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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): May 8, 1998
- - - - - - - - - - -
Paradise Holdings, Inc.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation)
1 - 12932 Pending
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(Commission File Number) (I.R.S. Employer Identification No.)
1610 Aden Way, Suite 145, Sacramento, CA 95815
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(Address of Principal Executive Offices) (Zip Code)
(916) 568-2310
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(Registrant's Telephone Number, Including Area Code)
Java Centrale, Inc.
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(Former Name or Former Address, if Changed Since Last Report
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ITEM 5. OTHER EVENTS.
On May 8, 1998, Paradise Holdings, Inc., a Delaware corporation (the
"Registrant") and Java Centrale, Inc., a California corporation and the
Registrant's previous corporate parent, ("Java" and, together with the
Registrant, the "Company"), effected a merger, pursuant to which the Registrant
was the surviving corporation and Java ceased to exist as a separate entity (the
"Reincorporation"). Prior to the Reincorporation, the Registrant was a
wholly-owned subsidiary of Java formed to facilitate the merger transaction, and
the purpose of the Reincorporation was to change the Company's state of
incorporation from California to Delaware. The Reincorporation was approved by
the shareholders of Java at its Annual Meeting of Shareholders held on November
25, 1997.
The Reincorporation is not expected to result in any change of control of
the Company or any change in the Company's business, assets, or liabilities. It
will not cause the Company's corporate headquarters to be moved and will not
result in any change or relocation of the Company's Board, management, or
employees.
The Company's shareholders will not be required to undertake a mandatory
exchange of their shares of Java Common Stock. By virtue of the
Reincorporation, all certificates representing previously outstanding shares of
Java's Common Stock will automatically represent an equal number of shares of
Java's Common Stock.
The Certificate of Incorporation and By-laws of the Registrant are attached
hereto as exhibits.
ITEM 7. FINANCIAL STATEMENT AND EXHIBITS
(a) Financial Statements
Not Applicable
(b) Pro Forma Financial Information
Not Applicable
Not Applicable
(c) Exhibits
3.1 Certificate of Incorporation of the Registrant.
3.2 Bylaws of the Registrant.
2
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: May 11, 1998 PARADISE HOLDINGS, INC.
(Registrant)
/s/ BRADLEY B. LANDIN
-------------------------------------------
By: Bradley B. Landin
Vice President and Corporate Secretary
3
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INDEX TO EXHIBITS
Exhibit
Number Description
- ------ -----------
3.1 Certificate of Incorporation of the Registrant.
3.2 Bylaws of the Registrant.
4
<PAGE>
Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
PARADISE HOLDINGS, INC.
------------------------------
The undersigned, a natural person (the "Sole Incorporator"), for the
purpose of organizing a corporation to conduct the business and promote the
purposes hereinafter stated, under the provisions and subject to the
requirements of the laws of the State of Delaware hereby certifies that:
I
The name of this corporation is Paradise Holdings, Inc.
II
The address of the registered office of this corporation in the State of
Delaware is c/o The Corporation Trust Company, The Corporation Trust Center,
1209 Orange Street, Wilmington, Delaware 19801. The registered agent of the
Corporation in the State of Delaware at such address is The Corporation Trust
Company.
III
The purpose of this 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.
IV
The corporation is authorized to issue two classes of stock, which shall be
designated respectively "Common Stock" and "Preferred Stock".
A. The number of shares of Common Stock which the corporation is
authorized to issue is Fifty Million (50,000,000), each having a par value of
one-tenth of one cent ($.001).
B. (1) The number of shares of Preferred Stock which the corporation is
authorized to issue is Twenty Five Million (25,000,000), each having a par value
of one-tenth of one cent ($.001).
