<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 22, 1995
AMERICAN STORES COMPANY
____________________________________________________________________________
(Exact name of registrant as specified in charter)
Delaware 1-5392 87-0207226
____________________________________________________________________________
(State or other jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
709 East South Temple Street, Salt Lake City, Utah 84102
____________________________________________________________________________
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (801) 539-0112
____________________________________________________________________________
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Item 5. Other Events
At a meeting of the Board of Directors of the Company held on February 22, 1995,
the Board amended the Company's By-laws by adopting a new Section 2.04.1. The
new section limits the business to be conducted at a shareholders meeting to:
(i) the items set forth in the Company's notice of meeting;(ii) matters raised
by or at the direction of the Board of Directors; or (iii) matters raised by a
shareholder that have been properly submitted in advance to the Company's
Secretary. For nomination of directors or other shareholder business to be
properly raised at a meeting, the shareholder must provide the Company's
Secretary with written notice of such nominations for director or other business
not less than 30 or more than 90 days prior to the date the Company's annual
meeting was held in the preceding year (subject to adjustment in cases where the
date of the annual meeting varies significantly from the prior year) and provide
specified information relating to such matters. A copy of the Company's
Restated By-laws as amended is attached hereto as Exhibit 1 and is incorporated
herein by reference, and the foregoing description is qualified in its entirety
by such reference.
At the meeting, the Board of Directors also affirmed its intention to recommend
to shareholders at the 1995 Annual Meeting that the present classification of
the Board of Directors into three classes be eliminated so that as the terms of
the current Directors expire, their successors will be elected for one-year
terms. The Board of Directors also expressed its intent, subject to the
exercise of its fiduciary duties, to allow the Rights Agreement, dated March 18,
1988, as amended, which pertains to the Company's preferred share purchase
rights, to expire in accordance with its terms on March 18, 1998, without
renewal or extension. The Company had received a shareholder proposal for the
1995 Annual Meeting, which has now been withdrawn, requesting the Board of
Directors to allow the Rights Agreement to expire in 1998.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
Exhibit No. Title of Document
3.B Restated By-laws of American Stores
Company, as amended February 22, 1995.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: March 10, 1995
AMERICAN STORES COMPANY
By:
Name: Kathleen E. McDermott
Title: Executive Vice President,
General Counsel and
Assistant Secretary
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EXHIBIT INDEX
Sequentially
Numbered
Exhibit No. Title Page
3.B Restated By-laws of American Stores 5
Company, as amended February 22, 1995
RESTATED BY-LAWS OF AMERICAN STORES COMPANY ARTICLE I OFFICES
Section 1.01. Registered Office. The registered office of the
Company shall be at 100 West Tenth Street, Wilmington, County of New
Castle, Delaware, until otherwise established by a vote of a majority of
the Board of Directors in office, and a statement of such change is filed
in the manner provided by statute.
Section 1.02. Other Offices. The Company may also have offices at such
other places within or without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Company
requires.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01. Place of Meeting. All meetings of the stockholders of
the Company shall be held in Wilmington, Delaware, or at such other place
within or without the State of Delaware as shall be designated by the
Board of Directors in the notice of such meeting.
Section 2.02. Annual Meeting. The Board of Directors may fix the
date and time of the annual meeting of the stockholders, but if no such
date and time is fixed by the Board, the meeting for any calendar year
shall be held at such time and date as the Board of Directors may
determine and at said meeting the stockholders then entitled to vote shall
elect by written ballot directors and shall transact such other business
as may properly be brought before the meeting.
Section 2.03. Special Meetings. Special meetings of the stockholders of
the Company for any purpose or purposes for which meetings may lawfully be
called, may be called at any time for any purpose or purposes by the Board
of Directors or by any person or Committee expressly so authorized by the
Board of Directors and by no other person or persons. At any time, upon
written request of any person or persons who have duly called a special
meeting, which written request shall state the purpose or purposes of the
meeting, it shall be the duty of the Secretary to fix the date of the
meeting to be held at such date and time as the Secretary may fix, not
less than ten nor more than sixty days after the receipt of the request,
and to give due notice thereof. If the Secretary shall neglect or refuse
to fix the time and date of such meeting and give notice thereof, the
person or persons calling the meeting may do so.
