<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_______________________
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 27, 1996
COMMISSION FILE NUMBER 0-23198
INTERIM SERVICES INC.
(Exact name of registrant in its charter)
DELAWARE 36-3536544
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
2050 SPECTRUM BOULEVARD
FORT LAUDERDALE, FLORIDA 33309
(Address of principal executive offices, including zip code)
(954) 938-7600
(Registrant's telephone number, including area code)
_______________________
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months, and (2) has been subject to such filing requirements
for the past 90 days.
Yes ( X ) No ( )
The number of shares outstanding of the registrant's Common Stock, $.0l par
value, at October 25, 1996 was 19,466,899 shares.
<PAGE>
TABLE OF CONTENTS
PAGE
PART I FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Consolidated Statements of Earnings (Unaudited)
Quarters Ended September 27, 1996 and September 29, 1995
Nine Months Ended September 27, 1996 and September 29, 1995..... 1
Consolidated Balance Sheets (Unaudited)
September 27, 1996 and December 29, 1995........................ 2
Consolidated Statements of Cash Flows (Unaudited)
Nine Months Ended September 27, 1996 and September 29, 1995..... 3
Notes to Consolidated Financial Statements (Unaudited)........... 4
ITEM 2.
Management's Discussion and Analysis of Results of Operations
and Financial Condition......................................... 6
PART II OTHER INFORMATION
ITEM 4. -
Matters Submitted to a Vote of Security Holders................ 9
ITEM 6. -
Exhibits........................................................ 10
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
INTERIM SERVICES INC.
CONSOLIDATED STATEMENTS OF EARNINGS
(UNAUDITED, AMOUNTS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
----------------------------- -----------------------------
SEPTEMBER 27, SEPTEMBER 29, SEPTEMBER 27, SEPTEMBER 29,
1996 1995 1996 1995
------------- ------------- ------------- --------------
<S> <C> <C> <C> <C>
Revenues $ 294,711 $ 221,948 $ 840,624 $ 619,044
Cost of services 203,551 155,439 583,783 430,574
------------- ------------- ------------- --------------
Gross profit 91,160 66,509 256,841 188,470
------------- ------------- ------------- --------------
Selling, general and
administrative expenses 62,773 43,719 179,514 126,181
Licensee commissions 10,485 9,442 29,142 27,599
Amortization of intangibles 2,235 1,795 6,572 5,086
Interest expense 1,697 249 5,138 207
Merger expense - - 8,600 -
------------- ------------- ------------- --------------
77,190 55,205 228,966 159,073
------------- ------------- ------------- --------------
EARNINGS BEFORE TAXES 13,970 11,304 27,875 29,397
Income taxes 6,143 4,927 14,905 12,859
------------- ------------- ------------- --------------
NET EARNINGS $ 7,827 $ 6,377 $ 12,970 $ 16,538
------------- ------------- ------------- --------------
------------- ------------- ------------- --------------
NET EARNINGS PER COMMON AND
COMMON EQUIVALENT SHARES $ 0.49 $ 0.41 $ 0.81 $ 1.06
------------- ------------- ------------- --------------
------------- ------------- ------------- --------------
WEIGHTED AVERAGE SHARES
OUTSTANDING 15,958 15,639 15,930 15,652
------------- ------------- ------------- --------------
------------- ------------- ------------- --------------
</TABLE>
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
1
<PAGE>
INTERIM SERVICES INC.
CONSOLIDATED BALANCE SHEETS
(UNAUDITED, AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
SEPTEMBER 27, DECEMBER 29,
1996 1995
------------- ------------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 737 $ 4,025
Marketable securities - 15,675
Receivables, less allowance for doubtful
accounts of $2,650 and $2,176 180,764 143,209
Insurance deposits 53,279 50,686
Other current assets 13,614 9,270
------------- ------------
TOTAL CURRENT ASSETS 248,394 222,865
INTANGIBLE ASSETS, NET 173,233 171,529
PROPERTY AND EQUIPMENT, NET 41,330 27,128
OTHER ASSETS 22,230 20,106
------------- ------------
$ 485,187 $ 441,628
------------- ------------
------------- ------------
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Notes payable to banks $ 63,400 $ 54,727
Accounts payable and other accrued expenses 33,825 25,829
Accrued salaries, wages and payroll taxes 40,340 30,005
Accrued insurance 46,418 43,319
Dividend payable - 372
Accrued income taxes - 1,087
------------- ------------
TOTAL CURRENT LIABILITIES 183,983 155,339
LONG-TERM OBLIGATIONS 60,000 60,000
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Preferred stock, par value $.01 per share;
authorized-- 2,500,000 shares; none issued
or outstanding - -
Common stock, par value $.01 per share;
authorized-- 50,000,000 and 25,000,000 shares
issued and outstanding-- 15,500,295 and
15,376,248 shares respectively 155 154
Additional paid-in capital 87,449 85,121
Unrealized gain on marketable securities - 26
Retained earnings 153,600 140,988
------------- ------------
TOTAL STOCKHOLDERS' EQUITY 241,204 226,289
------------- ------------
$ 485,187 $ 441,628
------------- ------------
------------- ------------
</TABLE>
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
2
<PAGE>
INTERIM SERVICES INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED, AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE NINE MONTHS ENDED
---------------------------------
SEPTEMBER 27, SEPTEMBER 29,
1996 1995
------------- -------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings $ 12,970 $ 16,538
Adjustments to reconcile net earnings to net cash
from operating activities:
Depreciation and amortization 14,016 10,725
Provision for deferred taxes on income (2,366) (135)
Changes in assets and liabilities, net of effects of
acquisitions:
Receivables (37,798) (27,251)
Insurance deposits (2,593) (5,511)
Other current assets (2,224) (1,873)
Other assets (2,828) 903
Accounts payable and accrued expenses 6,610 267
Accrued salaries, wages and payroll taxes 10,299 6,821
Accrued insurance 3,099 1,924
Accrued income taxes (1,087) 557
Other 810 (111)
------------- -------------
NET CASH (USED IN)/PROVIDED BY
OPERATING ACTIVITIES (1,092) 2,854
------------- -------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (22,145) (9,281)
Purchases of marketable securities - (15,129)
Proceeds from sale of marketable securities 15,686 11,276
Decreases in deposits - (11)
Acquisitions, net of cash acquired (6,365) (19,648)
------------- -------------
NET CASH USED IN INVESTING ACTIVITIES (12,824) (32,793)
------------- -------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayments/Issuances of notes payable 8,673 28,427
Transactions of pooled company (267) (793)
Proceeds from exercise of employee stock options 2,222 364
------------- -------------
NET CASH PROVIDED BY FINANCING ACTIVITIES 10,628 27,998
------------- -------------
NET DECREASE IN CASH AND CASH EQUIVALENTS (3,288) (1,941)
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 4,025 6,872
------------- -------------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 737 $ 4,931
------------- -------------
------------- -------------
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Income taxes paid $ 12,360 $ 12,469
------------- -------------
------------- -------------
Interest paid $ 5,616 $ 787
------------- -------------
------------- -------------
</TABLE>
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
3
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. The Consolidated Statements of Earnings for the quarter and nine months
ended September 27, 1996 and September 29, 1995, and the Consolidated
Balance Sheet as of September 27, 1996, and the Consolidated Statements of
Cash Flows for the nine months ended September 27, 1996 and September 29,
1995 have been prepared by the Company, without audit. The Consolidated
Balance Sheet as of December 29, 1995 was derived from audited financial
statements. In the opinion of management, all adjustments (which include
only normal recurring adjustments) necessary to present fairly the
financial position, results of operations and cash flows as of September
27, 1996 and for all periods presented have been made.
These financial statements should be read in conjunction with the Company's
consolidated financial statements and notes thereto included in the
Company's Form S-3 filing on July 29, 1996. These financial statements
give retroactive effect to the merger of Brandon Systems Corporation with
Interim Services Inc. on May 23, 1996 and have become Interim's historical
consolidated financial statements (see footnote 2).
2. The Company completed a merger with Brandon Systems Corporation ("Brandon")
on May 23, 1996, whereby 4,401,146 outstanding shares of Brandon and
235,900 Brandon stock options were exchanged for 3,872,690 shares of
Interim common stock and 207,592 vested Interim stock options (the "Brandon
Merger"). This transaction was accounted for as a pooling-of-interests and
accordingly the historical financial information has been restated for all
periods prior to the Brandon Merger. Certain reclassifications have been
made to Brandon's accounts to conform to the Company's presentation.
Operating results previously reported for the separate companies for
periods prior to the merger are as follows:
Quarters Ended
----------------------------
March 29, March 31,
----------- -----------
1996 1995
----------- -----------
Revenues:
Interim $ 242,414 $ 173,517
Brandon 22,311 20,135
----------- -----------
$ 264,725 $ 193,652
----------- -----------
----------- -----------
Net earnings:
Interim $ 4,245 $ 3,241
Brandon 1,244 1,451
----------- -----------
$ 5,489 $ 4,692
----------- -----------
----------- -----------
Net earnings per share:
Interim $ 0.27 $ 0.21
Brandon 0.08 0.09
----------- -----------
$ 0.35 $ 0.30
----------- -----------
----------- -----------
4
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Cont'd)
All fees and expenses related to the merger and the consolidation of the
combined companies have been expensed as required under the pooling-of-
interests accounting method in the Company's Consolidated Statement of
Earnings for the period ended June 28, 1996. Such fees and expenses are
approximately $8.6 million and consist of investment banking, legal and
accounting fees, severance and benefit related costs and other costs of
consolidating operations.
3. Net earnings per share is based on the weighted average number of shares of
common stock and common stock equivalents outstanding during each period.
As of September 27, 1996, the Company has 15,500,295 shares of common stock
outstanding.
4. On October 18, 1996 the Company completed a public offering of 4,250,000
shares of its $0.01 par value Common Stock (300,000 shares were sold by
certain selling shareholders and 3,950,000 shares were sold by the Company)
at $43.25 per share. Net proceeds to the Company were approximately $163.6
million, of which $131.7 million was used to repay borrowings under the
Company's credit facilities. The balance of the proceeds are being held in
short-term investments and are available for continued growth both
internally and through acquisitions.
5
<PAGE>
ITEM 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
BASIS OF PRESENTATION
The consolidated financial statements include the accounts of Interim and
Brandon Systems Corporation ("Brandon") (a wholly-owned subsidiary of Interim),
collectively referred to as the Company. On May 23, 1996, Brandon became a
wholly-owned subsidiary of Interim. These consolidated financial statements have
been prepared under the pooling-of-interests method of accounting and
accordingly reflect the combined financial position and operating results of
Interim and Brandon for all periods presented. There were no significant
intercompany transactions during the periods covered by these consolidated
financial statements (see footnote 2).
RESULTS OF OPERATIONS
The following analysis of operations for the quarter and nine months ended
September 27, 1996 compared to the quarter and nine months ended September 29,
1995 should be read in conjunction with the Consolidated Statement of Earnings
found on page 1.
QUARTER ENDED SEPTEMBER 27, 1996 COMPARED TO QUARTER ENDED SEPTEMBER 29, 1995
Revenues increased 32.8% to $294.7 million from $221.9 million last year.
Revenues are generated primarily through two operating divisions, Commercial
Services and HealthCare. Commercial Services revenues increased 39.8% reflecting
significant acquisition activity in the Information Technology (IT) service
line, expansion of the On-Premise program and an increase in the number of
offices. HealthCare Division revenues increased 9.1% due to increases in the
number of company-owned offices and expansion of Occupational Health services.
Gross profit increased 37.1% to $91.2 million compared to $66.5 million a year
ago. Increases in cost of services and gross profit are associated with
increase in revenues. Gross profit margin increased to 30.9% from 30.0% last
year principally due to growth in the percentage of revenues being derived from
professional services, a higher margin service, and a lesser percentage of
revenues from commercial staffing services, which have lower gross margins.
Selling, general and administrative expenses increased 43.6% to $62.8 million
from $43.7 million last year. Selling, general and administrative expenses as a
percentage of revenues were 21.3% compared to 19.7% a year ago. Operating
expenses increased due to the higher costs associated with our professional
services group, IT, accounting, legal and search which have higher gross margins
and higher operating expenses.
