockholder, except pursuant to a dividend or distribution or similar
transaction paid or made pro rata to all holders of a class or series of stock
of the Corporation subsequent to the time the Interested Stockholder became
such, provided that such transaction shall not result in an increase in the
Interested Stockholder's proportionate share of the stock of any class or series
of the Corporation or of the Voting Stock; provided, however, that no approval
by Continuing Directors shall satisfy the requirements of this paragraph (iv)
unless at the time of such approval there are at least three Continuing
Directors.
(v) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder and any of its Affiliates shall not
have received the benefit, directly or, indirectly (except proportionately,
solely in such Interested Stockholder's or Affiliate's capacity as a stockholder
of the Corporation), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages provided by the
Corporation, whether in anticipation of or in connection with such Business
Combination or otherwise.
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(vi) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the Exchange Act and
the rules and regulations thereunder shall be mailed to all stockholders of the
Corporation at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is required to
be mailed pursuant to the Exchange Act).
(vii) Such Interested Stockholder shall have supplied the
corporation with such information as shall have been requested pursuant to
Section E of this Article TENTH within the time period set forth herein.
C. For the purposes of this Article TENTH only:
(1) A "person" means any individual, limited partnership, general
partnership, trust, corporation or other firm or entity.
(2) "Interested Stockholder" means any person (other than the
Corporation or any Subsidiary or AT&T) who or which:
(i) is the beneficial owner (as hereinafter defined), directly
or indirectly, of ten percent or more of the voting power of the
outstanding Voting Stock; or
(ii) is an Affiliate or an Associate (as hereinafter defined)
of the Corporation and at any time within the two-year period
immediately prior to the date in question was the beneficial owner,
directly or indirectly, of ten percent or more of the voting power of
the then outstanding Voting stock; or
(iii) is an assignee of or has otherwise succeeded to any
shares of Voting Stock which were at any time within the two-year
period immediately prior to the date in question beneficially owned by
any Interested Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of Section 4(2) of the
Securities Act of 1933, as amended.
(3) A person shall be a "beneficial owner" of or shall
"Beneficially Own, any Voting Stock:
(i) that such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly within the meaning of Rule
13d-3 under the Exchange Act, as in effect at the Filing Time; or
(ii) that which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant to
any agreement, arrangement or understanding or upon
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the exercise of conversion rights, exchange rights, warrants or
options, or otherwise, or (b) the right to vote pursuant to any
agreement, arrangement or understanding (but neither such person nor
any such Affiliate or Associate shall be deemed to be the beneficial
owner of any shares of voting stock solely by reason of having a
revocable proxy granted for a particular meeting of stockholders,
pursuant to a public solicitation of proxies for such meeting, and with
respect to which shares neither such person nor any such Affiliate or
Associate is otherwise deemed the beneficial owner); or
(iii) that are beneficially owned, directly or indirectly,
within the meaning of Rule 13d-3 under the Exchange Act, as in effect
at the Filing Time, by any other person with which such person or any
of its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting (other than
solely by reason of a revocable proxy as described in subparagraph (ii)
of this paragraph (3)) or disposing of any shares of Voting Stock;
provided, however, that in the case of any employee stock ownership or similar
plan of the Corporation or of any subsidiary in which the beneficiaries thereof
possess the right to vote any shares of Voting Stock held by such plan, no such
plan nor any trustee with respect thereto (nor any Affiliate or Associate of
such trustee), solely by reason of such capacity as such trustee, shall be
deemed for any purposes hereof to beneficially own any shares of Voting Stock
held under any such plan.
(4) For the purposes of determining whether a person in an
Interested Stockholder pursuant to paragraph (2) of this Section C, the number
of shares of Voting Stock deemed to be outstanding shall include shares deemed
owned by such person through application of paragraph (3) of this Section C but
shall not include any other unissued shares of Voting Stock that may be issuable
pursuant to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(5) "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act as in effect at the Filing Time.
(6) "Subsidiary" means any corporation of which a majority of
any class of equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the definition of
Interested Stockholder set forth in paragraph (2) of this Section C, the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the Corporation.
(7) "Continuing Director" means any member of the Board of
Directors of the Corporation who is unaffiliated with the interested Stockholder
and was a member of the Board prior to the time that the Interested Stockholder
became an Interested Stockholder, and any director who
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is thereafter chosen to fill any vacancy on the Board of Directors or who is
elected and who, in either event, is unaffiliated with the Interested
Stockholder and in connection with his or her initial assumption of office is
recommended for appointment or election by a majority of the Continuing Director
then on the Board.