Section 2.04. Notice of Meetings. Written notice of the place, date
and hour of every meeting of the stockholders, whether annual or special,
shall be given to each stockholder of record entitled to vote at the
meeting not less than ten nor more than sixty days before the date of the
meeting. Every notice of a special meeting shall state the purpose or
purposes thereof.
Section 2.04.1 Notice of Nominations and Stockholder Business
(1) Annual Meetings of Stockholders.
(a) Nominations of persons for election to the Board of Directors of
the Company and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (a) pursuant
to the
Company's notice of meeting,(b) by or at the direction of the Board of
Directors or (c) by any stockholder of the Company who was a stockholder
of record at the time of giving the notice provided for in this by-law who
is entitled to vote at the meeting and who complies with the notice
procedures set forth in this by-law.
(b) For nominations or other business to be properly brought before
an annual meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the Company and such other
business must otherwise be a proper matter for stockholder action. To be
timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Company not
later than the close of business on the 30th day nor earlier than the
close of business on the 90th day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that
the date of the annual meeting is more than 15 days before or more than 60
days after such anniversary date, notice by the stockholder to be timely
must be so delivered not earlier than the close of business on the 90th
day prior to such annual meeting and not later than the close of business
on the later of the 30th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of such meeting
is first made by the Company. In no event shall the public announcement
of an adjournment of an annual meeting commence a new time period for the
giving of a stockholder's notice as described above. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes
to nominate for election or reelection as a director, all information
relating to such person that is required to be disclosed in solicitations
of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule
14a-11 thereunder (including such person's written consent to being named
in the proxy statement as a nominee and to serving as a director if
elected); (b) as to any other business that the stockholder proposes to
bring before the meeting, a brief description of the business desired to
be brought before the meeting, the reasons for conducting such business at
the meeting and any material interest in such business of such stockholder
and the beneficial owner, if any, on whose behalf the proposal is made;
and (c) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name
and address of such stockholder, as they appear on the Company's books,
and of such beneficial owner and (ii) the class and number of shares of
the Company which are owned beneficially and of record by such stockholder
and such beneficial owner.
(c) Notwithstanding any provision in this by-law to the contrary,
in
the event that the number of directors to be elected to the Board of
Directors of the Company is increased and the Company does not make a
public announcement naming all of the nominees for director or specifying
the size of the increased Board of Directors at least 40 days prior to the
first anniversary of the preceding year's annual meeting, a stockholder's
notice required by this by-law shall also be considered timely, but only
with respect to nominees for any new positions created by such increase,
if it shall be delivered to the Secretary at the principal executive
offices of the Company not later than the close of business on the 10th
day following the day on which such public announcement is first made by
the Company.
(2) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Company's notice of meeting.
(3) General.
(a) Only such persons who are nominated in accordance with the
procedures set forth in this by-law shall be eligible to serve as
directors and only such business shall be conducted at a meeting of
stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in
this bylaw. Except as otherwise provided by law, the Certificate of
Incorporation or these by-laws, the Chairman of the meeting
shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made or proposed, as
the case may be, in accordance with the procedures set forth in this by-law
and, if any proposed nomination or business is not in compliance with this
by-law, to declare that such defective proposal or nomination shall be
disregarded.
(b) For purposes of this by-law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Company with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(c) Notwithstanding the foregoing provisions of this by-law, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to
the matters set
forth in this by-law. Nothing in this by-law shall be deemed to affect
any rights (i) of stockholders to request inclusion of proposals in the
Company's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect directors
under specified circumstances.
Section 2.05. Quorum, Manner of Acting and Adjournment. The holders
of a majority of the stock issued and outstanding (not including treasury
stock) and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for
the transaction of business except as otherwise provided by statute, by
the Certificate of Incorporation or by these by-laws. If, however, such
quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person
or represented by proxy, shall have power to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a
quorum shall be present or represented. At any such adjourned meeting, at
which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. When a quorum is present at any meeting,
the vote of the holders of the majority of the stock having voting power
present in person or represented by proxy shall decide any questions
brought before such meeting, unless the question is one upon which, by
express provision of the applicable statute, the Company's Certificate of
Incorporation or these by-laws, a different vote is required in which case
such express provision shall govern and control the decision of such
question. Except upon those questions governed by the aforesaid express
provisions, the stockholders present in person or by proxy at a duly
organized meeting can continue to do business until adjournment,
notwithstanding withdrawal of enough stockholders to leave less than a
quorum.