6
<PAGE>
RESULTS OF OPERATIONS (Cont'd)
Licensee commissions increased 11.0% to $10.5 million from $9.4 million last
year. Licensee commissions as a percent of revenues decreased to 3.6% from 4.3%
due to branch revenues growing at a faster rate than licensee revenue, caused in
part by a large licensee converting to a franchise in the first quarter of 1996.
Amortization expense increased from $1.8 million to $2.2 million reflecting an
increase in intangible assets arising from acquisitions.
The effective tax rate for the third quarter of 1996 was 44.0% compared to 43.6%
last year. The increase in the effective tax rate is due primarily to growth in
high tax states predominantly associated with Brandon operations.
Net earnings for the quarter were up 22.7% to $7.8 million, or $0.49 per share,
compared to $6.4 million, or $0.41 per share last year, representing a 20.3%
increase in per share earnings. The weighted average number of shares
outstanding was 15,958,000 compared to 15,639,000 last year.
NINE MONTHS ENDED SEPTEMBER 27, 1996 COMPARED TO NINE MONTHS ENDED SEPTEMBER 29,
1995
Revenues increased 35.8% to $840.6 million from $619.0 million last year.
Revenues are generated primarily through two operating divisions, Commercial
Services and HealthCare. Commercial Services revenues increased 43.3% reflecting
significant acquisition activity and growth in the Information Technology (IT)
service line, expansion of the On-Premise program and an increase in the number
of offices. HealthCare Division revenues increased 12.5% due to increases in the
number of offices and expansion of Occupational Health services.
Gross profit increased 36.3% to $256.8 million compared to $188.5 million a
year ago. The increases in cost of services and gross profit are associated
with increases in revenues. Gross profit margin increased to 30.6% from 30.4%
last year principally due to a greater percentage of revenues being derived from
higher margin professional services and a lesser percentage of commercial
staffing revenues which are lower gross margin services.
Selling, general and administrative expenses increased 42.3% to $179.5 million
from $126.1 million last year. Selling, general and administrative expenses as a
percentage of revenues were 21.4% compared to 20.4% a year ago. Operating
expenses increased due to the higher costs associated with our professional
services group, IT, accounting, legal and search which have higher gross margins
and higher operating expenses.
7
<PAGE>
RESULTS OF OPERATIONS (Cont'd)
Licensee commissions increased to $29.1 million from $27.6 million last year.
The increase in commissions is due to increased revenues by existing licensees.
Amortization expenses increased from $5.1 to $6.6 million, reflecting an
increase in intangible assets arising from acquisitions.
Interest expense increased due to increased borrowings during the period (see
Financial Condition).
The effective tax rate of 53.5% for the first nine months of 1996 results from a
large portion of merger costs being non-deductible. The effective tax rate,
excluding the effects of non recurring merger charges, was unchanged at 43.7%
versus last year.
The Company reported net earnings of $13.0 million, or $0.81 per share after
recognizing merger costs associated with the Brandon merger. The merger costs
of $8.6 million reduced net earnings by $7.6 million, net of tax, or $0.48 per
share. Excluding the effects of non recurring merger charges, net earnings for
the nine months were up 24.1% to $20.5 million, or $1.29 per share, compared to
$16.5 million, or $1.06 per share last year, representing a 20.8% increase in
per share earnings. The weighted average number of shares outstanding was
15,930,000 compared to 15,652,000 last year.
FINANCIAL CONDITION
These comments should be read in conjunction with the Consolidated Balance
Sheets and Consolidated Statements of Cash Flows found on pages 2 and 3,
respectively.
Working capital including effects of acquisitions decreased from $67.5 million
at December 29, 1995 to $64.4 million at September 27, 1996. The working
capital ratio was 1.4 at September 27, 1996 and at the end of 1995 After the
merger with Brandon, the Company sold marketable securities and utilized
proceeds to pay down debt, however, merger-related costs and increased
receivables related to strong revenue growth during the period resulted in a net
increase of $9.5 million in short-term debt in the nine months ended September
27, 1996. Additionally, the Company used $22.1 million primarily for capital
expenditures related to computer hardware and software for field and
corporate operations and construction in progress for the expansion of the
Corporate Service Center.
The Company believes that its internally generated funds and lines of credit are
sufficient to support anticipated levels of growth.
SUBSEQUENT EVENT
On October 18, 1996, the Company completed a secondary offering of 4.25 million
shares of its $0.01 par value Common Stock at $43.25 per share. Net proceeds to
the Company were approximately $163.6 million, of which $ 131.7 million was used
to repay borrowings under the Company's credit facilities. The balance of the
proceeds are being held in short-term investments and are available for
continued growth both internally and through acquisitions.
8
<PAGE>
PART II - OTHER INFORMATION
ITEM 4. - MATTERS SUBMITTED TO A VOTE OF SECURITY HOLDERS
(a) A Special Meeting of stockholders of the Company was held on September
9, 1996.
(c) (1) At the Special Meeting held on September 9, 1996, stockholders voted
upon a proposal to amend the Company's Restated Certificate of Incorporation
to increase the number of authorized shares of Common Stock from 25,000,000
to 50,000,000.
Votes For Votes Against Abstentions
--------- ------------- -----------
13,691,902 574,748 18,554
(c) (2) At the Special Meeting held on September 9, 1996, stockholders voted
upon a proposal to amend the Restated Certificate of Incorporation of the
Company to effectively reduce the vote required to amend the number and type
of authorized shares of stock of the Company from a 2/3 vote to a majority
vote of the outstanding shares of stock of the company entitled to vote.
Votes For Votes Against Abstentions
---------- ------------- -----------
11,204,727 597,010 446,543
9
<PAGE>
ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS
EXHIBIT
NUMBER EXHIBIT NAME NOTE
2.1 Agreement and Plan of Merger (1)
3.1 Restated Certificate of Incorporation of Registrant,
as amended *
3.2 By-Laws of Registrant, as amended *
4.1 Rights Agreement dated as of April 1, 1994, between
Interim Services and Boatmen's Trust Company (3)
4.1A Amendment No. 1 to Rights Agreement dated as of April 1,
1994 *
4.2 Form of Certificate of Designations, Preferences and
Rights of Participating Preferred Stock of Interim
Services (3)
4.3 Form of Stock Certificate(4)
4.4 Articles Fourth, Fifth, Seventh, Eighth and Tenth of the
Restated Certificate of Incorporation of the Company (10)
4.5 Sections Four through Twelve and Thirty-Five through
Forty-One of the Bylaws of the Company (10)
10.1 Interim Services' 1993 Long-Term Executive Compensation
Plan, as amended (5)
10.2 Interim Services' 1993 Stock Option Plan for Outside
Directors, as amended (5)
10.3 Revolving Credit Agreement of Interim Services dated as
of April 6, 1994, as replaced by the Amended and Restated
Revolving Credit Agreement of Interim Services dated as
of June 2, 1995 (6)
10.4 Tax Sharing Agreement dated October 1993, by and between
H&R Block, Inc. and Interim Services (2)
10.5 Amendment No. 2 dated November 28, 1995 to Amended and
Restated Revolving Credit Agreement of Interim Services
dated as of June 2, 1995. (7)
10.6 Indemnification Agreement dated January 1, 1994, by and
between Interim Services and H&R Block, Inc. (2)
10.7 Franchise/License Agreement dated July 12, 1993, by and
between Interim Services and Keco Health Care, Inc. (2)
10.8 Interim Services' 1994 Stock Option Plan for Franchisees,
Licensees and Agents, as amended (8)
10.9 Employment Agreement dated as of May 1, 1994, by and
between Interim Services and Ray Marcy (6)
10.10 Employment, Confidentiality, and Noncompetition Agreement
by and between Interim Services and Allan Sorensen (6)
11 Statement re: Computation of Per Share Earnings Page 12
19 Form S-3 Registration Statement under the Securities Act
of 1933 (9)
22 Published report regarding matters submitted to vote of
security holders None
23.1 Consent of Bryan Cave LLP (10)
23.2 Consent of Deloitte & Touche LLP (9)
27 Financial Data Schedule
10
<PAGE>
(1) This Exhibit is filed as an Exhibit to Interim Services' Proxy
Statement/Prospectus, dated April 24, 1996, and is incorporated herein by
reference.
(2) This Exhibit is filed as an Exhibit to Interim Services' Form S-1,
Amendment No. 2, dated January 12, 1994, SEC Registration No. 33-71338, and is
incorporated herein by reference.
(3) This Exhibit is filed as an Exhibit to Interim Services' Form 8-A, dated
April 11, 1994, SEC Registration No. 0-23198, and is incorporated herein by
reference.
(4) This Exhibit is filed as an Exhibit to Interim Services' Form 10-K for the
fiscal year ended March 25, 1994, and is incorporated herein by reference.
(5) This Exhibit is filed as an Exhibit to Interim Services' Proxy Statement
dated March 28, 1996 and filed in connection with Interim Services' 1996 Annual
Meeting, and is incorporated herein by reference.
(6) This Exhibit is filed as an Exhibit to Interim Services' Form 10-K for the
twelve month period ended December 30, 1994, and is incorporated herein by
reference.
(7) This Exhibit is filed as an Exhibit to Interim Services' Form 8-K dated
December 15, 1995, and is incorporated herein by reference.
(8) This Exhibit is filed as an Exhibit to Interim Services' Form S-3, as filed
with the SEC on July 12, 1995, and is incorporated herein by reference.
(9) This Exhibit is filed as an Exhibit to Interim Services' Form S-3 as
filed with the SEC on July 29, 1996, Registration No. 333-09109 and is
incorporated herein by reference.
(10) This Exhibit is filed as an Exhibit to Interim Services' Form S-3,
Amendment No. 1, dated September 16, 1996, and is incorporated herein
by reference.
* Filed herewith
11
<PAGE>
EXHIBIT 11
CALCULATION OF PRIMARY NET EARNINGS PER COMMON AND COMMON EQUIVALENT SHARE
<TABLE>
<CAPTION>
Quarter Ended Nine Months Ended
---------------------------- ----------------------------
September 27, September 29, September 27, September 29,
1996 1995 1996 1995
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Net earnings per common and common
equivalent share $ 7,827,000 $ 6,377,000 $ 12,970,000 $ 16,538,000
------------ ------------ ------------- -------------
------------ ------------ ------------- -------------
Average number of shares outstanding -
primary:
Average number of common shares
outstanding 15,482,000 15,422,000 15,433,000 15,414,000
Dilutive effect of stock options after
application of treasury stock method 476,000 217,000 497,000 238,000
------------ ------------ ------------- -------------
Average number of shares outstanding 15,958,000 15,639,000 15,930,000 15,652,000
------------ ------------ ------------- -------------
------------ ------------ ------------- -------------
Earnings per share:
Primary $ 0.49 $ 0.41 $ 0.81 $ 1.06
------------ ------------ ------------- -------------
------------ ------------ ------------- -------------
</TABLE>
CALCULATION OF FULLY DILUTED NET EARNINGS PER COMMON AND COMMON EQUIVALENT SHARE
<TABLE>
<CAPTION>
Quarter Ended Nine Months Ended
---------------------------- ----------------------------
September 27, September 29, September 27, September 29,
1996 1995 1996 1995
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Net earnings per common and common
equivalent share $ 7,827,000 $ 6,377,000 $ 12,970,000 $ 16,538,000
------------ ------------ ------------- -------------
------------ ------------ ------------- -------------
Shares used in calculating fully-diluted earnings
per share:
Average number of common shares
outstanding fully-diluted 15,482,000 15,422,000 15,433,000 15,414,000
Additional effect of stock options after
application of treasury stock method 521,000 259,000 523,000 262,000
------------ ------------ ------------- -------------
Average number of shares outstanding 16,003,000 15,681,000 15,956,000 15,676,000
------------ ------------ ------------- -------------
------------ ------------ ------------- -------------
Earnings per share:
Fully-diluted $ 0.49 $ 0.41 $ 0.81 $ 1.06
------------ ------------ ------------- -------------
------------ ------------ ------------- -------------
</TABLE>
12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of l934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
INTERIM SERVICES INC.