(8) "Fair Market Value" means: (i) in the case of stock, the
highest closing sale price during the 30-day period immediately preceding the
date in question of a share of such stock on the Composite Tape for New York
Stock Exchange Listed Stocks, or, if such stock is not listed on the Composite
Tape, on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Exchange Act on which such stock is listed, or, if such stock is not listed
on any such exchange, the highest closing bid quotation with respect to a share
of such stock during the 30-day period preceding the date in question on the
National Association of Securities Dealers, Inc. Automated Quotations System or
any similar system then in use or, if no such quotations are available, the fair
market value on the date in question of a share of such stock as determined by
the Board of Directors of the corporation in accordance with Section D of this
Article TENTH; and (ii) in the case of property other than cash or stock, the
fair market value of such property on the date in question as determined by the
Board of Directors of the Corporation in accordance with Section D of this
Article TENTH.
(9) In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be received"
as used in paragraph (2)(ii) and (2)(iii) of Section B of this Article TENTH
shall include the shares of Common Stock and/or the shares of any other class
(or series) of outstanding capital stock retained by the holders of such shares.
(10) "Whole Board" means at any time the total number of
directors that the Corporation would have at such time if there were then no
vacancies on the Corporation's Board of Directors.
(11) "Excluded Preferred Stock" means any series of Preferred
Stock with respect to which the Preferred Stock Designation creating such series
or class expressly provides that the provisions of this Article TENTH shall not
apply.
(12) "Voting Stock" means capital stock of the Corporation
entitled to vote generally in the election of directors.
D. A majority of the Whole Board, but only if a majority of
the Whole Board shall then consist of Continuing Directors or, if a majority of
the Whole Board shall not then consist of Continuing Directors, a majority of
the then Continuing Directors, shall have the power and duty to determine, on
the basis of information known to them after reasonable inquiry, all facts
necessary to determine compliance with this Article TENTH, including, without
limitation, (i) whether a person is an Interested Stockholder, (ii) the number
of shares of Voting Stock beneficially owned by any person, (iii) whether a
person is an Affiliate or Associate of another, (iv) whether the applicable
conditions set forth in paragraph (2) of Section B of this Article TENTH have
been met
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with respect to any Business Combination, (v) the Fair Market Value of stock or
other property in accordance with paragraph (8) of Section C of this Article
TENTH, and (vi) whether the assets that are the subject of any Business
Combination referred to in paragraph (1)(ii) of Section A have, or the
consideration to be received for the issuance or transfer of securities by the
Corporation or any Subsidiary in any Business Combination referred to in
paragraph (1)(iii) of Section A has, an aggregate Fair Market value of $10
million or more.
E. A majority of the Whole Board shall have the right to
demand, but only if a majority of the Whole Board shall then consist of
Continuing Directors, or, if a majority of the Whole Board shall not then
consist of Continuing Directors, a majority of the then Continuing Directors
shall have the right to demand, that any person who is reasonably believed to be
an Interested Stockholder (or holds of record shares of Voting Stock reasonably
believed to be Beneficially Owned by an Interested Stockholder) supply the
Corporation with complete information as to (i) the record owner(s) of all
shares Beneficially Owned by such person that is reasonably believed to be an
Interested Stockholder, (ii) the number of and class or series of shares
Beneficially Owned by such person that is reasonably believed to be an
Interested Stockholder and held of record by each such record owner and the
number(s) of the stock certificate(s) evidencing such shares and (iii) any other
factual matter relating to the applicability or effect of this Article TENTH, as
may be reasonably requested of such person, and such person shall furnish such
information within 10 days after receipt of such demand.
F. Nothing contained in this Article TENTH shall be construed
to relieve any Interested Stockholder from any fiduciary obligation imposed by
law.
G. Notwithstanding any other provisions of this Restated
Certificate of Incorporation or any provision of law that might otherwise permit
a lessor vote or no vote, but in addition to any affirmative vote of the holders
of any particular class or series of the Voting Stock required by law, this
Restated Certificate of Incorporation or any class or series of Preferred Stock,
the affirmative vote of the holders of at least 80 percent of the voting power
of all of the then outstanding shares of the Voting Stock, voting together as a
single class, shall be required to alter, amend or repeal, or adopt any
provision inconsistent with, any provision of this Article TENTH.