Section 2.06. Organization. At every meeting of the stockholders
the Chairman of the Board, if there be one, or in the case of vacancy in
office or absence of the Chairman of the Board, such person as may be
designated by the Board of Directors, or, in the absence of any such
person, one of the following persons present in the order stated: the
Vice Chairmen of the Board, if there be one in their order of rank and
seniority; the President; the Executive Vice Presidents and the Vice
Presidents, in their order of rank and seniority; or a Chairman chosen by
the stockholders entitled to cast a majority of the votes which all
stockholders present in person or by proxy are entitled to cast, shall act
as Chairman, and the Secretary, or, in his absence, an Assistant
Secretary, or in the absence of both the Secretary and Assistant
Secretaries, a person appointed by the Chairman shall act as Secretary.
Section 2.07. Voting: Proxies. Each stockholder shall at every
meeting of the stockholders be entitled to one vote in person or by proxy
for
each share of capital stock having voting power registered in his name on
the books of the Company on the record date for such meeting. All
elections of directors shall be by written ballot. The vote upon any
other matter need not be by ballot. No proxy shall be voted after three
years from its date,
unless the proxy provides for a longer period. Every proxy shall be
executed in writing by the stockholder or by his duly authorized attorney-
in-fact and filed with the Secretary of the Company. A proxy, unless
coupled with an interest, shall be revocable at will, notwithstanding any
other agreement or any provisions
in the proxy to the contrary, but the revocation of a proxy shall not be
effective until notice thereof has been given to the Secretary of the
Company. A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is
an interest in the stock itself or an interest in the Company generally. A
proxy shall not be revoked by the death or incapacity of the maker unless,
before the vote is counted or the authority is exercised, written notice of
such death or incapacity is given to the Secretary of the Company.
Section 2.08. Voting Lists. The officer who has charge of the stock
ledger 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. The list shall be arranged in alphabetical order
showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination
of any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting
either at a place within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
Section 2.09. Inspectors of Election. In advance of any meeting of
stockholders the Board of Directors may appoint inspectors of election, who
need not be stockholders, to act at such meeting or any adjournment
thereof. If inspectors of election are not so appointed, the Chairman of
any such meeting may, and upon the demand of any stockholder or his proxy
at the meeting and before voting begins, shall appoint inspectors of
election. The number of inspectors shall be either one, two or three, as
determined, in the case of inspectors appointed upon demand of a
stockholder, by stockholders present entitled to cast a majority of the
votes which all stockholders present are entitled to cast thereon. No
person who is a candidate for office shall act as an inspector. In case
any person appointed as inspector fails to appear or fails or refuses to
act, the vacancy may be filled by appointment made by the Board of
Directors in advance of the convening of the meeting, or at the meeting by
the Chairman of the meeting.
If inspectors of election are appointed as aforesaid, they shall
determine
the number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies, receive votes or ballots, hear and
determine all challenges and questions in any way arising in connection
with the right to vote, count and tabulate all votes, determine the result,
and do such acts as may be proper to conduct the election or vote with
fairness to all stockholders. If there be three inspectors of election,
the decision, act or certificate of a majority shall be effective in all
respects as the decision, act or certificate of all.
On request of the Chairman of the meeting or of any stockholder or his
proxy, the inspectors shall make a report in writing of any challenge or
question or matter determined by them, and execute a certificate of any
fact found by them.
ARTICLE III
BOARD OF DIRECTORS
Section 3.01. Board Powers. The business and affairs of the Company
shall be managed by or under the direction of the Board of Directors; and
all powers of the Company, except those specifically reserved or granted to
the stockholders by statute, the Certificate of Incorporation or these by-
laws, are hereby granted to and vested in the Board of Directors. The
primary functions of the Board are to select principal senior executives,
evaluate their performance, fix their compensation, oversee the conduct of
the business to evaluate whether it is being managed properly, review the
Company's financial objectives, major plans and major accounting and
auditing issues, and to perform all other functions prescribed by law or
the Certificate of Incorporation.