(2) The Preferred Stock may be issued in one or more series. The
Board of Directors is authorized to file a Certificate of Designations (a
"Preferred Stock Designation") pursuant to the Delaware General Corporation Law
(the "DGCL"), to fix the number of any such
<PAGE>
series of Preferred Stock, and to determine the designation of any such series,
in accordance with the requirements of the DGCL. The Board of Directors is
further authorized to determine or alter the rights, preferences, privileges,
and restrictions granted to or imposed upon any wholly unissued series of
Preferred Stock and, within the limits and restrictions stated in any resolution
or resolutions of the Board of Directors originally fixing the number of shares
constituting any series, to increase or decrease (but not below the number of
shares of such series then outstanding) the number of shares of any such series
subsequent to the issuance of shares of that series.
V
For the management of the business and for the conduct of the affairs of
the corporation, and in further definition, limitation and regulation of the
powers of the corporation, of its directors, and of its stockholders or any
class thereof, as the case may be, it is further provided as follows:
A. (1) The management of the business and the conduct of the affairs of
the corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be set forth
in the bylaws and may be changed from time to time by amendment to the bylaws as
provided therein and herein.
(2) Subject to the rights (if any) of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances,
directors shall be elected at each annual meeting of stockholders for a term of
one year. Each director shall serve until his successor is duly elected and
qualified or until his death, resignation or removal. No decrease in the number
of directors constituting the Board of Directors shall shorten the term of any
incumbent director.
(3) Subject to the rights (if any) of the holders of any series of
Preferred Stock, the Board of Directors or any individual director may be
removed from office at any time, with or without cause, by the affirmative vote
of the holders of a majority of the voting power of all the then-outstanding
shares of voting stock of the corporation entitled to vote at an election of
directors.
(4) Subject to the rights (if any) of the holders of any series of
Preferred Stock, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal, or other causes, and any newly created
directorships resulting from any increase in the number of directors, shall,
except as otherwise provided by law, be filled only by the affirmative vote of a
majority of the directors then in office, even though less than a quorum of the
Board of Directors, and not by the stockholders, unless the Board of Directors
determines by resolution that any such vacancies or newly created directorships
shall be filled by the stockholders. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term of
the director for which the vacancy was created or occurred and until such
director's successor shall have been elected and qualified.
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(5) The directors of the corporation need not be elected by written
ballot unless the Bylaws so provide.
B. (1) The stockholders of the corporation may alter or amend the
corporation's Bylaws, or adopt new Bylaws, by the affirmative vote of at least
sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the
then-outstanding shares of the voting stock of the corporation. The Board of
Directors shall also have the power to adopt, amend, or repeal Bylaws.
(2) Special meetings of the stockholders of the corporation may be
called, for any purpose or purposes, by (i) the Chairman of the Board of
Directors, (ii) the Chief Executive Officer, or (iii) the Board of Directors
pursuant to a resolution adopted by a majority of the number of directors. If a
special meeting of the stockholders is called in accordance with clauses (i) or
(ii) of this Article V (B)(2), the Board of Directors shall fix the date on
which such meeting shall be held; PROVIDED that such date shall fall between
thirty-five (35) and one hundred twenty (120) days after the date on which such
a meeting has been called.
(3) Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the corporation shall be given in the manner provided in the
Bylaws of the corporation.
VI
A. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for any breach of fiduciary
duty as a director, EXCEPT FOR liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law (iii) in connection with any unlawful declaration or payment of
dividends, stock redemptions, or stock repurchases under Section 174 of the
DGCL, or (iv) for any transaction from which the director derived an improper
personal benefit. If the DGCL is amended after approval by the stockholders of
this Article to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director shall be
eliminated or limited to the fullest extent permitted by the DGCL as so amended.
B. Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time or prior to the
time of such repeal or modification.
VII
A. The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, except as provided in paragraph B of this
Article VII, and all rights conferred upon the
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stockholders herein are granted subject to this reservation.