ELEVENTH: In furtherance and not in limitation of the powers
conferred by law or in this Restated Certificate of Incorporation, the Board of
Directors (and any committee of the Board of Directors) is expressly authorized,
to the extent permitted by law, to take such action or actions as the Board or
such committee may determine to be reasonably necessary or desirable to (A)
encourage any individual or entity to enter into negotiations with the Board of
Directors and management of the Corporation with respect to any transaction that
may result in a change in control of the Corporation that is proposed or
initiated by such person or (B) contest or oppose any such transaction that the
Board of Directors or such committee determines to be unfair, abusive or
otherwise undesirable with respect to (i) the Corporation and its business,
assets or properties or (ii) the stockholders of the Corporation, including,
without limitation, the adoption of such plans or the issuance of such rights,
options, capital stock, notes, debentures or other evidences of indebtedness
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or other securities of the Corporation, which rights, options, capital stock,
notes, evidences of indebtedness and other securities (i) may be exchangeable
for or convertible into cash or other securities on such terms and conditions as
may be determined by the Board of Directors or such committee and (ii) may
provide for the treatment of any holder or class of holders thereof designated
by the Board of Directors or any such committee in respect of the terms,
conditions, provisions and rights of such securities that is different from, and
unequal to, the terms, conditions, provisions and rights applicable to all other
holders thereof.
TWELFTH: The Corporation reserves the right to amend or repeal
any provision contained in this Restated Certificate of incorporation in the
manner now or hereafter prescribed by the laws of the State of Delaware, and all
rights herein conferred upon stockholder or directors are granted subject to
this reservation.
IN WITNESS WHEREOF, AT&T Capital Corporation has caused this
Certificate to be signed on this 25th day of June, 1993 in its name and attested
by duly authorized officers.
ATTEST: AT&T CAPITAL CORPORATION
/s/ G. Daniel McCarthy BY: /s/ Thomas C. Wajnert
- ------------------------- --------------------------
Name: G. Daniel McCarthy Name: Thomas C. Wajnert
Title: Secretary Title: President
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EXHIBIT 2
BY-LAWS
OF
AT&T CAPITAL CORPORATION
(hereinafter called the "Company")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Company shall be in the City of Dover, County of Kent, State of Delaware.
Section 2. Other Offices. The Company 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.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for
the election of directors or for any other purpose shall be held at such time
and 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 or in a duly executed waiver of notice thereof. Each meeting of
the stockholders shall be chaired by the Chairman of the Board of Directors or
his designee.
Section 2. Annual Meeting. The Annual Meeting of Stockholders
shall be held on such 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
meeting the stockholders shall elect by a plurality vote a Board of Directors,
and transact such other business as may properly be brought before the meeting.
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. Any
previously scheduled Annual Meeting of Stockholders may be postponed by
resolution of the Board of Directors upon notice given on or prior to the date
previously scheduled for such meeting.
Section 3. Special Meetings. Unless otherwise prescribed by
law or by the Restated Certificate of Incorporation of the Company Special
Meetings of Stockholders, for any purpose or purposes, may be called by (i) the
Chairman of the Board of Directors, (ii) the Chief Executive Officer, (iii) the
Secretary or (iv) the Chairman of the Executive Committee, and shall be
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called by any such officer at the request in writing of a majority of the entire
Board of Directors. Such request shall state the purpose or purposes of the
proposed meeting. Written notice of a Special Meeting of Stockholders 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. Except as otherwise required by law or by the Restated Certificate of
Incorporation, no business shall be transacted at any Special Meeting of
Stockholders other than the items of business stated in the notice of meeting.
If the Chairman of a Special Meeting of Stockholders determines that any
business proposed to be conducted at such meeting was not properly brought
before such meeting in accordance with the foregoing procedures, the Chairman
shall declare to such meeting that such business was not properly brought before
such meeting, and such business shall not be transacted.
Section 4. Quorum. Except as otherwise provided by law or by
the Restated Certificate of Incorporation or any agreement executed by the
Company's stockholders, the holders of a majority of the capital 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. 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 of the place, date and hour of the adjourned 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 noticed. 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 entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the
Restated Certificate of Incorporation, these By-Laws or any agreement executed
by the Company's stockholders, any question brought before any meeting of
stockholders shall be decided by the vote of the holders of a majority of the
stock represented and entitled to vote thereat. Each stockholder represented at
a meeting of stockholders shall be entitled to cast one vote for each share of
the capital stock entitled to vote thereat held by such stockholder or such
other vote, if any, as shall be set forth in the Restated Certificate of
Incorporation. Such votes may be cast in person or by duly executed proxy but no
proxy shall be voted on or after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion, or the
officer of the Company presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by
written ballot.
Section 6. List of Stockholders Entitled to Vote. The
Secretary of the Company 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
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ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Company who is present.
Section 7. Stock Ledger. The stock ledger of the Company shall
be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by Section 6 of this Article 11 or the books of
the Company, or to vote in person or by proxy at any meeting of stockholders.