Section 3.02. Number, Term of Office and Qualification. The Board of
Directors shall consist of such number of directors, not less than five nor
more than twenty, as may be determined from time to time by the Board of
Directors. The Board is divided into three classes, Class I, Class II and
Class III. Such classes shall be as nearly equal in number of directors as
possible. Each director shall serve for a term ending on the third annual
meeting following the annual meeting at which such directors were elected;
provided, however that the directors first elected to Class I shall serve
for a term ending at the annual meeting next following the end of the
fiscal year 1981, the directors first elected to Class II shall serve for a
term ending at the second annual meeting next following the end of the
fiscal year 1981, and the directors first elected to Class III shall serve
for a term ending at the third annual meeting next following the end of the
fiscal year 1981. The foregoing notwithstanding, each
director shall serve until his successor shall have been duly elected and
qualified, unless he shall resign, become disqualified, disabled or shall
otherwise be removed.
At each annual election, the directors chosen to succeed those whose
terms then expire shall be of the same class as the directors they
succeed, unless, by reason of any intervening changes in the authorized
number of directors, the Board shall designate one or more directorships
whose term then expires as directorships of another class in order more
nearly to achieve equality of number of directors among the classes.
Notwithstanding the rule that the three classes shall be as nearly
equal in number of directors as possible, in the event of any change in
the authorized number of directors, each director then continuing to serve
as such shall nevertheless continue as director of the class of which he
is a member until the expiration of his current term, or his prior death,
resignation or removal. If any newly created directorship may, consistent
with the rule that the three classes shall be as nearly equal in number of
directors as possible, be allocated to one or two or more classes, the
Board shall allocate it to that of the available classes whose term of
office is due to expire at the earliest date following such allocation.
All directors of the Company shall be natural persons of full age, but
need to be residents of Delaware or stockholders of the Company.
Section 3.03. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be
filled by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and the directors so chosen shall
hold office until the event of their death, resignation or removal. If
there are no directors in office, then an election of directors may be
held in the manner provided by statute. If, at the time of filling any
vacancy or any newly created directorship, the directors then in office
shall constitute less than a majority of the whole Board of Directors (as
constituted immediately prior to any such increase), the Court of Chancery
may, upon application of any stockholder or stockholders holding at least
ten percent of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election
to be held to fill any
such vacancies or newly created directorships, or to replace the directors
chosen by the directors then in office.
Section 3.04. Resignations. Any director of the Company may resign
at any time by giving written notice to the Chairman of the Board or the
Secretary of the Company. Such resignation shall take effect at the date
of the receipt of such notice or at any later time specified therein and,
unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 3.05. Organization. At every meeting of the Board of
Directors, the Chairman of the Board, if there be one, or, in the case of
a vacancy in the office or absence of the Chairman of the Board, one of
the following officers present in the order stated: the Vice Chairmen of
the Board, if there be one in their order of rank and seniority; the
President; the Executive Vice Presidents or Vice Presidents in their order
of rank and seniority; or a Chairman chosen by a majority of the directors
present, shall preside, and the Secretary, or in his absence, an Assistant
Secretary, or in the absence of the Secretary and the Assistant
Secretaries, any person appointed by the Chairman of the meeting, shall
act as Secretary.
Section 3.06. Place of Meeting. The Board of Directors may hold its
meetings, both regular and special, at such place or places within or
without the State of Delaware as the Chairman of the Board or the Board of
Directors may from time to time determine, or as may be designated in the
notice calling the meeting.
Section 3.07. Organization Meeting. Immediately after each annual
election of directors or other meeting at which the entire Board of
Directors is elected, the newly elected Board of Directors shall meet for
the purpose of organization, election of officers, and the transaction of
other business, at
the
place where said election of directors was held. Notice of such meeting
need not be given. Such organization meeting may be held at any other
time or place which shall be specified in a notice given as hereinafter
provided for special meetings of the Board of Directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 3.08. Regular Meetings. Regular meetings of the Board of
Directors shall be held without notice at such time and at such place as
shall be determined from time to time by the Board of Directors. Notice
of any regular meeting shall be given in the manner prescribed for
special meetings of the Board of Directors.