--------------------------
(Registrant)
DATE 11/ 11 / 96 BY /s/ Roy G. Krause
--------------------
Roy G. Krause
Executive Vice President
and Chief Financial Officer
DATE 11/ 11/ 96
BY /s/ Paul Haggard
-------------------
Paul Haggard
Financial Vice President/Treasurer
13
<PAGE>
Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION OF
INTERIM SERVICES INC.
Interim Services Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), pursuant to the provisions of
the General Corporation Law of the State of Delaware (the "DGCL"), DOES HEREBY
CERTIFY as follows:
FIRST: The Restated Certificate of Incorporation of the Corporation is
hereby amended by deleting the first paragraph and subparagraph (i) of ARTICLE
FOURTH of the Restated Certificate of Incorporation in their present form and
substituting therefor a new first paragraph and subparagraph (i) of ARTICLE
FOURTH in the following form:
FOURTH: The aggregate number of shares of all classes of stock
that the Corporation shall have authority to issue is 52,500,000
divided into two classes as follows:
(i) 50,000,000 shares of a class designated Common Stock, with a
par value of $0.01 per share; and
SECOND: The Restated Certificate of Incorporation of the Corporation is
hereby amended by deleting ARTICLE TENTH of the Restated Certificate of
Incorporation in its present form and substituting therefor a new ARTICLE TENTH
in the following form:
TENTH: The affirmative vote of the holders of not less than 2/3
of the outstanding shares of stock of the Corporation entitled to
vote generally in the election of directors shall be required to
amend, modify, alter or repeal Articles Fifth, Eighth and Tenth
of this Restated Certificate of Incorporation or any provision of
the Corporation's Bylaws.
THIRD: The Amendment to the Restated Certificate of Incorporation of the
Corporation set forth in this Certificate of Amendment has been duly adopted in
accordance with the provisions of Section 242 of the DGCL by (a) the Board of
Directors of the Corporation having duly adopted a resolution setting forth such
Amendment and declaring its advisability and submitting it to the stockholders
of the Corporation for their approval, and (b) the stockholders of the
Corporation having duly adopted such Amendment by vote of the holders of two-
thirds of the outstanding stock entitled to vote thereon at a Special Meeting of
Stockholders called and held upon notice in accordance with Section 222 of the
DGCL.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by Raymond Marcy, its President and Chief Executive
Officer, and attested by John B. Smith, its Secretary this 10th day of
September, 1996.
INTERIM SERVICES INC.
By: /s/ Raymond Marcy
---------------------------------------
Raymond Marcy
President and Chief Executive Officer
ATTEST:
/s/ John B. Smith
- -----------------------
John B. Smith
Secretary
<PAGE>
RESTATED CERTIFICATE
OF
INCORPORATION
OF
INTERIM SERVICES INC.
----------------------------------------
PURSUANT TO SECTIONS 228, 242, AND 245
OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
----------------------------------------
INTERIM SERVICES INC., a Delaware corporation (the "Corporation",
organized on September 15, 1987, under the name Interim Systems Corporation,
does hereby amend and restate its Restated Certificate of Incorporation to read
in its entirety as follows:
FIRST: The name of the Corporation is Interim Services Inc.
(hereafter, the "Corporation").
SECOND: The address of the registered office of the Corporation
in the State of Delaware is 32 Loockerman Square, Suite L-100, Dover,
Kent County, Delaware 19901. The name of the registered agent at that
address is The Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which a corporation may be organized under the
General Corporation Law of the State of Delaware (the "GCL").
FOURTH: The aggregate number of shares of all classes of stock
that the Corporation shall have authority to issue is 27,500,000,
divided into two classes as follows:
(i) 25,000,000 shares of a class designated Common Stock with a
par value of $0.01 per share; and
(ii) 2,500,000 shares of a class designated Preferred Stock with
a par value of $.01 per share.
<PAGE>
The voting powers, designations, preferences, qualifications,
limitations, restrictions and special or relative rights in respect of
each class of stock are or shall be fixed as follows:
(1) PREFERRED STOCK. The Board of Directors is expressly
authorized to issue the Preferred Stock from time to time, in one or
more series, provided that the aggregate number of shares issued and
outstanding at any time of all such series shall not exceed 2,500,000.
The Board of Directors is further authorized to fix or alter by
resolution or resolutions, in respect of each such series, the
following terms and provisions of any authorized and unissued shares
of such stock:
(a) The distinctive serial designation;
(b) The number of shares of the series, which number may at any
time or from time to time by increased or decreased (but not below the
number of shares of such series then outstanding) by the Board of
Directors;
(c) The voting powers and, if voting powers are granted, the
extent of such voting powers including the right, if any, to elect a
director or directors;
(d) The election, term of office, filling of vacancies and other
terms of the directorships of directors elected by the holders of any
one or more classes or series of such stock;
(e) The dividend rights, including the dividend rate and the
dates on which any dividends shall be payable;
(f) The date from which dividends on shares issued prior to the
date for payment of the first dividend thereon shall be cumulative, if
any;
(g) The redemption price, terms of redemption, and the amount of
and provisions regarding any sinking fund for the purchase or
redemption thereof;
(h) The liquidation preference and the amounts payable on
dissolution or liquidation;
(i) The terms and conditions, if any, under which shares of the
series may be converted; and
2
<PAGE>
(j) Any other terms or provisions that the Board of Directors is
by law authorized to fix or alter.
(2) COMMON STOCK. The holders of shares of Common Stock shall
be entitled (i) to vote on all matters at all meetings of the
shareholders of the Corporation on the basis of one vote for each
share of Common Stock held of record; (ii) subject to any preferential
dividend rights applicable to the Preferred Stock, to receive such
dividends as may be declared by the Board of Directors; and (iii) in
the event of the voluntary, or involuntary, liquidation or winding up
of the Corporation, after distribution in full of any preferential
amounts to be distributed to holders of shares of Preferred Stock, to
receive all of the remaining assets of the Corporation available for
distribution to its shareholders, ratably in proportion to the
aggregate number of their shares of Common Stock and Preferred Stock
(if the holders of such Preferred Stock are entitled to share in such
distribution).
(3) PROVISIONS APPLICABLE TO COMMON AND PREFERRED STOCK. No
holder of shares of any class of stock of the Corporation shall be
entitled, as a matter of right, to purchase or subscribe for any
shares of any class of stock of the Corporation, whether now or
hereafter authorized. The Board of Directors shall have authority to
fix the issue price of any and all shares of any class of stock of the
Corporation.
FIFTH: (A) NUMBER OF DIRECTORS. The number of directors to
constitute the Board of Directors shall be such number as fixed by a
resolution adopted by the affirmative vote of a majority vote of the
whole Board of Directors, but to be nine until otherwise determined.
(B) CLASSIFICATION OF DIRECTORS. Pursuant to an action taken by
the shareholders of the Corporation either at a special meeting of the
shareholders of the Corporation in 1993 or pursuant to a consent in
lieu thereof of the shareholders of the Corporation in accordance with
Section 228 of the GCL, the directors of the Corporation shall be
divided into three classes: Class I, Class II and Class III.
Membership in such classes shall be as nearly equal as possible and
any increase or
3
<PAGE>
decrease in the number of directors shall be apportioned by the Board of
Directors among the classes to maintain the number of directors as nearly
equal as possible. The initial Class I directors shall hold office until
the annual meeting of shareholders of the Corporation in 1994, the initial
Class II directors shall hold office until the annual meeting of
shareholders of the Corporation in 1995, and the initial Class III
directors shall hold office until the annual meeting of shareholders of the
Corporation in 1996 or, in each case, until their successors are elected
and qualified and subject to prior death, resignation, retirement or
removal from office. Beginning in 1994, at each annual meeting of
shareholders, the directors elected to succeed those whose terms then
expire shall belong to the same class as the directors they succeed and
shall hold office until the third succeeding annual meeting of shareholders
or until their successors are elected and qualified and subject to the
prior death, resignation, retirement or removal from office of a director.
No decrease in the number of directors constituting the Board of Directors
shall reduce the term of any incumbent director.
Whenever the holders of any one or more classes or series of
Preferred Stock of the Corporation shall have the right to elect
directors, the election, term of office, filling of vacancies and
other terms of such directorships shall be governed by the provisions
of this Certificate of Incorporation applicable to such Preferred
Stock and such directors shall not be divided into classes pursuant to
this Article Fifth unless expressly provided or determined as provided
elsewhere in this Certificate of Incorporation.
(C) VACANCIES. Newly created directorships resulting from an
increase in the number of directors and any vacancies on the Board of
Directors resulting from any cause shall be filled by a majority of
the Board of Directors then in office, although less than a quorum, or
by a sole remaining director. Any director elected to fill a vacancy
not resulting from an increase in the number of directors shall have
the same remaining term as his or her predecessor.
(D) REMOVAL OF DIRECTORS. The entire Board of Directors of the
corporation may be removed at any time but only by the affirmative
vote of the
4
<PAGE>
holders of two-thirds or more of the outstanding shares of each class of
stock of the corporation entitled to elect one or more directors at a
meeting of the shareholders called for such purpose.
(E) BYLAWS. The Board of Directors shall have the power to
make, alter, amend, change, add to or repeal the Bylaws of the
corporation.
SIXTH: (A) The Corporation shall indemnify to the fullest
extent authorized or permitted by law (as now or hereafter in effect)
any person made, or threatened to be made a party or witness to any
action, suit or proceeding (whether civil or criminal or by or in the
right of the Corporation) by reason of the fact that he, his testator
or intestate, is or was a director or officer of the Corporation or by
reason of the fact that such director or officer, at the request of
the Corporation, is or was serving any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, in
any capacity. Nothing contained herein shall affect any rights to
indemnification to which employees other than directors and officers
may be entitled by law. No amendment to or repeal of this paragraph
(A) of Article Sixth shall apply to or have any effect on any right to
indemnification provided hereunder with respect to any acts or
omissions occurring prior to such amendment or repeal.
(B) No director or shareholder of the Corporation shall be
personally liable to the Corporation or its shareholders for monetary
damages for any breach of fiduciary duty as a director.
Notwithstanding the foregoing sentence, a director shall be liable to
the extent provided by applicable law (i) for any breach of the
director's duty of loyalty to the Corporation or its shareholder, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the GCL or (iv) for any transaction from which such director
derived an improper personal benefit. No amendment to or repeal of
this paragraph (B) of Article Sixth shall adversely affect any right
or protection of any director of the Corporation existing at the time
of such amendment to repeal for or with respect to any
5
<PAGE>
acts or omissions of such director occurring prior to such amendment or
repeal.
SEVENTH: In the event any class of stock of the Corporation is
registered pursuant to the Securities Exchange Act of 1934, as
amended, for so long as such class of stock of the Corporation is so
registered, any action that may be taken at any annual or special
meeting of the shareholders of the Corporation shall be taken only at
an annual or special meeting of the shareholders of the Corporation
and no such action shall be taken without such a meeting, regardless
of any provision of the GCL that permits shareholders to take such an
action by written consent in lieu of an annual or special meeting of
shareholders.
EIGHTH: Special meetings of the shareholders for any lawful
purpose or purposes may be called at any time only by a majority of
the Board of Directors, by the Chairman of the Board or by the
President. Each call for a special meeting of the shareholders shall
state the time, the day, the place and the purpose or purposes of such
meeting and shall be in writing, signed by the persons making the same
and delivered to the secretary. No business shall be conducted at any
special meeting of the shareholders other than the business stated in
the call for such meeting. The shareholders of the Corporation shall
not be entitled, as a matter of right, to require the Board of
Directors to call a special meeting of the shareholders or to bring
any business before a special meeting of the shareholders.
NINTH: The Corporation reserves he right to amend, alter, change
or repeal any provision contained in this Restated Certificate of
Incorporation, or any amendment thereof, in the manner now or
hereafter prescribed by the GCL or this Restated Certification of
Incorporation.
TENTH: The affirmative vote of the holders of not less than 2/3
of the outstanding shares of stock of the Corporation entitled to vote
generally in the election of directors shall be required to amend,
modify, alter or repeal Articles Fourth, Fifth, Eighth and Tenth of
this Restated Certificate of Incorporation or any provision of the
Corporation's Bylaws.
6
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be duly adopted by H & R Block Group, Inc., a
Delaware corporation, and the sole shareholder of the Corporation, pursuant to
Section 228, and in accordance with the provisions of Sections 242 and 245, of
the General Corporation Law of the State of Delaware and to be executed in its
corporate name this 27 day of October, 1993.