Section 8. Business at Annual Meetings. No business may be
transacted at an Annual Meeting of Stockholders, other than business that is
either (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, (b) otherwise properly brought before the Annual Meeting of
Stockholders by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (c) otherwise properly brought before the
Annual Meeting of Stockholders by any stockholder of the Company who is a
stockholder of record on the date of the giving of the notice provided for in
this Section 8 and on the record date for the determination of stockholders
entitled to vote at such annual meeting.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The Board of
Directors shall consist of not less than two nor more than fifteen members, the
exact number of which shall be fixed from time to time by resolution adopted by
the affirmative vote of a majority of the total number of directors that the
Company would have if there were no vacancies in the Board of Directors. Any
director may resign at any time by delivering a written notice of resignation,
signed by such director, to the Board of Directors or the Chief Executive
Officer. Unless otherwise specified therein, such resignation shall take effect
upon delivery. Directors need not be stockholders.
Section 2. Vacancies. Any vacancy on the Board of Directors
may be filled in accordance with Section 223 of the General Corporation Law of
the State of Delaware.
Section 3. Duties and Powers. The business of the Company
shall be managed by or under the direction of the Board of Directors which may
exercise all such powers of the Company and do all such lawful acts and things
as are not by statute or by the Restated Certificate of Incorporation or by
these By-Laws directed or required to be exercised or done by the stockholders.
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Section 4. Meetings. The Board of Directors of the Company may
hold meetings, both regular and special, either within or without the State of
Delaware. Each meeting of the Board of Directors shall be chaired by the
Chairman of the Board of Directors, who shall be a director chosen by a majority
of the entire Board, or, in his absence, by the Vice Chairman of the Board of
Directors, if any, who shall also be a director chosen by a majority of the
entire Board, or, in their absence, by such director as shall be chosen by a
majority of the directors in attendance at such meeting. Regular meetings of the
Board of Directors may be held without notice at such time and at such place as
may from time to time be determined by the Board of Directors. Special meetings
of the Board of Directors may be called by the Chairman, the Vice Chairman, the
Chief Executive Officer, the President or any director. Notice thereof stating
the place, date and hour of the meeting shall be given to each director either
by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone or telegram on twenty-four (24) hours' notice, or on such shorter
notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically
provided by law, the Restated Certificate of Incorporation or these By-Laws, at
all meetings of the Board of Directors, a majority of the entire Board of
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 Board of Directors. If a quorum shall not be 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 shall be present.
Section 6. Actions by Consent. Unless otherwise provided by
the Restated 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, by written consent of all the
members of the Board of Directors or such committee, as the case may be, which
consent may be executed in counterparts, and the writing or writings shall be
filed with the minutes of proceedings of the Board of Directors or such
committee.
Section 7. Meetings by Means of Conference Telephone. Unless
otherwise provided by the Restated Certificate of Incorporation or these
By-Laws, members of the Board of Directors of the Company, or any committee
thereof, may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this Section 7 shall constitute
presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by
resolution passed by a majority of the entire Board of Directors, designate one
or more committees, each committee to consist of one or more of the directors of
the Company. 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 any such committee. In the absence or disqualification
of
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a member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any absent or disqualified member. Any committee, to the extent allowed by law
and provided in the resolution establishing such committee or in the charter for
such Committee approved by the Board of Directors from time to time, 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 Company. Each committee shall keep
regular minutes and report to the Board of Directors when appropriate.
Section 9. Compensation. 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 or retainer as director. No such payment shall preclude any
director from serving the Company in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings or acting as chairman of any
committee.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Company shall be
chosen by the Board of Directors and shall include a Chief Executive Officer, a
Secretary and a Treasurer. The Board of Directors, in its discretion, may also
choose one or more other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Restated Certificate of
Incorporation or these By-Laws. The officers of the Company need not be
stockholders of the Company nor need such officers be directors of the Company.
The Chairman of the Board of Directors, in such capacity, shall not be
considered an officer of the Company.
Section 2. Election. The Board of Directors shall elect the
officers of the Company 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; and all officers of the Company shall hold
office until their successors are chosen and qualified, or until their earlier
death, resignation or removal. Subject to the next sentence, any vacancy by
death, resignation, removal or otherwise occurring in any office of the Company
shall be filled by the Board of Directors. The Company's Chief Executive
Officer, and any officer designated by the Chief Executive Officer, may appoint
and remove officers of the Company from time to time; provided, however, that
the following officers can be elected or removed only by the Board of Directors
or its Executive Committee: the Chief Executive Officer, any senior or executive
vice president, the Secretary and the Treasurer.