Section 3.09. Special Meetings. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board of
Directors, the President or on the written request of three or more of
the directors. Notice of each such meeting shall be given to each
director in
writing, or by telephone personally, at least 24 hours before the time
at which the meeting is to be held. Each such notice shall state the time
and place of the meeting to be so held.
Section 3.10. Quorum, Manner of Acting and Adjournment. At all
meetings of the Board of Directors a majority of the total number 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, except as
may be otherwise specifically provided by statute or by the Certificate of
Incorporation. If a quorum shall not be present at any meeting of the
Board of Directors, the 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.
Unless otherwise restricted by the Certificate of Incorporation or
these by laws, any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee thereof may be taken without
a meeting, if all members of the Board or Committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee as the case may be.
Section 3.11. Committees of the Board of Directors. The Board of
Directors may, by a resolution adopted by the Board, designate an
Executive Committee and other committees. Each committee, other than the
Executive Committee, shall consist of two or more directors who shall be
approved by a majority of the whole Board. The Executive Committee shall
consist of three or more directors, one of whom shall be the Chairman of
the Board of the Company. The Board may designate one or more directors
as alternate members of any committee who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member or the alternate or alternates, if any,
designated for such member of any committee, the member or members thereof
present at any meeting and not disqualified, whether or not they
constitute a quorum, may unanimously appoint another director to act at
the meeting in place of any such absent or disqualified member.
The committees of the Board shall have and exercise the authority of the
Board of Directors to the extent provided in the resolution designating
the committee.
No committee of the Board of Directors shall have the authority of
the Board with respect to any of the following actions:
(1) Declaring any dividend;
(2) Authorizing the issuance of any stock of the Company;
(3) Amending the Certificate of Incorporation;
(4) Adopting an agreement of merger or consolidation;
(5) Recommending to the stockholders the sale, lease or exchange of all
or
substantially all of the Company's property and assets;
(6) Recommending to the stockholders a dissolution of the Company or a
revocation of a dissolution; or
(7) Amending the by-laws of the Company.
The provisions of Section 3.09 with respect to the provision of notice for
special meetings shall be applicable to all committees of the Board.
At all meetings of any committee of the Board of Directors, a majority of
the members of the committee shall constitute a quorum for the transaction
of business and the act of a majority of the members of the committee
present at any meeting thereof at which there is a quorum shall be the act
of the committee, except as may be otherwise specifically provided for in
the resolution establishing the committee, or by law or by the Certificate
of Incorporation. If a quorum is not present at any meeting of any
committee of the Board, the committee members 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 3.12. Interested Directors or Officers. No contract or
transaction between the Company and one or more of its directors or
officers, or between the Company and any other Company, partnership,
association, or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall
be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the
Board or committee thereof which authorized the contract or transaction,
or solely because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
(2) The material facts as to his relationship or interest and as to
the
contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the Company as of the
time it is authorized, approved or ratified by the Board of Directors, a
committee thereof, or the stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
Section 3.13. Compensation. Each director who is not also a full-
time active employee of the Company or any subsidiary thereof shall be
paid such compensation for his or her services as a director and shall be
reimbursed for such expenses as may be fixed by the Board of Directors.
ARTICLE IV
NOTICE, WAIVERS, MEETINGS
Section 4.01. Notice, What Constitutes. Whenever, under the
provisions of the statutes or of the Certificate of Incorporation or of
these by-laws, written notice is required to be given to any directors or
stockholder, such notice may be given to such person, either personally or
by sending a copy thereof through
the mail, or by telegraph, facsimile transmission, charges prepaid, to his
address appearing on the books of the Company. If the notice is sent by
mail, by telegraph
or by private delivery service, it shall be deemed to have been given to
the person entitled thereto when deposited in the United States mail or
with a telegraph office or private delivery service for transmission to
such person.