INTERIM SERVICES INC.
By /s/ Allan C. Sorensen
--------------------------
Chairman of the Board
ATTEST:
By: /s/ John B. Smith
---------------------
Secretary
<PAGE>
BY-LAWS
OF
INTERIM SERVICES INC.
(ADOPTED JANUARY 23, 1991)
(ADOPTED MARCH 9, 1992)
(ADOPTED NOVEMBER 19, 1992)
(ADOPTED OCTOBER 18, 1993)
(ADOPTED OCTOBER 10, 1994)
OFFICES
1. REGISTERED OFFICE AND REGISTERED AGENT. The location of the
registered office and the name of the registered agent of the corporation in the
state of Delaware shall be such as shall be determined from time-to-time by the
Board of Directors and on file in the appropriate public offices of the state of
Delaware pursuant to applicable provisions of law.
2. CORPORATE OFFICES. The corporation may have such other corporate
offices and places of business anywhere within or without the state of Delaware
as the Board of Directors may from time-to-time designate or the business of the
corporation may require. Unless otherwise specified, the terms "office" or
office of the corporation" shall mean the office at which the president is
customarily located.
SEAL
3. CORPORATE SEAL. The corporate seal shall have inscribed thereon the
name of the corporation and the words "Corporate Seal, Delaware." The corporate
seal may be used by causing it or a facsimile thereof to be impressed, affixed,
reproduced or otherwise.
MEETING OF STOCKHOLDERS
4. PLACE OF MEETINGS. All meetings of the stockholders shall be held at
the office of the corporation or at such other place either within or without
the state of Delaware as shall be designated from time-to-time by the Board of
Directors and stated in the notice of the meeting or in a duly executed waiver
of notice thereof.
5. ANNUAL MEETING. (AMENDED OCTOBER 10, 1994.) The annual meeting of
the stockholders of the corporation shall be held on the second Thursday of
May of each year, commencing in 1995, if not a legal holiday, and if a legal
holiday, then on the next secular day following, at ten o'clock (10:00 a.m.) in
the morning of that day, or at such other date and time as shall be determined
by the Board of Directors and stated in the notice of the meeting, at which
directors shall be elected and such other business shall be transacted as may be
properly brought before the meeting.
<PAGE>
AT AN ANNUAL MEETING OF THE STOCKHOLDERS, ONLY SUCH BUSINESS SHALL
CONDUCTED AS SHALL HAVE BEEN PROPERLY BROUGHT BEFORE THE MEETING. TO BE
PROPERLY BROUGHT BEFORE AN ANNUAL MEETING, BUSINESS MUST BE SPECIFIED IN THE
NOTICE OF MEETING (OR ANY SUPPLEMENT THERETO) GIVEN BY OR AT THE DIRECTION OF
THE BOARD OIL DIRECTORS OR OTHERWISE PROPERLY BROUGHT BEFORE THE MEETING BY A
STOCKHOLDER IN ADDITION TO ANY OTHER APPLICABLE REQUIREMENTS, FOR BUSINESS
(INCLUDING, WITHOUT LIMITATION, THE NOMINATION OF CANDIDATES FOR THE BOARD OF
DIRECTORS) TO BE PROPERLY BROUGHT BEFORE AN ANNUAL MEETING BY A STOCKHOLDER, THE
STOCKHOLDER MUST HAVE GIVEN TIMELY NOTICE THEREOF IN WRITING TO THE SECRETARY.
TO BE DIRECTLY, SUCH NOTICE MUST DELIVERED TO OR MAILED AND RECEIVED AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION NOT LESS THAN FIFTY DAYS NOR MORE
THAN SEVENTY-FIVE DAYS PRIOR TO THE MEETING; PROVIDED, HOWEVER, THAT IF FEWER
THAN SIXTY-FIVE DAYS' NOTICE OR PRIOR PUBLIC DISCLOSURE OF THE DATE OF THE
MEETING IS GIVEN OR MADE TO STOCKHOLDERS, NOTICE BY THE, STOCKHOLDER TO BE
TIMELY MUST BE SO RECEIVED NOT LATER THAN THE CLOSE OF BUSINESS ON THE FIFTEENTH
DAY FOLLOWING THE DAY ON WHICH SUCH NOTICE OF THE DATE OF THE ANNUAL MEETING WAS
MAILED OR SUCH PUBLIC DISCLOSURE WAS MADE. A STOCKHOLDER'S NOTICE TO THE
SECRETARY SHALL SET FORTH AS TO EACH MATTER THE STOCKHOLDER PROPOSES TO BRING
BEFORE THE ANNUAL MEETING (i) A BRIEF DESCRIPTION OF THE BUSINESS DESIRED TO BE
BROUGHT, BEFORE THE ANNUAL MEETING AND THE REASONS FOR CONDUCTING SUCH BUSINESS
AT THE ANNUAL MEETING, (ii) THE NAME AND RECORD ADDRESS OF THE STOCKHOLDER
PROPOSING SUCH BUSINESS, (iii) THE CLASS AND NUMBER OF SHARES OF THE CORPORATION
THAT ARE BENEFICIALLY OWNED BY THE STOCKHOLDER, AND (iv) ANY MATERIAL INTEREST
OF THE STOCKHOLDER IN SUCH BUSINESS.
NOTWITHSTANDING ANYTHING IN THESE BY-LAWS TO THE CONTRARY, NO
BUSINESS SHALL BE CONDUCTED AT THE ANNUAL MEANING EXCEPT IN ACCORDANCE WITH THE
PROCEDURES SET FORTH IN THIS SECTION 5; PROVIDED, HOWEVER, THAT NOTHING IN THIS
SECTION 5 SHALL BE DEEMED TO PRECLUDE DISCUSSION BY ANY STOCKHOLDER OF ANY
BUSINESS PROPERLY BROUGHT BEFORE THE ANNUAL MEETING IN ACCORDANCE WITH SUCH
PROCEDURE.
THE CHAIRMAN OF AN ANNUAL MEETING SHALL, IF THE FACTS WARRANT,
DETERMINE AND DECLARE TO THE MEETING THAT BUSINESS WAS NOT PROPERLY BROUGHT
BEFORE THE MEETING IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 5, AND IF
HE SHOULD SO DETERMINE, HE SHALL SO DECLARE TO THE MEETING AND ANY SUCH BUSINESS
NOT PROPERTY BROUGHT BEFORE THE MEETING SHALL NOT BE TRANSACTED.
6. SPECIAL MEETINGS. (AMENDED OCTOBER 18, 1997) SPECIAL MEETINGS OF
THE STOCKHOLDERS FOR ANY LAWFUL PURPOSE OR PURPOSES MAY BE CALLED AT ANY TIME
ONLY BY A MAJORITY OF THE BOARD OF DIRECTORS, BY THE CHAIRMAN OF THE BOARD OR
BY THE PRESIDENT. EACH CALL FOR A SPECIAL MEETING OF THE STOCKHOLDERS SHALL
STATE THE TIME, THE DAY, THE PLACE AND THE PURPOSE OR PURPOSES OF SUCH
MEETING AND SHALL BE IN WRITING, SIGNED BY THE PERSONS MAKING THE SAME AND
DELIVERED TO THE SECRETARY. NO BUSINESS SHALL BE CONDUCTED AT ANY SPECIAL
MEETING OF THE STOCKHOLDERS OTHER THAN THE BUSINESS STATED IN THE CALL FOR
SUCH MEETING. THE STOCKHOLDERS OF THE CORPORATION SHALL NOT BE
- 2 -
<PAGE>
ENTITLED, AS A MATTER OF RIGHT, TO REQUIRE THE BOARD OF DIRECTORS TO CALL A
SPECIAL MEETING OF THE STOCKHOLDERS OR TO BRING ANY BUSINESS BEFORE A SPECIAL
MEETING OF THE STOCKHOLDERS.
7. VOTING. At all meetings of stockholders, every stockholder having the
right to vote shall be entitled to vote in person, or by proxy appointed by an
instrument in writing subscribed by such stockholder and bearing a date not more
than three years prior to said meeting, unless said instrument shall provide for
a longer period. Unless otherwise provided by the Certificate of Incorporation,
each stockholder shall have one vote for each share of stock entitled to vote at
such meeting registered in his name on the books of the corporation. At all
meetings if stockholders, the voting may be by voice vote, except that, unless
otherwise provided by the Certificate of Incorporation, any qualified voter may
demand a vote by ballot on any matter, in which event such vote shall be taken
by ballot.
8. QUORUM. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
any business, except as otherwise provided by law, by the certificate of
incorporation or by these By-Laws. Every decision of a majority in the amount
of stock of such quorum shall be valid as a corporate act, except in those
specific instances in which a larger vote is required by law or by the
Certificate of Incorporation or by these By-Laws.
At any meeting at which a quorum shall not be present, the holders of
a majority of the stock present in person or by proxy at such meeting shall have
power successively to adjourn the meeting from time-to-time to a specified time
and place, without notice to anyone other than announcement at the meeting,
until a quorum shall be present in person or by proxy. At such adjourned
meeting at which a quorum shall be present in person or by proxy, any business
may be transacted which might have been transacted at the original meeting which
was adjourned. If the adjournment is for more than 30 days, or if after
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.
9. STOCK LEDGER. The original or duplicate stock ledger shall be the
only evidence as to who are the stockholders entitled to examine the list
required under Section 10 of these By-Laws or the books of the corporation, or
to vote in person or by proxy at any meeting of the stockholders.
10. STOCKHOLDERS LIST. The secretary or assistant secretary, who shall
have charge of the stock ledger, shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall
- 3 -
<PAGE>
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, or, if not so specified, at the place where the meeting is to 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.
11. NOTICE. Written or printed notice of each meeting of the
stockholders, whether annual or special, stating the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes
thereof, shall be given, either personally or by mail, to each stockholder of
record of the corporation entitled to vote at such meeting not less than 10
days nor more than 60 days prior to the meeting. The Board of Directors may fix
in advance a date, which shall riot be more than 60 nor less than 10 days
preceding the date of any meeting of the stockholders, as a record date for the
determination of the stockholders entitled to notice of, and to vote at, any
such meeting and any adjournment thereof; provided, however, that the Board of
Directors may fix a new record date for any adjourned meeting.
12. ACTION BY STOCKHOLDERS WITHOUT MEETING. (AMENDED OCTOBER 18, 1993)
UNLESS OTHERWISE PRESCRIBED BY THE CERTIFICATE OF INCORPORATION, ANY ACTION
REQUIRED BY LAW TO BE TAKEN AT ANY ANNUAL OR SPECIAL MEETING OF SUCH
STOCKHOLDERS, MAY BE TAKEN WITHOUT A MEETING, WITHOUT PRIOR NOTICE, AND
WITHOUT A VOTE, IF A CONSENT IN WRITING SETTING FORTH THE ACTION SO TAKEN
SHALL BE SIGNED BY THE HOLDERS OF OUTSTANDING STOCK HAVING NOT LESS THAN THE
MINIMUM NUMBER OF VOTES THAT WOULD BE NECESSARY TO AUTHORIZE OR TAKE SUCH
ACTION AT A MEETING AT WHICH ALL SHARES ENTITLED TO VOTE THEREON WERE PRESENT
AND VOTED. PROMPT NOTICE OF ANY TAKING OF CORPORATE ACTION WITHOUT A MEETING
BY LESS THAN UNANIMOUS WRITTEN CONSENT SHALL BE GIVEN TO THOSE STOCKHOLDERS
WHO HAVE NOT CONSENTED IN WRITING.
BOARD OF DIRECTORS
13. POWERS; NUMBER; TERM; QUALIFICATION. The management of all the
affairs, property, and business of the corporation shall be vested in a Board of
Director. Unless required by the Certificate of Incorporation, directors need
not be stockholders. In addition to the powers and authorities these By-Laws
and the Certificate of Incorporation have expressly conferred upon it, the Board
of Directors may exercise all such powers of the corporation, and do all such
lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these By-Laws directed or required to be exercised or done
by the stockholders. The number of directors shall be as provided from time-to-
time by resolution duly adopted by the holders of a majority of the outstanding
shares entitled to vote thereon or by a majority of the whole Board of
Directors. Each Director shall hold office until his successor shall have been
elected and qualified or until his earlier resignation any removal. Each
Director, upon his election, shall be deemed to have qualified by filing
- 4 -
<PAGE>
with the corporation his written acceptance of such office, which shall be
placed in the minute book, or by his attendance at, or consent to action in lieu
of, any regular or special meeting of directors.