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Section 3. Voting Securities Owned by the Company. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Company may be executed in the name of and
on behalf of the Company by the Chief Executive Officer, the Treasurer or the
Secretary and any such officer may, in the name of and on behalf of the Company,
take all such action as any such officer may deem advisable to vote in person or
by proxy at any meeting of security holders of any Company in which the Company
may own securities and at any such meeting shall possess and may exercise any
and all rights and powers incident to the ownership of such securities and
which, as the owner thereof, the Company might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
Section 4. Chief Executive Officer. The Chief Executive
Officer shall be the chief executive officer of the Company, shall have general
and active supervision, and plenary power, over all the business and affairs of
the Company, subject to the control of the Board of Directors, shall be
responsible for the general management and direction of all the business and
affairs of the Company to execute, in the name and on behalf of the Company, all
bonds, mortgages, contracts and other instruments of the Company which may be
authorized by the Board of Directors. The Chief Executive Officer shall also
perform such other duties and may exercise such other powers as are incident to
his office or as from time to time may be assigned to him by these By-Laws or by
the Board of Directors.
Section 5. Secretary. The Secretary shall attend all meetings
of the Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for each standing committee when
required by such committee. The Secretary 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, the Chairman of the Board of Directors, or the Chief Executive
Officer. If the Secretary shall be unable or shall refuse to cause to be given
notice of any meeting of the stockholders or special meeting of the Board of
Directors, and if there be no Assistant Secretary, then the Board of Directors,
the Chairman of the Board of Directors, or the Chief Executive Officer may
choose another officer to cause such notice to be given. The Secretary shall
have custody of the seal of the Company and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by the signature
of the Secretary or by the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal
of the Company and to attest the affixing by his signature. The Secretary shall
see that all books, reports, statements, certificates and other documents and
records required by law to be kept or filed are properly kept or filed, as the
case may be. In addition, the Secretary shall, promptly upon receipt of a
request for indemnification from any person pursuant to Section 3 of Article
VIII, advise the Board of Directors in writing of the receipt of such request.
Section 6. Treasurer. Subject at all times to the control of
the Board of Directors and the Chief Executive Officer, the Treasurer shall have
custody of, and be responsible for, the
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corporate funds and securities and shall invest the same in his discretion and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects
in the name and to the credit of the Company in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse the funds of
the Company as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements, and shall render to the Chief Executive Officer or 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 Company. The Treasurer shall perform such
other duties and have such other powers as the Board of Directors or the Chief
Executive Officer from time to time may prescribe.
Section 7. Assistant Secretaries. Except as may be otherwise
provided in these By-Laws, Assistant Secretaries, if there be any, shall perform
such duties and have such powers as from time to time may be assigned to them by
the Board of Directors, the Chief Executive Officer, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the Secretary.
Section 8. Assistant Treasurers. Assistant Treasurers, if
there be any, shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors, the Chief Executive
Officer, or the Treasurer, and in the absence of the Treasurer or in the event
of his disability or refusal to act, shall perform the duties of the Treasurer,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Treasurer.
Section 9. Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Company the power to choose
such other officers and to prescribe their respective duties and powers.
Section 10. Removal and Reassignation; Vacancies. Any officer
maybe removed for or without cause at any time by the Board of Directors. Any
officer may resign at any time by delivering a written notice of resignation,
signed by such officer, to the Board of Directors or the Chief Executive
Officer. Unless otherwise specified therein, such resignation shall take effect
upon delivery.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the
Company shall be entitled to have a certificate signed, in the name of the
Company (i) by the Chief Executive Officer and (ii) by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the Company,
certifying the number of shares owned by him in the Company.
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Section 2. Signatures. Where a certificate is countersigned by
(i) a transfer agent other than the Company or its employee, or (ii) a registrar
other than the Company or its employee, any other signature on the 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 Company with the same effect as
if he or it were such officer. transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may
direct a new certificate to be issued in place of any certificate theretofore
issued by the Company 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, 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 his legal representative, to advertise the same in
such manner as the Board of Directors shall require and/or to give the Company a
bond in such sum as it may direct as indemnity against any claim that may be
made against the Company with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Company shall be
transferable in the manner prescribed by law and in these By-Laws. Transfers of
stock shall be made on the books of the Company only by the person named in the
certificate or by his attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Company may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty days nor less than
ten days before the date of such meeting, nor more than sixty days prior to any
such other corporate 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.
Section 6. Beneficial Owners. The Company 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 for all other
purposes, 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
law.
ARTICLE VI
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NOTICES
Section 1. Notices. Whenever written notice is required by
law, the Restated Certificate of Incorporation or these By-Laws to be given to
any director, member of a committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee or stockholder, at his
address as it appears on the records of the Company, 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. Written notice may also be given
personally or by telegram, facsimile, telex, cable or nationally recognized
overnight courier.
