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): September 17, 1996
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
Item 5. Other Events
At a meeting of the Board of Directors of the Company held on September 17,
1996, the Board amended Section 2.04.1(b) of the Company's By-laws, which
requires shareholders to provide the Company with advance notice of their intent
to nominate directors or propose business to be conducted at an annual or
special shareholders' meeting. The amendment increases the minimum advance
notice that shareholders are required to give from at least 30 days prior to the
anniversary date of the prior year's meeting to 60 days. Pursuant to the
amended By-laws, matters to be raised by a shareholder at the Company's 1997
Annual Meeting of Shareholders, other than pursuant to Rule 14a-8 under the
Securities Exchange Act of 1934, as amended, must be submitted to the Company's
Secretary by no later than April 22, 1997 but not prior to March 23, 1997. Such
notices must include the information relating to such business and the
shareholder as well as the information specified in the Company's By-laws. A
copy of the Company's Restated By-laws as amended is attached hereto as Exhibit
3 and is incorporated herein by reference, and the foregoing description is
qualified in its entirety by such reference.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
Exhibit No. Title of Document
3. Restated By-laws of American Stores
Company, as amended September 17, 1996.
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: September 23, 1996
AMERICAN STORES COMPANY
By: /s/ Kathleen E. McDermott
Name Kathleen E. McDermott
Title: Chief Legal Officer and
Assistant Secretary
EXHIBIT INDEX
Sequentially
Numbered
Exhibit No. Title Page
3. Restated By-laws of American Stores 5
Company, as amended September 17, 1996
Exhibit 3.B
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.
Amended Effective September 17, 1996
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 60th 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 30 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 60th 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 70
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 by-law. 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 the Chief Executive Officer and, in consultation with
such Chief Executive Officer, select the other 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.
Each director elected prior to 1995 shall hold office for the term of years for
which that director was elected and until that director's successor is elected
and qualified or until that director's earlier resignation or removal, and each
director elected after January 1, 1995 shall hold office until the next annual
meeting of shareholders and until that director's successor is elected and
qualified or until that director's earlier resignation or removal. All
directors of the Company shall be natural persons of full age.
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 shall consist of two or more directors who
shall be approved by a majority of the whole Board, except that 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.
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, except to the extent
permitted by Section 141(c) of the Delaware General Corporation Law.
(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 ex-officio
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).