Section 4.02. Waivers of Notice. Whenever any written notice is
required to be given under the provisions of the Certificate of
Incorporation, these by-laws, or by statute, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or
after the time stated therein, shall be deemed equivalent to the giving of
such notice. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders, directors, or
members of a committee of directors need be specified in any written
waiver of notice of such meeting.
Attendance of a person, either in person or by proxy, at any meeting,
shall constitute a waiver of notice of such meeting, except when a person
attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting was
not lawfully called or convened.
Section 4.03. Conference Telephone Meetings.
(a) Policy Statement by the Board of Directors. It is the position of
the Board of Directors that personal attendance at meetings is highly
preferable to attendance via telephone conference and, therefore, that
telephone conferences should be discouraged and used only in limited
circumstances, such as an emergency or when the Chairman of the Board or
the President and Chief Executive Officer feel that it is in the best
interest of the Company to call a meeting (as opposed to postponing or
rescheduling the
meeting) when one or more Directors can be present only by telephone
conference, or where the matters to be discussed are of a routine or
perfunctory nature. Because of the concern for confidentiality and
electronic interference or signal disruption, only "wired" telephones
should be used.
(b) One or more directors may participate in a meeting of the Board,
or of a committee of the Board, by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other and participation in a
meeting pursuant to this section ("b") shall constitute presence in person
at such meeting.
ARTICLE V
OFFICERS
Section 5.01. Number, Qualifications and Designation. The
officers of the Company shall be chosen by the Board of Directors and
shall be a Chairman of the Board, a President and/or Chief Executive
Officer, one or more Executive Vice Presidents, Senior Vice Presidents
and Vice Presidents, a Secretary, a Treasurer, and such other officers
as may be elected in accordance with the provisions of Section 5.03 of
this Article. One person may hold more than one office.
Section 5.02. Election and Term of Office. The officers of the
Company, except those elected by delegated authority pursuant to Section
5.03
of this Article, shall be elected annually by the Board of Directors,
and each such officer shall hold his office until his successor shall
have been elected and qualified, or until his earlier resignation or
removal.
Section 5.03. Subordinate Officers, Committees and Agents. The
Board of Directors may, from time to time, elect such other officers,
employees or
other agents as it deems necessary, who shall hold their offices for such
terms and shall exercise such powers and perform such duties as are
provided in these by-laws, or as the Board of Directors may from time to
time determine. The Board of Directors may delegate to any officer or
committee the power to elect subordinate officers and to retain or appoint
employees or other agents, or committees thereof, and to prescribe the
authority and duties of such subordinate officers, committees, employees
or other agents.
Section 5.04. Resignations. Any officer or agent may resign at any
time by giving written notice to the Board of Directors, or to the
Chairman of
the
Board or the Secretary of the Company. Any such resignation shall take
effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
Section 5.05. Removal. Any officer, committee, employee or other
agent
of the Company may be removed, either for or without cause, by the Board
of Directors or other authority which elected or appointed such officer,
committee or other agent whenever in the judgment of such authority the
best interests of the Company will be served thereby.
Section 5.06. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification, or any other cause, shall be
filled by the Board of Directors or by the officer or committee to which
the power to fill such office has been delegated pursuant to Section 5.03
of this Article, as the case may be, and if the office is one for which
these by-laws prescribe a term, shall be filled for the unexpired portion
of the term.
Section 5.07. General Powers. Except as otherwise provided by law,
the
Certificate of Incorporation or these by-laws, the day-to-day management
of the Company s business and affairs shall be conducted by or under the
supervision of the President and Chief Executive Officer and by those
other
officers and employees to whom management functions are delegated by the
Board of Directors or the President and Chief Executive Officer.
Section 5.08. Corporate Authority. The Chairman of the Board shall,
subject to the control of the Board of Directors, have general and active
supervision of the affairs, business, officers and employees of the
Company. By virtue of his office, the Chairman of the Board shall be a
member of all committees of the Board of Directors or of the Company
except as otherwise specifically provided. He shall, from time to time,
in his discretion or at the order of the Board, submit to the Board
reports of the operations and affairs of the Company. He shall also
perform such other duties and have such other powers as may be assigned to
him from time to time by the Board of Directors.