Section 2. Waivers of Notice. Whenever any notice is required
by law, the Restated Certificate of Incorporation or these By-Laws, to be given
to any director, member of a committee or stockholder, a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether before
or after the time stated therein, and, in the case of a waiver of notice of a
meeting, whether or not the business to be transacted at or the purposes of such
meeting is set forth in such waiver, shall be deemed equivalent thereto. The
attendance of any person at any meeting, in person or, in the case of a meeting
of stockholders, by proxy, shall constitute a waiver of notice of such meeting
except where such person attends such meeting for the express purpose of
objecting at the beginning of such meeting to the transaction of any business on
the grounds that such meeting is not duly called or convened.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Company, subject to the provisions of the Restated Certificate of Incorporation,
if any, may be declared by the Board of Directors or the Executive Committee at
any regular or special meeting, and may be paid in cash, in property, or in
shares of capital stock. Before payment of any dividend, there may be set aside
out of any funds of the Company available for dividends such sum or sums as the
Board of Directors or the Executive Committee from time to time, in its absolute
discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Company, or for any proper purpose, and the Board of Directors or the Executive
Committee may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and
notes of the Company shall be signed by such officer or officers or such other
person or persons as may be provided by these By-laws or as the Board of
Directors may from time to time designate or approve.
Section 3. Fiscal Year. The fiscal year of the Company shall
be the calendar year unless otherwise fixed by resolution of the Board of
Directors.
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Section 4. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Company, 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.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings
other Than Those by or in the Right of the Company. Subject to Section 3 of this
Article VIII, the Company shall, to the fullest extent permitted by applicable
law, indemnify any person who was or is a party to (or witness in) or is
threatened to be made a party to (or witness in) any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative. (other than an action or suit by or in the right of the Company)
by reason of the fact that he is or was or has agreed to become a director or
officer of the Company, or is or was a director or officer of the Company
serving (or has agreed to serve) at the request of the Company as a director or
officer, employee, trustee or agent of or in any other capacity with respect to
another Company, partnership, joint venture, trust, employee benefit plan or
other enterprise (in any of the foregoing capacities, a "Representative of the
Company"), or by reason of any action alleged to have been taken or omitted in
such capacity, and may indemnify any person who was or is a party to (or witness
in) or is threatened to be made a party to (or witness in) any such action, suit
or proceeding by reason of the fact that he is or was or has agreed to become an
employee or agent of the Company, or is or was serving (or has agreed to serve)
at the request of the Company as a Representative of the Company, costs,
charges, expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement (collectively, "Expenses") actually and reasonably incurred by him
in connection with such action, suit or proceeding and any appeal therefrom, if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or 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 person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal action or
proceeding, have reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings
by or in the Right of the Company. Subject to Section 3 of this Article VIII,
the Company shall, to the fullest extent permitted by applicable law, indemnify
any person who was or is a party to (or witness in) or is threatened to be made
a party to (or witness in) any threatened, pending or completed action, suit or
proceeding by or in the right of the Company to procure a judgment in its favor
by reason of the fact that he is or was or has agreed to become a director or
officer of the Company, or is or was a director or officer of the Company
serving (or has agreed to serve) at the request of the Company as a
Representative of the Company, or by reason of any action alleged to have been
taken or omitted
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in such capacity, and may indemnify any person who was or is a party to (or
witness in) or is threatened to be made a party to (or witness in) any such
action, suit or proceeding by reason of the fact that he is or was or has agreed
to become an employee or agent of the Company, or is or was an employee or agent
of the Company serving (or has agreed to serve) at the request of the Company as
a Representative of the Company, against Expenses actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company; 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 Company unless
and only to the extent that the Delaware Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such Expenses
which the Delaware Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification; Procedures. Any
indemnification under this Article VIII (unless ordered by a court) shall be
made by the Company only as authorized in the specific case upon a determination
that indemnification of the person seeking indemnification is proper in the
circumstances because he has met the applicable requirements set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. A person,
seeking indemnification under this Article VIII shall submit to the Secretary of
the Company a written request including such documentation and information as is
reasonably available to person and reasonably necessary to determine whether and
to what extent such person is entitled to indemnification (the "Supporting
Documentation"). In the case of indemnification sought pursuant to the first
sentence of subsection (1) of paragraph A of the Sixth Article of the Company's