14. 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, unless it is otherwise provided in the Certificate of
Incorporation or By-Laws, and the directors so chosen shall hold office until
the next annual election and until their successors are duly elected and
qualified, unless sooner displaced. If there are no directors in office, then
an election of directors may be held in the manner provided by statute.
15. MEETINGS OF THE NEWLY ELECTED BOARD. The first meeting of the members
of each newly elected Board of Directors shall be held (i) at such time and
place either within or without the State of Delaware as shall be suggested or
provided by resolution of the stockholders at the meeting at which such newly
elected board was elected, and no notice of such meeting shall be necessary to
the newly elected directors in order legally to constitute the meeting, provided
a quorum shall be present; or (ii) if not so suggested or provided for by
resolution of the stockholders or if a quorum shall not be present, at such time
and place as shall be consented to ill writing by a majority of the newly
elected Board of Directors, provided that written or printed notice of such
meeting shall be given to each of the other directors in the same manner as
provided in Section 18 of these By-Laws with respect to the giving of notice for
special meetings of the Board, except that it shall not be necessary to state
the purpose of the meeting in such notice; or (iii) regardless of whether the
time and place of such meeting shall be suggested or provided for by resolution
of the stockholders, at such time and place as shall be consented to in writing
by all of the newly elected directors.
16. REGULAR MEETING. Regular meetings of the Board of Directors may be
held without notice at such times and places either within or without the State
of Delaware as shall from time-to-time be fixed by resolution adopted or waiver
of notice signed by the full Board of Directors. Any business may be transacted
at a regular meeting.
17. SPECIAL MEETING. Special meetings of the Board of Directors may be
called at any time by the chairman, the president, or by any two or more of the
directors. The place may be within or without the State of Delaware as
designated in the notice.
18. NOTICE OF SPECIAL MEETING. Written or printed notice of each special
meeting of the Board of Directors, stating the place, day, and hour of the
meeting and the purpose or purposes thereof, shall be mailed to each director
addressed to him at his residence or usual place of business at least two days
before the day on
- 5 -
<PAGE>
which the meeting is to be held, or shall be sent to him by telegram, or
delivered personally, at least one day before the day on which the meeting is to
be held. The notice may be given by any officer having authority to call the
meeting. "Notice" and a "call" with respect to such meetings shall be deemed to
be synonymous. Any meeting of the Board of Directors shall be a legal meeting
without any notice thereof having been given if all directors shall be present
thereat.
19. QUORUM. Unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, a majority of the total number of directors
shall he necessary at all meetings to constitute a quorum for the transaction of
business, and except as may be otherwise provided by law, the Certificate of
Incorporation or these BY-Laws, the act of a majority of the directors present
at any meeting at which there is a quorum shall be the act of the Board of
Directors.
If at least one-third (1/3) of the whole Board of Directors is present
at any meeting at which a quorum is not present, a majority of the directors
present at such meeting shall have power successively to adjourn the meeting
from time-to-time to a subsequent date, without notice to any director other
than announcement at the meeting. At such adjourned meeting at which a quorum
is present, any business may be transacted which might have been transacted at
the original meeting which was adjourned.
20. ATTENDANCE BY TELEPHONE. Unless otherwise restricted by the
Certificate of Incorporation, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
such Board or committee bit 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
provision shall constitute presence in person at such meeting.
21. COMMITTEES. The Board of Directors may, by resolution or resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more directors of the corporation. The Board of
Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. Any such committee, to the extent provided in said resolution or
resolutions or in these By-Laws, shall have and may exercise all of the powers
of the Board of Directors in the management of the corporation, and may
authorize the seal of the corporation to be affixed to all papers which may
require it; provided, however, that in the absence or disqualification of any
member of such committee or committees the member or members thereof present at
any meeting and not disqualified from voting, whether he or they constitute a
quorum, may unanimously, appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. Such
committee or committees shall have such name or names as may be determined from
time-to-time by resolution
- 6 -
<PAGE>
adopted by the Board of Directors. All committees so appointed shall, unless
otherwise provided by the Board of Directors, keep regular minutes of this
transactions of their meetings and shall cause them to be recorded in books kept
for that purpose in the office of the corporation and shall report the same to
the Board of Directors at its next meeting. The secretary of the corporation
may act as secretary of the committee if the committee so request.
22. COMPENSATION. The Board of Directors may, by resolution, fix a sum to
be paid directors for serving as directors of this corporation and may, by
resolution, fix a sum which shall be allowed and paid for attendance at each
meeting of thin Board of Directors and in each case may provide for
reimbursement of expenses incurred by directors in attending each meeting;
provided that nothing herein contained shall be construed to preclude any
director from serving this corporation iii any other capacity and receiving his
regular compensation therefor. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
23. RESIGNATION. Any director may resign at any time by giving a written
notice to the Chairman of the Board of Directors, the president, or the
secretary of the corporation. Such resignation shall take effect at the time
specified therein; and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(Amended November 19, 1992)
(AMENDED OCTOBER 18, 1993)
(a) POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE
BY OR IN THE RIGHT OF THE CORPORATION. THE CORPORATION SHALL INDEMNIFY TO
THE FULLEST EXTENT AUTHORIZED OR PERMITTED BY LAW (AS NOW OR HEREAFTER IN
EFFECT ANY PERSON MADE, OR THREATENED TO BE MADE, A PARTY OR WITNESS TO ANY
THREATENED, PENDING OR COMPLETED ACTION, SUIT, OR PROCEEDING, WHETHER
CIVIL, CRIMINAL, ADMINISTRATIVE OR INVESTIGATIVE (OTHER THAN AN ACTION BY
OR IN THE RIGHT OF THE CORPORATION) BY REASON OF THE FACT THAT HE OR SHE
(OR HIS OR HER TESTATOR OR INTESTATE) IS OR WAS A DIRECTOR OR OFFICER OF
THE CORPORATION, OR IS OR WAS SERVING AT THE REQUEST OF THE CORPORATION AS
A DIRECTOR OR OFFICER OF ANOTHER CORPORATION, PARTNERSHIP, JOINT VENTURE,
TRUST OR OTHER ENTERPRISE, AGAINST EXPENSES (INCLUDING ATTORNEYS' FEES),
JUDGMENTS, MINES AND AMOUNTS PAID IN SETTLEMENT ACTUALLY AND REASONABLY
INCURRED BY SUCH PERSON IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING
IF HE OR SHE ACTED IN GOOD FAITH AND IN A MANNER HE OR SHE REASONABLY
BELIEVED TO BE IN OR NOT OPPOSED TO THE BEST INTERESTS OF THE CORPORATION
AND, WITH RESPECT TO ANY CRIMINAL ACTION OR PROCEEDING, HAD NO REASONABLE
CAUSE TO BELIEVE HIS CONDUCT WAS UNLAWFUL. THE TERMINATION OF ANY ACTION,
SUIT OR PROCEEDING BY JUDGMENT, ORDER,
- 7 -
<PAGE>
SETTLEMENT, CONVICTION OR UPON A PLEA OF NOLO CONTENDERE OR ITS EQUIVALENT,
SHALL NOT, OF ITSELF, CREATE A PRESUMPTION THAT THE PERSON DID NOT ACT IN
GOOD FAITH AND IN A MANNER WHICH HE OR SHE REASONABLY BELIEVED TO BE IN OR
NOT OPPOSED TO THE BEST INTERESTS OF THE CORPORATION, AND, WITH RESPECT TO
ANY CRIMINAL ACTION OR PROCEEDING, HAD REASONABLE CAUSE TO BELIEVE THAT HIS
OR HER CONDUCT WAS UNLAWFUL.
(b) POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE RIGHT
OF THE CORPORATION. THE CORPORATION SHALL INDEMNITY TO THE FULLEST EXTENT
AUTHORIZED OR PERMITTED BY LAW (AS NOW OR HEREAFTER IN EFFECT) ANY PERSON
MADE, OR THREATENED TO BE MADE A PARTY OR WITNESS TO ANY THREATENED,
PENDING OR COMPLETED ACTION OR SUIT BY OR IN THE RIGHT OF THE CORPORATION
TO PROCURE A JUDGMENT IN ITS FAVOR BY REASON OF THE FACT THAT HE OR SHE (OR
HIS OR HER TESTATOR OR INTESTATE) IS OR WAS A DIRECTOR OR OFFICER OF THE
CORPORATION, OR IS OR WAS SERVING AT THE REQUEST OF THE CORPORATION AS A
DIRECTOR OR OFFICER OF ANOTHER CORPORATION, PARTNERSHIP, JOINT VENTURE,
TRUST OR OTHER ENTERPRISE AGAINST EXPENSES (INCLUDING ATTORNEYS' FEES),
AND, IF AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, JUDGMENTS,
PENALTIES, AND AMOUNTS PAID IN SETTLEMENT, INCURRED BY HIM OR HER IN
CONNECTION WITH DEFENDING, INVESTIGATING, PREPARING TO DEFEND, OR BEING
PREPARED TO BE A WITNESS IN, SUCH ACTION, SUIT, PROCEEDING OR CLAIM OF SUCH
PERSON ACTED IN GOOD FAITH AND IN A MANNER HE OR SHE REASONABLY BELIEVED TO
BE IN OR NOT OPPOSED TO THE BEST INTERESTS OF THE CORPORATION EXCEPT THAT
NO INDEMNIFICATION SHALL BE MADE IN RESPECT OF ANY CLAIM, ISSUE OR MATTER
AS TO WHICH SUCH PERSON SHALL HAVE BEEN ADJUDGED TO BE LIABLE TO THE
CORPORATION UNLESS (AND ONLY TO THE EXTENT THAT) THE COURT OF CHANCERY OR
THE COURT IN WHICH SUCH ACTION, SUIT, PROCEEDING OR CLAIM WAS BROUGHT SHALL
DETERMINE UPON APPLICATION THAT, DESPITE THE ADJUDICATION OF LIABILITY BUT
IN VIEW OF ALL THE CIRCUMSTANCES OF THE CASE, SUCH PERSON IS FAIRLY AND
REASONABLY ENTITLED TO INDEMNITY FOR SUCH EXPENSES AND AMOUNTS WHICH THE
COURT OF CHANCERY OR SUCH OTHER COURT SHALL DEEM PROPER.
(c) AUTHORIZATION OF INDEMNIFICATION.
(1) ANY INDEMNIFICATION UNDER SECTION 24 (UNLESS ORDERED BY
A COURT) SHALL BE MADE BY THE CORPORATION ONLY AS AUTHORIZED
IN THE SPECIFIC CASE UPON A DETERMINATION THAT INDEMNIFICATION OF
THE DIRECTOR OR OFFICER IS PROPER IN THE CIRCUMSTANCES BECAUSE HE
HAS MET THE APPLICABLE STANDARD OF CONDUCT SET FORTH IN SECTION
24(a) OR (b), AS THE CASE MAY BE. SUCH DETERMINATION SHALL BE MADE
(i) BY THE BOARD OF DIRECTORS BY A MAJORITY VOTE OF A QUORUM
CONSISTING OF DIRECTORS WHO WERE NOT PARTIES TO SUCH ACTION, SUIT OR
PROCEEDING, OR (ii) IF SUCH A QUORUM IS NOT OBTAINABLE, OR,
- 8 -
<PAGE>
EVEN IF OBTAINABLE, A QUORUM OF DISINTERESTED DIRECTORS SO DIRECTS, BY
INDEPENDENT LEGAL COUNSEL IN A WRITTEN OPINION, OR (iii) BY THE
STOCKHOLDERS; PROVIDED, HOWEVER, THAT IF A CHANGE IN CONTROL (AS
DEFINED IN SECTION 24(c)(3)) HAS OCCURRED AND THE PERSON SEEKING
INDEMNIFICATION SO REQUESTS, SUCH DETERMINATION SHALL BE MADE IN A
WRITTEN OPINION RENDERED BY INDEPENDENT LEGAL COUNSEL CHOSEN BY THE
PERSON SEEKING INDEMNIFICATION AND NOT REASONABLY OBJECTED TO BY THE
BOARD OF DIRECTORS (WHOSE FEES AND EXPENSES SHALL BE PAID BY THE
CORPORATION). TO THE EXTENT, HOWEVER, THAT A DIRECTOR OR OFFICER OF
THE CORPORATION HAS BEEN SUCCESSFUL ON THE MERITS OR OTHERWISE IN
DEFENSE OF ANY ACTION, SUIT OR PROCEEDING DESCRIBED ABOVE, OR IN
DEFENSE OF ANY CLAIM, ISSUE OR MATTER THEREIN, HE OR SHE SHALL BE
INDEMNIFIED AGAINST EXPENSES (INCLUDING ATTORNEYS' FEES) INCURRED BY
HIM OR HER IN CONNECTION THEREWITH, WITHOUT THE NECESSITY OF
AUTHORIZATION IN THE SPECIFIC CASE.