Section 5.09. The Chairman and Vice Chairmen of the Board. The
Chairman of
the Board shall preside at all meetings of the stockholders and of the
Board of Directors, and shall perform such other duties as may from time
to time be assigned to him by the Board of Directors. The Vice Chairmen
of the Board, if there be one, in their order of rank and seniority, shall
perform such duties as may from time to time be assigned to them by the
Board of Directors, by the Chairman of the Board or these by-laws.
Section 5.10. The President. DELETED IN ITS ENTIRETY.
Section 5.11. The Vice Presidents. The Company may have one or more
Executive
Vice Presidents, Senior Vice Presidents and Vice Presidents having such
duties as from time to time may be determined by the Board of Directors or
by the Chairman of the Board, or by the President and/or Chief Executive
Officer pursuant to Section 5.07.
Section 5.12. The Secretary. The Secretary shall keep full minutes
of all
meetings of the stockholders and of the Board of Directors; shall be
exofficio
Secretary of the Board of Directors; shall attend all meetings of the
stockholders and of the Board of Directors; shall record all the votes of
the stockholders and of the directors and the minutes of the meetings of
the stockholders and of the Board of Directors and of committees of the
Board in a book or books to be kept for that purpose. The Secretary shall
give, or cause to be given, notices of all meetings of the stockholders of
the Company and of the Board of Directors; shall be the custodian of the
seal of the Company and see that it is affixed to all documents to be
executed on behalf of the Company under its seal; shall have responsibility
for the custody and safekeeping of all permanent records and other
documents of the Company; and, in general, shall perform all duties
incident to the office of Secretary and such other duties as may be
prescribed by the Board of Directors or by the Chairman of the Board, under
whose supervision he shall be.
The Board of Directors may elect one or more Assistant Secretaries to
perform such duties as
shall from time to time be assigned to them by the Board of Directors or
the Chairman of the Board.
Section 5.13. The Treasurer. The Treasurer shall have or provide
for the custody of all funds, securities and other property of the Company;
shall collect and receive or provide for the collection or receipt of money
earned by or in any manner due to or received by the Company; shall deposit
or cause to be deposited all said moneys in such banks or other
depositories as the Board of Directors may from time to time designate;
shall make disbursements of Company funds upon appropriate vouchers; shall
keep full and accurate accounts of transactions of his office in books
belonging to the Company; shall, whenever so required by the Board of
Directors, the Executive Committee or an Audit Committee, render an
accounting showing his transactions as Treasurer, and the financial
condition of the Company; and, in general, shall discharge any other duties
as may from time to time be assigned to him by the Board of Directors. The
Board of Directors may elect one or more Assistant Treasurers to perform
the duties of the Treasurer as shall from time to time be assigned to them
by the Board of Directors or the Treasurer.
Section 5.14. The Controller. The Board of Directors may appoint a
Controller who shall maintain full and accurate records of all assets and
liabilities and transactions of the Company, see that adequate audits
thereof are currently and regularly made and, in conjunction with other
officers and department heads, initiate and enforce measures and procedures
whereby the business of the Company shall be conducted with maximum
safeguards, efficiency and economy. He shall make all such records
available for examination when so required by the Board of Directors, the
Executive Committee, or an Audit Committee. He shall perform such other
duties and have such other obligations as may be prescribed by the Board of
Directors or by the Chairman of the Board.
Section 5.15. Officer's Bonds. Any officer shall give a bond for the
faithful discharge of his duties in such sum, if any, and with such surety
or sureties as the Board of Directors shall require. The Company may
obtain such bonds at its expense as the Board of Directors shall require.
Section 5.16. Compensation. The compensation of the officers and
agents of the Company elected by the Board of Directors shall be fixed from
time to time by the Board of Directors or by such committee as may be
designated by the Board of Directors to fix salaries or other compensation
of officers.
ARTICLE VI
CERTIFICATES OF STOCK, TRANSFER, ETC.