Restated Certificate of Incorporation ("Mandatory indemnification), such
determination shall be made not later than 60 calendar days after receipt by the
Company of such request together with the Supporting Documentation (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (ii) 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 (iii) by majority
vote of the stockholders. If no such determination has been made within 60
calendar days after receipt by the Company of the request therefor together with
the Supporting Documentation, such person shall be deemed entitled to Mandatory
indemnification, unless (x) such person misrepresented or failed to disclose a
material fact in making the request for indemnification or in the Supporting
Documentation, or (y) such indemnification is prohibited by law. Notwithstanding
the foregoing, to the extent that a director or officer of the Company has been
successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein,
he shall be indemnified against Expenses actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific
case. If a determination shall have been made or deemed to have been made,
pursuant to this Section 3, or pursuant to the preceding sentence is not
required to be made, that any person seeking Mandatory indemnification is
entitled to such indemnification, the Company shall be obligated to pay the
amounts constituting such indemnification within five days after such
determination has been made or deemed to have been made and shall be
conclusively bound by such
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determination unless (A) such person misrepresented or failed to disclose a
material fact in making the request for indemnification or in the Supporting
Documentation or (B) such indemnification is prohibited by law. In the event
that (x) advancement of Expenses is not timely made pursuant to Section 6 or (y)
payment of Mandatory indemnification is not made within five calendar days after
a determination of entitlement to indemnification has been made or deemed to
have been made such person shall be entitled to seek judicial enforcement, in
any court of competent jurisdiction, of the Company's obligations to pay such
advancement of Expenses or Mandatory indemnification. Notwithstanding the
foregoing, the Company may bring an action, in an appropriate court in the State
of Delaware or any other court of competent jurisdiction, contesting the right
of any person to receive Mandatory indemnification hereunder due to the
occurrence of an event or a condition described in subclause (A) or (B) of the
second preceding sentence (a "Disqualifying Event"); provided, however, that in
any such action the Company shall have the burden of proving the occurrence of
such Disqualifying Event.
Section 4. Good Faith Defined. For purposes of any
determination under Section 3 of this Article VIII, a person shall be deemed to
have acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, or, with respect to any criminal
action or proceeding, to have had no reasonable cause to believe his conduct was
unlawful, if his action is based on the records or books of account of the
Company or another enterprise, or on information supplied to him by the officers
of the Company or another enterprise in the course of their duties, or on the
advice of legal counsel for the Company or another enterprise or on information
or records given or reports made to the Company or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Company or another enterprise, unless the
Company shall sustain the burden of proof that such person had actual knowledge
that such records, books of account, information, advice or reports were
incorrect in a material respect. The term "another enterprise" as used in this
Section 4 shall mean any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise of which such person is or was
serving at the request of the Company as a Representative of the Company. The
provisions of this Section 4 shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Sections 1 or 2 of this Article
VIII, as the case may be.
Section 5. Actions for Indemnification. Notwithstanding any
contrary determination in the specific case under Section 3 of this Article
VIII, and notwithstanding the absence of any determination thereunder, any
director or officer shall, after the 60 calendar day period referred to in
Section 3 of this Article VIII has elapsed, be entitled to seek an adjudication
of his entitlement to Mandatory indemnification under this Article VIII either,
at his sole option, in (i) any court of competent jurisdiction in the State of
Delaware or (ii) an arbitration to be conducted by a single arbitrator pursuant
to the then applicable rules of the American Arbitration Association. The basis
of any such indemnification shall be a determination by such court or arbitrator
that indemnification of the director or officer is proper in the circumstances
because he has met the applicable requirements set forth in Sections 1 or 2 of
this Article VIII, as the case may be. It shall
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be a defense to any such adjudication (other than an adjudication brought to
enforce a claim for the advance of Expenses under Section 6 of this Article VIII
where the required undertaking, if any, has been received by the Company) that
the claimant has not met the requirements set forth in Section 1 or 2 of this
Article VIII, but the burden of proving such defense shall be on the Company.
Neither a contrary determination in the specific case under Section 3 of this
Article VIII nor the absence of any determination thereunder shall be a defense
to such claim for indemnification or create a presumption that the director or
officer seeking indemnification has not met any applicable requirement for
Mandatory indemnification. The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 5 that the
procedures and presumptions of this Article VIII are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Article. Notice of any
adjudication for Mandatory indemnification pursuant to this Section 5 shall be
given to the Company promptly upon the filing of the application for such
adjudication. If successful, in whole or in part, the director or officer
seeking Mandatory indemnification shall also be entitled to be paid the expenses
of prosecuting such adjudication.