(2) FOR PURPOSES OF THE PROVISO TO THE SECOND SENTENCE OF
SECTION 24(c)(1), "INDEPENDENT LEGAL COUNSEL" SHALL MEAN LEGAL
COUNSEL OTHER THAN AN ATTORNEY, OR A FIRM HAVING ASSOCIATED WITH
IT AN ATTORNEY, WHO HAS BEEN REFRAINED BY OR WHO HAS PERFORMED
SERVICES FOR THE CORPORATION OR THE PERSON SEEKING
INDEMNIFICATION WITHIN THE PREVIOUS THREE YEARS.
(3) A "CHANGE IN CONTROL" SHALL MEAN A CHANGE IN CONTROL OF
THE CORPORATION OF A NATURE THAT WOULD BE REQUIRED TO BE
REPORTED IN RESPONSE TO ITEM 5(f) OF SCHEDULE 14A OF
REGULATION 14A PROMULGATED UNDER THE EXCHANGE ACT, WHETHER
OR NOT THE CORPORATION IS THEN SUBJECT TO SUCH REPORTING
REQUIREMENT; PROVIDED THAT, WITHOUT LIMITATION, SUCH A
CHANGE IN CONTROL SHALL BE DEEMED TO HAVE OCCURRED IF (i)
ANY "PERSON" (AS SUCH TERM IS USED IN SECTION 13(d) AND
14(d) OF THE EXCHANGE ACT), OTHER THAN A TRUSTEE OR OTHER
FIDUCIARY HOLDING SECURITIES UNDER AN EMPLOYEE BENEFIT PLAN
OF THE CORPORATION OR A CORPORATION OWNED DIRECTLY OR
INDIRECTLY BY THE STOCKHOLDERS OF THE CORPORATION IN
SUBSTANTIALLY THE SAME PROPORTIONS AS THEIR OWNERSHIP OF
STOCK OF THE CORPORATION, IS OR BECOMES THE "BENEFICIAL
OWNER" (AS DEFINED IN RULE 13d-3 UNDER THE EXCHANGE ACT),
DIRECTLY OR INDIRECTLY, OF SECURITIES OF THE CORPORATION
REPRESENTING THIRTY PERCENT (30%) OR MORE OF THE TOTAL
VOTING POWER REPRESENTED BY THE CORPORATION'S THEN
OUTSTANDING SHARES OF CAPITAL STOCK ENTITLED TO VOTE (THE
"VOTING
- 9 -
<PAGE>
SECURITIES"), OR (ii) DURING ANY PERIOD OF TWO CONSECUTIVE YEARS,
INDIVIDUALS WHO AT THE BEGINNING OF SUCH PERIOD CONSTITUTE THE BOARD
OF DIRECTORS OF THE CORPORATION AND ANY NOW DIRECTOR WHOSE ELECTION BY
THE BOARD OF DIRECTORS OR NOMINATION FOR ELECTION BY THE CORPORATION'S
STOCKHOLDERS WHO APPROVED BY A VOTE OF AT LEAST TWO-THIRDS (2/3) OF
THE DIRECTORS THEN STILL IN OFFICE WHO EITHER WERE DIRECTORS AT THE
BEGINNING OF THE PERIOD OR WHOSE ELECTION OR NOMINATION FOR ELECTION
WAS PREVIOUSLY SO APPROVED, CEASE FOR ANY REASON TO CONSTITUTE A
MAJORITY THEREOF, OR (iii) THE STOCKHOLDERS OF THE CORPORATION APPROVE
A MERGER OR CONSOLIDATION OF THE CORPORATION WITH ANY OTHER
CORPORATION, OTHER THAN A MERGER OR CONSOLIDATION WHICH WOULD RESULT
IN ANY VOTING SECURITIES OF THE CORPORATION OUTSTANDING OR BY BEING
CONVERTED INTO ANY VOTING SECURITIES OF THE SURVIVING ENTITY AT LEAST
EIGHTY PERCENT (80%) OF THE TOTAL VOTING POWER REPRESENTED BY ALL
VOTING SECURITIES OF THE CORPORATION OR SUCH SURVIVING ENTITY
OUTSTANDING IMMEDIATELY AFTER SUCH MERGER OR CONSOLIDATION, OR THE
STOCKHOLDERS OF THE CORPORATION APPROVE A PLAN OF COMPLETE LIQUIDATION
OF THE CORPORATION OR AN AGREEMENT FOR THE SALE OR DISPOSITION BY THE
CORPORATION OF (IN ONE TRANSACTION OR A SERIES OF TRANSACTIONS) ALL OR
SUBSTANTIALLY ALL OF THE CORPORATION'S ASSETS.
(d) FOR PURPOSES OF ANY DETERMINATION UNDER SECTION 24(c), A PERSON SHALL
BE DEEMED TO HAVE ACTED IN GOOD FAITH AND IN A MANNER HE OR SHE REASONABLY
BELIEVED TO BE IN OR NOT OPPOSED TO THE BEST INTEREST OF THE CORPORATION,
OR, WITH RESPECT TO ANY CRIMINAL ACTION OR PROCEEDING, TO HAVE HAD NO
REASONABLE CAUSE TO BELIEVE HIS OR HER CONDUCT WAS UNLAWFUL, IF HIS OR HER
ACTION IS BASED ON THE RECORDS OR ON INFORMATION SUPPLIED TO HIM OR HER BY
THE OFFICERS OF THE CORPORATION OR ANOTHER ENTERPRISE IN THE COURSE OF
THEIR DUTIES, OR ON THE ADVICE OF LEGAL COUNSEL FOR THE CORPORATION OR
ANOTHER ENTERPRISE OR ON INFORMATION OR RECORDS GIVEN OR REPORTS MADE TO
THE CORPORATION OR ANOTHER ENTERPRISE BY AN INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANT OR BY AN APPRAISER OR OTHER EXPERT SELECTED WITH REASONABLE CARE
BY THE CORPORATION OR ANOTHER ENTERPRISE. THE TERM "ANOTHER ENTERPRISE" AS
USED IN THIS SECTION 24(d) SHALL MEAN ANY OTHER CORPORATION OR ANY
PARTNERSHIP, JOINT VENTURE, TRUST OR OTHER ENTERPRISE OF WHICH SUCH PERSON
IS OR WAS SERVING AT THE REQUEST OF THE CORPORATION AS A DIRECTOR OR
OFFICER. THE PROVISIONS OF THIS SECTION 24(d) SHALL NOT BE DEEMED TO BE
EXCLUSIVE OR TO LIMIT IN ANY WAY THE CIRCUMSTANCES IN WHICH A PERSON MAY BE
DEEMED TO HAVE MET THE APPLICABLE STANDARD OF CONDUCT SET FORTH IN SECTION
24(a) OR (b), AS THE CASE MAY BE.
- 10 -
<PAGE>
(e) RIGHT TO INDEMNIFICATION UPON APPLICATION; PROCEDURE UPON
APPLICATION, ETC. EXCEPT AS OTHERWISE PROVIDED IN THE PROVISO TO SECTION
24(b):
(1) ANY INDEMNIFICATION UNDER SECTION 24(a) OR (b) SHALL BE
MADE NO LATER THAN 30 DAYS AFTER RECEIPT BY THE CORPORATION
OF THE WRITTEN REQUEST OF THE DIRECTOR OR OFFICER OR FORMER
DIRECTOR OR OFFICER UNLESS A DETERMINATION IS MADE WITHIN
SAID 30-DAY PERIOD IN ACCORDANCE WITH SECTION 24(c) THAT
SUCH PERSON HAS NOT MET THE APPLICABLE STANDARD OF CONDUCT
SET FORTH IN SECTIONS 24(a) AND (b).
(2) THE RIGHT TO INDEMNIFICATION UNDER SECTION 24(a) OR (b)
OR ADVANCES UNDER SECTION 24(f) SHALL BE ENFORCEABLE BY THE
DIRECTOR OR OFFICER OR FORMER DIRECTOR OR OFFICER AN ANY
COURT OF COMPETENT JURISDICTION. THE BURDEN OF PROVING THAT
INDEMNIFICATION IS NOT APPROPRIATE SHALL BE ON THE
CORPORATION. NEITHER THE ABSENCE OF ANY PRIOR
DETERMINATION THAT INDEMNIFICATION IS NOT PROPER IN THE
CIRCUMSTANCES, NOR A PRIOR DETERMINATION THAT
INDEMNIFICATION IS NOT PROPER IN THE CIRCUMSTANCES SHALL BE
A DEFENSE TO THE ACTION OR CREATE A PRESUMPTION THAT THE
DIRECTOR OR OFFICER OR FORMER DIRECTOR OR OFFICER HAS NOT
MET THE APPLICABLE STANDARD OF CONDUCT. THE EXPENSES
(INCLUDING ATTORNEYS' FEES AND EXPENSES) INCURRED BY THE
DIRECTOR OR OFFICER OR FORMER DIRECTOR OR OFFICER IN
CONNECTION WITH SUCCESSFULLY ESTABLISHING HIS OR HER RIGHT
TO INDEMNIFICATION, IN WHOLE OR IN PART, IN ANY SUCH ACTION
(OR IN ANY ACTION OR CLAIM BROUGHT BY HIM TO RECOVER, UNDER
ANY INSURANCE POLICY OR POLICIES REFERRED TO IN SECTION
24(i)) SHALL ALSO BE INDEMNIFIED BY THE CORPORATION.
(3) IF ANY PERSON IS ENTITLED UNDER ANY PROVISION OF THIS
SECTION 24 TO INDEMNIFICATION BY THE CORPORATION FOR SOME OR
A PORTION OF EXPENSES, JUDGMENTS, FINES, PENALTIES OR
AMOUNTS PAID IN SETTLEMENT INCURRED BY HIM OR HER, BUT NOT,
HOWEVER, FOR THE TOTAL AMOUNT THEREOF, THE CORPORATION SHALL
NEVERTHELESS INDEMNIFY SUCH PERSON FOR THE PORTION OF SUCH
EXPENSES, JUDGEMENTS, FINES, PENALTIES AND AMOUNTS TO WHICH
HE OR SHE IS ENTITLED.
(f) EXPENSES PAYABLE IN ADVANCE. EXPENSES INCURRED IN DEFENDING OR
INVESTIGATING A THREATENED OR PENDING ACTION, SUIT OR PROCEEDING MAY
BE PAID BY THE CORPORATION IN ADVANCE OF THE FINAL DISPOSITION OF SUCH
ACTION, SUIT OR PROCEEDING UPON RECEIPT OF AN UNDERTAKING BY OR ON
BEHALF OF THE DIRECTOR OR OFFICER TO REPAY SUCH AMOUNT IF IT SHALL
ULTIMATELY BE
- 11 -
<PAGE>
DETERMINED THAT HE OR SHE IS NOT ENTITLED TO BE INDEMNIFIED BY THE
CORPORATION AS AUTHORIZED IN THIS SECTION 24; PROVIDED, HOWEVER, THAT IF HE
OR SHE SEEKS TO ENFORCE HIS OR HER RIGHTS IN A COURT OF COMPETENT
JURISDICTION PURSUANT TO SECTION 24(e)(2), SAID UNDERTAKING TO REPAY SHALL
NOT BE APPLICABLE OR ENFORCEABLE UNLESS AND UNTIL THERE IS A FINAL COURT
DETERMINATION THAT HE OR SHE IS ENTITLED TO INDEMNIFICATION AS TO WHICH ALL
RIGHTS OF APPROVAL HAVE BEEN EXHAUSTED OR HAVE EXPIRED.