Section 6.01. Issuance. The certificates for stock of the Company
shall be numbered and registered in the stock ledger and transfer books
or equivalent records of the Company as they are issued. They shall be
signed by the Chairman of the Board, the President, an Executive Vice
President or a Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer, and shall bear the
corporate seal, which may be a facsimile, engraved or printed. Any of or
all the signatures upon such certificate may be a facsimile, engraved or
printed if such certificate of stock is signed or countersigned by a
transfer agent or by a registrar, which signature may also be a
facsimile. In case any officer, transfer agent or registrar who has
signed, or whose facsimile signature has been placed upon any share
certificate shall have ceased to be such officer, transfer agent or
registrar before the certificate is issued, it may be issued with the
same effect as if he were such officer, transfer agent or registrar at
the date of its issue.
Section 6.02. Transfer. Transfers of shares of stock of the
Company shall be made on the books of the Company upon surrender of the
certificates
therefor, endorsed by the person named in the certificate or by attorney
lawfully constituted in writing. No transfer shall be made inconsistent
with the provisions of the Uniform Commercial Code, Article 8 of Title 5A
of the Delaware Code, and its amendments and supplements.
Section 6.03. Stock Certificates. Stock certificates of the
Company shall be in such form as provided by statute and approved
by the Board of
Directors. The stock record books and the blank stock certificate books
shall be kept by the Secretary or by any agency designated by the Board
of Directors for that purpose.
Section 6.04. Lost, Stolen, Destroyed or Mutilated Certificates.
The
Board of Directors may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by
the Company alleged to have been lost, stolen or destroyed, upon the
making of an affidavit
of the fact by the person claiming the certificate of stock to be lost,
stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such
lost,
stolen or destroyed certificate or certificates, or his legal
representative, 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 6.05. Record Holder of Shares. 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 to
hold liable for calls and assessments a person registered on its books as
the owner of shares, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any
other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
Section 6.06. Determination of Stockholders of Record. 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 nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action.
If no record date is fixed:
(1) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or,
if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held.
(2) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
Only such stockholders as shall be stockholders on the record date
fixed or determined as aforesaid shall be entitled to notice of or to vote
at such meeting or adjournment, 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. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS, ETC.
DELETED IN ITS ENTIRETY.
ARTICLE VIII INSURANCE
DELETED IN ITS ENTIRETY. ARTICLE IX
MISCELLANEOUS
Section 9.01. Corporate Seal. The corporate seal of the Company
shall
have inscribed thereon the name of the Company, the year of its
incorporation and the words "Corporate Seal, Delaware". The seal may
be used by causing it or a facsimile thereof to be impressed or
affixed or otherwise reproduced.
Section 9.02. Checks. All checks, notes, bills of exchange or
other
orders in writing shall be signed by such person or persons as the
Board of Directors, or officer or officers authorized by resolution of
the Board of Directors may, from time to time, designate.
Section 9.03. Contracts. Except as otherwise provided in these
by-
laws, the Board of Directors may authorize any officer or officers
including the Chairman and Vice Chairmen of the Board of Directors, or
any agent or agents, to enter into any contract or to execute or
deliver any instrument on behalf of the Company and such authority may
be general or confined to specific instances.
Section 9.04. Audit. The Board of Directors shall cause the
accounts
and records of the Company and its subsidiaries to be examined and audited
by a firm of independent certified public accountants at least once each
year. The Board of Directors each year shall cause a report of the
financial condition of the Company and its subsidiaries as of the closing
date of the preceding fiscal year to be prepared. Such report shall be in
such form as shall be approved by the Board of Directors and shall be
examined and audited by a firm of independent certified public
accountants.
Section 9.05. Inspection. The books, accounts and records of the
Company shall be open for inspection in person by any member of the Board
of Directors at all times.
Section 9.06. Amendment of by-laws. These by-laws shall not be
made,
repealed, altered, amended or rescinded by the stockholders of the Company
except by the vote of not less than 80% of the total outstanding shares of
common stock as well as a majority of the total outstanding shares of
common stock not held by a Related Person (as defined in Article
Thirteenth of the Certificate of Incorporation) and/or its affiliates.
Nothing contained herein shall detract from the authority of the Board of
Directors to make, alter or repeal the by-laws of the Company (as set
forth in Article 10.03(a) of the Certificate of Incorporation).