Section 6. Expenses Payable in Advance. Expenses incurred by a
director or officer in defending or investigating any threatened or pending
action, suit or proceeding shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding within five business days after
the receipt by the Company of a statement or statements from such director or
officer requesting such advance or advances from time to time. Such statement or
statements shall reasonably evidence such Expenses and shall include or be
accompanied by (i) a certificate of such director of officer to the effect that
such person in good faith believes that he is entitled to be indemnified by the
Company pursuant to this Article VIII for such Expenses and (ii) an undertaking
by or on behalf of such director or officer to repay such amount or amounts if
it shall ultimately be determined that he is not entitled to be indemnified by
the Company as authorized in this Article VIII. Such Expenses incurred by other
employees and agents of the Company may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate. The Board of
Directors may authorize the Company's counsel to represent such person in any
action, suit or proceeding, whether or not the Company is a party to such
action, suit or proceeding.
Section 7. Nonexclusivity of indemnification and Advancement
of Expenses. The indemnification and advancement of Expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of Expenses may be
entitled under the Restated Certificate of Incorporation, any By-Law, agreement,
contract, vote of stockholders or disinterested directors or pursuant to the
direction (howsoever embodied) of any court of competent jurisdiction or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Company
that indemnification of the persons specified in Sections 1 and 2 of this
Article VIII shall be made to the fullest extent permitted by law. The
provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 1 or 2 of this
Article VIII but whom the Company has the power or obligation to indemnify under
the provisions of the General Corporation Law of the State of Delaware, or
otherwise.
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Section 8. Insurance. The Company may, to the fullest extent
permitted by applicable law, purchase and maintain insurance on behalf of any
person who is or was or has agreed to become a director, officer, employee or
agent of the Company, or is or was a director, officer, employee or agent of the
Company serving at the request of the Company as a Representative of the Company
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Company would
have the power or the obligation to indemnify him against such liability under
the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this Article
VIII, references to "fines" shall include any excise taxes assessed on or
against a person with respect to any employee benefit plan; and references to
"serving at the request of the Company" shall include any service as a director,
officer, employee or agent of the Company which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries-, and a person who
acted in good faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "in or not opposed to the best interests of the
Company" as referred to in this Article VIII.
Section 10. Survival of indemnification and Advancement of
Expenses Contract Right. The indemnification and advancement of Expenses
provided by, or granted pursuant to, this Article VIII shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person. The indemnification provisions of this Article VIII shall be deemed to
be a contract between the Company and each director, officer, employee and agent
who serves in any such capacity at any time while these provisions are In
effect, and any repeal or modification thereof shall not affect any right or
obligation then existing with respect to any state of facts then or previously
existing or any action, suit or proceeding previously or thereafter brought or
threatened based in whole or in part upon any such state of facts. Such a
"contract right" may not be modified retroactively without the consent of such
director, officer, employee or agent.
Section 11. Limitation on indemnification. Notwithstanding
anything contained in this Article VIII to the contrary, except for proceedings
to enforce rights to indemnification (which shall be governed by Section 5
hereon, the Company shall not be obligated to indemnify any director or officer
in connection with a proceeding (or part thereof) initiated by such person
unless such proceeding (or part thereof) was authorized or consented to by the
Board of Directors of the Company.
Section 12. Severability. If this Article VIII or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Company shall nevertheless indemnify each director or
officer and may indemnify each employee or agent of the Company as to Expenses
with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, including an action by or in the right of the
Company, to the fullest
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extent permitted by any applicable portion of this Article VIII that shall not
have been invalidated and to the fullest extent permitted by applicable law.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. The Board of Directors shall have the
express power, without a vote of stockholders, to adopt any By-Law, and to
amend, alter or repeal these By-Laws, except to the extent that these By-Laws or
the Restated Certificate of Incorporation otherwise provide. The Board of
Directors may exercise such power upon the affirmative vote of a majority of the
entire Board of Directors. Stockholders may not adopt any By-Law, nor amend,
alter or repeal these By-Laws of the Company, except upon the affirmative vote
of the holders of at least a majority of the votes entitled to be cast by the
holders of all then outstanding shares of stock of the Company entitled to vote
generally in the election of directors, voting together as a single class.
ARTICLE X
CONSTRUCTION
Section 1. Construction. In the event of any conflict between
the provisions of these By-Laws as in effect from time to time and the
provisions of the Restated Certificate of Incorporation of the Company as in
effect from time to time, the provisions of such Restated Certificate of
Incorporation shall be controlling.
Section 2. Entire Board of Directors. As used in this Article
X and in these By-Laws generally, the term "entire Board of Directors" means the
total number of directors which the Company would have if there were no
vacancies in the Board of Directors.
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STATEMENT OF DIFFERENCES
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The service mark symbol shall be expressed as.............................. 'sm'