(g) NON-EXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. THE
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES PROVIDED BY OR GRANTED PURSUANT
TO THIS SECTION 24 SHALL NOT BE DEEMED EXCLUSIVE OF ANY OTHER RIGHTS TO
WHICH THOSE SEEKING INDEMNIFICATION OR ADVANCEMENT OF EXPENSES MAY BE
ENTITLED UNDER ANY BY-LAW, AGREEMENT, CONTRACT, VOTE OF STOCKHOLDERS OR
DISINTERESTED DIRECTORS OR PURSUANT TO THE DIRECTION (HOWSOEVER EMBODIED)
OF ANY COURT OF COMPETENT JURISDICTION OR OTHERWISE, BOTH AS TO ACTION IN
HIS OR HER OFFICIAL CAPACITY AND AS TO ACTION IN ANOTHER CAPACITY WHILE
HOLDING SUCH OFFICE, IT BEING THE POLICY OF THE CORPORATION THAT
INDEMNIFICATION OF THE PERSONS SPECIFIED IN SECTIONS 24(a) AND (b) SHALL OR
MAY, AS THE CASE MAY BE, BE MADE TO THE FULLEST EXTENT PERMITTED BY LAW.
THE PROVISIONS OF THIS SECTION 24 SHALL NOT BE DEEMED TO PRECLUDE THE
INDEMNIFICATION OF ANY PERSON WHO IS NOT SPECIFIED IN SECTIONS 24(a) AND
(b) BUT WHOM THE CORPORATION HAS THE POWER OR OBLIGATION TO INDEMNIFY UNDER
THE PROVISIONS OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE, OR
OTHERWISE. THE CORPORATION MAY ENTER INTO WRITTEN AGREEMENTS, APPROVED BY
A MAJORITY OF THE DIRECTORS, WHICH INCLUDE ALL OR ANY OF THE INDEMNITY
PROVISIONS REQUIRED OR PERMITTED BY THIS SECTION 24.
(h) INSURANCE. THE CORPORATION MAY PURCHASE AND MAINTAIN INSURANCE ON
BEHALF OF ANY PERSON WHO IS OR WAS A DIRECTOR OR OFFICER OF THE
CORPORATION, OR IS OR WAS SERVING AT THE REQUEST OF THE CORPORATION AS
A DIRECTOR OR OFFICER OF ANOTHER CORPORATION, PARTNERSHIP, JOINT
VENTURE, TRUST OR OTHER ENTERPRISE AGAINST ANY LIABILITY ASSERTED
AGAINST HIM OR HER AND INCURRED BY HIM OR HER IN ANY SUCH CAPACITY, OR
ARISING OUT OF HIS STATUS AS SUCH, WHETHER OR NOT THE CORPORATION
WOULD HAVE THE POWER OR THE OBLIGATION TO INDEMNIFY HIM OR HER AGAINST
SUCH LIABILITY UNDER THE PROVISIONS OF THIS SECTION 24.
(i) MEANING OF "CORPORATION" FOR PURPOSES OF SECTION 24. FOR PURPOSES
OF THIS SECTION 24, REFERENCES TO "THE CORPORATION" SHALL INCLUDE, IN
ADDITION TO THE RESULTING CORPORATION, ANY CONSTITUENT CORPORATION
(INCLUDING ANY CONSTITUENT OF A CONSTITUENT) ABSORBED IN A
CONSOLIDATION OR MERGER WHICH, IF ITS SEPARATE EXISTENCE HAD
CONTINUED, WOULD HAVE HAD POWER AND AUTHORITY TO INDEMNIFY ITS
DIRECTORS OR OFFICERS SO THAT ANY PERSON WHO IS OR WAS A DIRECTOR OR
OFFICER OF SUCH CONSTITUENT
- 12 -
<PAGE>
CORPORATION, OR IS OR WAS SERVING AT THE REQUEST OF SUCH CONSTITUENT
CORPORATION AS A DIRECTOR OR OFFICER OF ANOTHER CORPORATION, PARTNERSHIP,
JOINT VENTURE, TRUST OR OTHER ENTERPRISE, SHALL STAND IN THE SAME POSITION
UNDER THE PROVISIONS OF THIS SECTION 24 WITH RESPECT TO THE RESULTING OR
SURVIVING CORPORATION AS HE OR SHE WOULD HAVE WITH RESPECT TO SUCH
CONSTITUENT CORPORATION IF ITS SEPARATE EXISTENCE HAD CONTINUED.
(j) SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. THE
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES PROVIDED BY, OR GRANTED
PURSUANT TO, THIS SECTION SHALL, UNLESS OTHERWISE PROVIDED WHEN
AUTHORIZED OR RATIFIED, CONTINUE AS TO A PERSON WHO HAS CEASED TO BE A
DIRECTOR OR OFFICER AND SHALL INURE TO THE BENEFIT OF THE HEIRS,
EXECUTORS AND ADMINISTRATORS OF SUCH A PERSON.
25. ACTION BY DIRECTORS WITHOUT MEETING. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, any action required or
permitted to tie taken at any meeting of the Board of Directors or any committee
thereof may tie taken without a meeting if all members of the Board of Directors
or of such 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.
OFFICERS
26. (a) OFFICERS - WHO SHALL CONSTITUTE. The officers of the corporation
shall consist of a Chairman of the Board of Directors, a president, one or
more vice presidents, a secretary, and a treasurer, each of whom shall be
elected by the Board of Directors at their first meeting after the annual
meeting of the stockholders. The Board of Directors may also designate
additional assistant vice presidents, assistant secretaries and assistant
treasurers. In the discretion of the Board of Directors, the office of
Chairman of the Board of Directors may remain unfilled. The Chairman of
the Board of Directors (if any) shall at all times be, and other officers
may be, members of the Board of Directors. Any number of offices may be
held by the same person.
An officer shall be deemed qualified when he enters upon the duties of
the office to which he has been elected or appointed and furnishes any
bond required by the Board; but the Board may also require of such
person his written acceptance and promise faithfully, to discharge the
duties of such office.
(B) TERM. Each officer of the corporation shall hold his office at
the pleasure of the Board of Directors or for such other period as the
Board may specify at the time of his election or appointment, or until
his death,
- 13 -
<PAGE>
resignation, or removal by the Board, whichever first occurs. In any
event, each officer of the corporation who is not re-elected or reappointed
at the annual meeting of the Board of Directors next succeeding his
election or appointment and at which any officer of the corporation is
elected or appointed shall be deemed to have been removed by the Board,
unless the Board provides otherwise at the time of his election or
appointment.
(c) OTHER OFFICERS AND AGENTS. The Board of Directors from time-to-time
may also appoint such other officers and agents for the Corporation as it
shall deem necessary or advisable, each of whom shall serve at the pleasure
of the Board or for such period as the Board may specify, and shall
exercise such powers, have such titles, and perform such duties as shall be
determined from time-to-time by the Board or by an officer empowered by the
Board to make such determinations.
27. (a) CHAIRMAN. If a Chairman of the Board of Directors is elected or
appointed, he or she shall preside at all meetings of the shareholders and
directors at which he or she may be present. The Board of Directors may
delegate such other authority and assign such additional duties to the
Chairman as it may from time-to-time determine.
(b) PRESIDENT AND CHIEF EXECUTIVE OFFICER. The President shall be the
Chief Executive Officer of the corporation with such general executive
powers and duties of supervision and management as are usually vested in
the office of the Chief Executive Officer of the corporation and he shall
carry into effect all directions and resolutions of the Board of Directors.
The President may, but shall not be required to, execute all bonds, notes,
debentures, mortgages, and other instruments for and in the name of the
corporation, and may cause the corporate seal to be affixed thereto.
Unless the Board of Directors otherwise provides, the President, or any
person designated in writing by him, shall have full power and authority on
behalf of this corporation (i) to attend and to vote or take action at any
meeting of the holders of securities of corporations in which this
corporation may hold securities, and at such meetings this corporation may
hold securities, and at such meetings shall possess and may exercise any
and all rights and powers incident to being a holder of such securities and
which as the holder thereof this corporation may have possessed and
exercised if present, and (ii) to execute and deliver waivers of notice and
proxies for and in the name of the corporation with respect to any such
securities held by this corporation.
- 14 -
<PAGE>
He shall, unless the Board of Directors otherwise provides, be ex officio a
member of all standing committees.
He shall have such other or further duties and authority as may be
prescribed elsewhere in these By-Laws or from time-to-time by the Board of
Directors.
28. VICE PRESIDENT. In the absence of the President or in the event of
his disability, inability, or refusal to act, the Chairman, the Vice President
(or in the event there be more than one vice president, the Vice Presidents in
the order designated by the Board, or in the absence of any designation, then
in the order of their election) shall perform the duties and exercise the powers
of the President, and shall perform such other duties as the Board of Directors
may from time-to-time prescribe.
29. SECRETARY AND ASSISTANT SECRETARIES. The Secretary may attend all
sessions of the Board of Directors and all meetings of the Stockholders, and
shall record or cause to be recorded all votes taken and the Minutes of all
proceedings in a Minute Book of the corporation to be kept for that purpose. He
shall perform like duties for committees when requested to do so by the Board of
Directors or any such committee.
It shall be the principal responsibility of the secretary to give, or
cause to be given, notice of all meetings of the Stockholders and of the Board
of Directors, but this shall not lessen the authority of others to give such
notice as is authorized elsewhere in these By-Laws.
The Secretary shall see that all books, records, lists, and
information, or duplicates, required to be maintained in the State of Delaware
or elsewhere, are so maintained.
The Secretary shall keep in safe custody the seal of the corporation
and shall have the authority to affix the seal to any instrument requiring it,
and when so affixed, he shall attest the seal by his signature. The Board of
Directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
The Secretary shall perform such other duties and have such other
authority as may be prescribed elsewhere in these By-Laws or from time-to-time
by the Board of Directors or the Chief Executive Officer of the corporation,
under whose direct supervision he shall be.
In the absence of the Secretary or in the event of his disability,
inability, or refusal to act, the Assistant Secretary (or in the event there be
more than one assistant secretary, the assistant secretaries in the order
designated by the Board of Directors or in the absence of any designation, then
in the order of their election)
- 15 -
<PAGE>
may perform the duties and exercise the powers of the Secretary, and shall
perform such other duties as the Board of Directors may from time-to-time
prescribe.
30. TREASURER AND ASSISTANT TREASURERS. The Treasurer shall have
responsibility for the safekeeping of the funds and securities of the
corporation, shall keep or cause to be kept full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall keep,
or cause to be kept, all other books of account and accounting records of the
corporation. He shall deposit or cause to be deposited all moneys and other
valuable effect in the name and to the credit of the corporation in such
depositories as may be designated by the Board of Directors, the Chief Executive
Officer, or by any officer of the corporation to whom such authority has been
granted by the Board of Directors.
He shall disburse, or permit to be disbursed the funds of the
Corporation as may be ordered, or authorized generally, by the Board of
Directors, and shall render to the Chief Executive Officer of the corporation
and the directors whenever they may require it, an account of all his
transactions as Treasurer and of those under his jurisdiction, and of the
financial condition of the corporation.
He shall perform such other duties and shall have Such other
responsibility and authority as may be prescribed elsewhere in these By-Laws or
from time-to-time by the Board of Directors.
He shall have the general duties, powers, and responsibilities of a
treasurer of a corporation.
If required by the Board of Directors, he shall give the corporation a
bond in a sum and with one or more sureties satisfactory to the Board, for the
faithful performance of the duties of his office, and for the restoration to the
corporation, in the case of his death, resignation, retirement, or removal from
office, of all books, papers, vouchers, money, and other property of whatever
kind in his possession or under his control which belong to the corporation.
In the absence of the Treasurer or in the event of his disability,
inability, or refusal to act, the Assistant Treasurer (or in the event there be
more than one assistant treasurer, the assistant treasurers in the order
designated by the Board of Directors, or in the absence of any designation, then
in the order of their election) may perform the duties and exercise the powers
of the treasurer, and shall perform such other duties and have such other
authority as the Board of Directors may from time-to-time prescribe.
31. DUTIES OF OFFICERS MAY BE DELEGATED. If any officer of the
corporation be absent or unable to act, or for any other reason that the Board
of Directors may deem sufficient, the Board may delegate for the time being some
or all of the functions, duties, powers, and responsibilities of any officer to
any other officer, or
- 16 -
<PAGE>
to any other agent or employee of the corporation or other responsible person,
provided a majority of the whole Board of Directors concurs therein.
32. REMOVAL. Any officer or agent elected or appointed by the Board of
Directors, and any employee, may be removed or discharged, with or without
cause, at any time by the affirmative vote of a majority of the Board of
Directors, but such removal or discharge shall be without prejudice to the
contract rights, if any, of this person so removed or discharged.
33. SALARIES. Salaries and other compensation of all elected officers of
this corporation shall be fixed, increased or decreased by the Board of
Directors, but this power, by be delegated by the Board to a committee.
Salaries and compensation of all other appointed officers, agents, and employees
of the corporation may be fixed, increased or decreased by the Board of
Directors, but until action is taken with respect thereto by the Board of
Directors, or in the absence of such action, the same may be fixed increased or
decreased by the President or such other officer or officers as may be
designated by the Board of Directors to do so.
34. DELEGATION OF AUTHORITY. The Board of Directors from time-to-time
may delegate to the President or other officer or executive employee of the
corporation, authority to hire, discharge, fix, and modify the duties, salary,
or other compensation of employees of the corporation under their jurisdiction,
and the Board may delegate to such officer or executive employee similar
authority with respect to obtaining and retaining for the corporation the
services of attorneys, accountants, and other experts.
STOCK
35. CERTIFICATES. Certificates of stock shall be issued in numerical
order, and each stockholder shall be entitled to a certificate signed by the
president or a vice president, and by the treasurer or an assistant treasurer or
the secretary or an assistant secretary, certifying to the number of shares
owned by the stockholder. Any or all of the signatures on the certificate may be
a facsimile. In case any officer, transfer agent, or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent, or registrar before such certificate
is issued, such certificate may nevertheless be issued by the corporation with
the same effect as if such officer, transfer agent, or registrar who signed
such certificate, or whose facsimile signature shall have been placed thereon,
had not ceased to be such officer, transfer agent, or registrar of the
corporation.
36. TRANSFER. Transfers of stock shall be made only upon the transfer
books of the corporation, kept at the office of the corporation or respective
transfer agents designated to transfer the several classes of stock, and before
a new certificate is
- 17 -
<PAGE>
issued the old certificate shall be surrendered for cancellation. Until and
unless the Board of Directors appoints some other person, firm, or corporation
as its transfer agent or transfer clerk (and upon the revocation of any such
appointment, thereafter until a new appointment is similarly made) the secretary
of the corporation without the necessity of any formal action of the Board, and
the secretary, or any person designated by him, shall perform all of the duties
thereof.
37. REGISTERED STOCKHOLDERS. Registered stockholders only shall be
entitled to be treated by the corporation as the holders and owners in fact of
the shares standing in their respective names and the corporation shall not be
bound to recognize any equitable or other claim to or interest in such shares
on the part of any other person, whether or not it shall have express or other
notice thereof, except as expressly provided by the laws of the State of
Delaware.
38. LOST 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 corporation, alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate or certificates 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 corporation and its
transfer agents and registrars, if any, a bond in such sum as it may direct to
indemnify it against any claim that may be made against it with respect to the
certificate or certificates alleged to have been lost, stolen, or destroyed.
39. REGULATIONS. The Board of Directors shall have power and authority to
make all such rules and regulations as it may deem expedient concerning the
issue, transfer, conversion, and registration of certificates for shares of the
capital stock of the corporation, not inconsistent with the laws of the State of
Delaware, the Certificate of Incorporation of the corporation and these By-Laws.
40. FIXING RECORD DATE. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion, or exchange of stock or for the purpose of
any, other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than 60 nor less than 10 days before the date of
such meeting, nor more than 60 days prior to any other action. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting except that the Board
of Directors may fix a new record date for the adjourned meeting.
- 18 -
<PAGE>
DIVIDENDS AND FINANCE
41. DIVIDENDS. Dividends upon the outstanding shares of the corporation,
subject to the provisions of the Certificate of Incorporation and of any
applicable law and of these By-Laws, may be declared by the Board of Directors
at any meeting. Subject to such provisions, dividends may be paid in cash, in
property, or in shares of the capital stock of the corporation.
42. MONEYS. The moneys of the corporation shall be deposited in the name
of the corporation in such bank or banks or trust company or trust companies as
the Board of Directors shall designate, and shall be drawn out only by check
signed by persons designated by resolution adopted by the Board of Directors,
except that in the absence of action by the Board of Directors the Treasurer may
designate any bank or banks or trust company or trust companies in which moneys
of the corporation may be deposited, and to designate the person or persons who
may sign checks drawn on any particular bank account or bank accounts of the
corporation, whether created by direct designation of the Board of Directors or
by an authorized officer or officers as aforesaid.
43. FISCAL YEAR. The Board of Directors shall have power to fix and
from time-to-time change the fiscal year of the corporation. In the absence of
action by the Board of Directors, however, the fiscal year of the corporation
shall end on the last day of the last accounting week in March of each year,
until such time, if any, as the fiscal year shall be changed by the Board of
Directors.
BOOKS AND RECORDS
44. BOOKS, ACCOUNTS, AND RECORDS. The books, accounts, and records of the
corporation, except as may be otherwise required by the laws of the State of
Delaware, may be kept outside the State of Delaware, at the place customarily,
treated as the corporation's headquarter's office, or such place or places as
the Board of Directors from time-to-time determine. The Board of Directors
shall determine whether, to what extent and the conditions upon which the
accounts and books of the corporation, or any of them, shall be open to the
inspection of the stockholders, and no stockholder shall have any right to
inspect any account or book or document of the corporation, except as conferred
by law or by resolution of the stockholders.
NOTICE
45. PROVISIONS. Whenever the provisions of the statutes of the State of
Delaware, the Certificate of Incorporation or these By-Laws require notice to be
given
- 19 -
<PAGE>
to any director, officer, or stockholder, they shall not be construed to require
actual personal notice. Notice by mail may be given in writing by depositing
the same in a post office or letter box, in a postpaid, sealed wrapper,
addressed to such director, officer, or stockholder at his or her address as the
same appears in the books of the corporation, and the time when the same shall
be mailed shall be deemed to be the time of the giving of such notice. If
notice be given by telephone facsimile copy, such notice shall be deemed to be
given when the same is sent over a telecommunication system.
46. WAIVER. Whenever any notice is required to be given under the
provisions of the statutes of the State of Delaware or of the Certificate of
Incorporation or of these By-Laws, a waiver thereof in writing, or by telephone,
facsimile copy, signed by the person or persons entitled to said notice whether
before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the 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 is not lawfully called or convened. Neither the business to
be transacted at, nor this purpose of, any regular or special meeting need be
specified in any written waiver of notice unless so required by the Certificate
of Incorporation or the By-Laws.
AMENDMENTS
47. AMENDMENTS. These By-Laws may be altered, amended or repealed by the
affirmative vote of a majority of the shares of stock issued and outstanding
and entitled to vote thereon, or, if the Certificate of Incorporation so
provides, by a majority of the Board of Directors of any meeting thereof.
- 20 -
<PAGE>
EXHIBIT 4.1A
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT is entered into as of the 26th day of June, 1996, by
and among INTERIM SERVICES INC., a Delaware corporation (the "Company"),
BOATMEN'S TRUST COMPANY ("Boatmen's"), and CHASE MELLON SHAREHOLDER SERVICES,
L.L.P., a New York Limited liability partnership ("Chase" or "Successor Rights
Agent").
R E C I T A L S
A. The Company and Boatmen's entered into that certain Rights
Agreement dated March 17, 1994, whereby the Company appointed Boatmen's as the
Rights Agent to act as agent for the Company and the holders of the Rights in
accordance with the terms and conditions of said Rights Agreement.
B. The Company desires to remove Boatmen's as Rights Agent and
appoint Chase as Successor Rights Agent.
C. The parties hereto desire that the Rights Agreement be amended to
accomplish the foregoing.
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Pursuant to Sections 21 and 27 of the Rights Agreement:
(a) the Company hereby appoints CHASE MELLON SHAREHOLDER SERVICES,
L.L.C., a New York limited liability partnership, whose principal office for the
purpose of this Amendment is 85 Challenger Road, Overpeck Center, Ridgefield
Park, New Jersey 07660, to act as agent for the Company and the holders of the
Rights in accordance with the terms and conditions of the Rights Agreement, and
Chase hereby accepts such appointment; and
(b) the Rights Agreement is hereby amended in its entirety as
necessary or appropriate to reflect the appointment of Chase as Successor Rights
Agent pursuant to this Amendment No. 1.
2. Chase represents, warrants and acknowledges to the Company that it
is either (a) a corporation organized and doing business under the laws of the
United States or of any state, in good standing, which is authorized under such
laws to exercise corporate trust or stock transfer powers and is subject to
supervision or examination by Federal or state authority and which has as of the
date hereof a combined capital and surplus of at least $25,000,000, or (b) an
affiliate of a corporation described in clause (a) of this sentence.
3. Boatmen's, as the current Rights Agent, and Chase, as a current
transfer agent of the Company, each hereby expressly waives any prior or
subsequent notice requirements associated with the appointment of Chase as
Successor Rights Agent, including the notice provision of Section 21 of the
Rights Agreement.
<PAGE>
4. As promptly as practicable, and in any event within thirty (30)
days after the effective date hereof, Boatmen's shall deliver and transfer to
Chase any property or documentation (or copies thereof) held by Boatmen's
regarding the Rights Agreement, and shall execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose of this Amendment
No. 1.
5. Upon completion by Boatmen's of the items set forth in paragraph 4
herein, the Company acquits, releases, and Forever discharges Boatmen's of and
from all actions, suits, sums or money, damages, claims and liabilities
whatsoever which the Company may have had or hereafter may have with respect to
any aspect of the Rights Agreement.
6. The Company and Boatmen's agree to indemnify and hold Chase, as
Successor Rights Agent, harmless from and against any and all acts of Boatmen's,
as the predecessor Rights Agent, together with all liability arising therefrom.
7. On the effective date of this Amendment No. l, Chase, as Successor
Rights Agent, shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent.
8. In all other respects, except as herein stated, the Rights
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
No. l to Rights Agreement, effective as of the date first above written.
INTERIM SERVICES INC.
By /s/ John B. Smith
----------------------------------------
John B. Smith, Senior Vice President,
Legal Counsel and Secretary
BOATMEN'S TRUST COMPANY
By /s/ (Illegible)
----------------------------------------
Its VICE-PRESIDENT
----------------------------------
CHASE MELLON SHAREHOLDER
SERVICES, L.L.C.
By /s/ (Illegible)
----------------------------------------
Its ASSISTANT VICE PRESIDENT
----------------------------------
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-27-1996
<PERIOD-START> DEC-30-1995
<PERIOD-END> SEP-27-1996
<CASH> 737
<SECURITIES> 0
<RECEIVABLES> 183,414
<ALLOWANCES> 2,650
<INVENTORY> 0
<CURRENT-ASSETS> 248,394
<PP&E> 81,774
<DEPRECIATION> 40,444
<TOTAL-ASSETS> 485,187
<CURRENT-LIABILITIES> 183,983
<BONDS> 0
0
0
<COMMON> 155
<OTHER-SE> 241,049
<TOTAL-LIABILITY-AND-EQUITY> 485,187
<SALES> 0
<TOTAL-REVENUES> 840,624
<CGS> 0
<TOTAL-COSTS> 583,783
<OTHER-EXPENSES> 29,142
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5,138
<INCOME-PRETAX> 27,875
<INCOME-TAX> 14,905
<INCOME-CONTINUING> 12,970<F1>
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 12,970<F1>
<EPS-PRIMARY> .81
<EPS-DILUTED> 0
<FN>
<F1>Includes merger costs of $7.6 million.
</FN>
</TABLE>