B. Notwithstanding any other provisions of this Certificate of
Incorporation, or any provision of law which might otherwise permit a lesser
vote or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the Voting Stock required by law, this Certificate
of Incorporation or any Preferred Stock Designation, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting
power of all of the then-outstanding shares of the Voting Stock, voting together
as a single class, shall be required to alter, amend or repeal Articles V, VI
and VII.
VIII
The name and the mailing address of the Sole Incorporator are as follows:
NAME MAILING ADDRESS
Elisa Lowy C/o Rosenblum, Parish & Isaacs, PC
160 West Santa Clara Street, 15th Floor
San Jose, CA 95113
IN WITNESS WHEREOF, this Certificate has been subscribed this ____ day of
March, 1998, by the undersigned, who affirms that the statements made herein are
true and correct.
/s/ ELISA LOWY
-----------------------------------
Elisa Lowy
Sole Incorporator
<PAGE>
Exhibit 3.2
BYLAWS
OF
PARADISE HOLDINGS, INC.
(A DELAWARE CORPORATION)
<PAGE>
TABLE OF CONTENTS
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Page
ARTICLE I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. Registered Office. . . . . . . . . . . . . . . . . . . . . . . 4
Section 2. Other Offices. . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. Corporate Seal.. . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1. Place Of Meetings. . . . . . . . . . . . . . . . . . . . . . . 5
Section 2. Annual Meeting.. . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3. Special Meetings.. . . . . . . . . . . . . . . . . . . . . . . 6
Section 4. Notice Of Meetings.. . . . . . . . . . . . . . . . . . . . . . 6
Section 5. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 6. Adjournment And Notice Of Adjourned Meetings.. . . . . . . . . 7
Section 7. Voting Rights. . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 8. Joint Owners Of Stock. . . . . . . . . . . . . . . . . . . . . 8
Section 9. List Of Stockholders . . . . . . . . . . . . . . . . . . . . . 8
Section 10. Action Without Meeting. . . . . . . . . . . . . . . . . . . . 8
Section 11. Organization. . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1. Number And Term Of Office. . . . . . . . . . . . . . . . . . . 9
Section 2. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3. Classes Of Directors.. . . . . . . . . . . . . . . . . . . . . 10
Section 4. Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5. Resignation. . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 6. Removal. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 7. Meetings.. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 8. Quorum And Voting. . . . . . . . . . . . . . . . . . . . . . . 11
Section 9. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 12
Section 10. Fees And Compensation.. . . . . . . . . . . . . . . . . . . . 12
Section 11. Committees. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 12. Organization. . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1. Officers Designated. . . . . . . . . . . . . . . . . . . . . . 11
Section 2. Tenure And Duties Of Officers. . . . . . . . . . . . . . . . . 14
Section 3. Delegation Of Authority. . . . . . . . . . . . . . . . . . . . 16
Section 4. Resignations . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 5. Removal. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 1. Execution Of Corporate Instruments . . . . . . . . . . . . . . 17
Section 2. Voting Of Securities Owned By The Corporation. . . . . . . . . 18
ARTICLE VII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1. Form And Execution Of Certificates.. . . . . . . . . . . . . . 18
Section 2. Lost Certificates. . . . . . . . . . . . . . . . . . . . . . . 18
Section 3. Transfers. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4. Fixing Record Dates. . . . . . . . . . . . . . . . . . . . . . 19
i
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TABLE OF CONTENTS
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Page
Section 5. Registered Stockholders. . . . . . . . . . . . . . . . . . . . 20
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 1. Execution Of Other Securities. . . . . . . . . . . . . . . . . 20
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 1. Declaration Of Dividends . . . . . . . . . . . . . . . . . . . 21
Section 2. Dividend Reserve . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE X. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 1. Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . . 21
ii
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TABLE OF CONTENTS
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Page
ARTICLE XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 1. Indemnification Of Directors, Executive Officers,
Other Officers, Employees And Other Agents . . . . . . . . . 21
ARTICLE XII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 1. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE XIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 1. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 1. Loans To Officers. . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE XVERROR! BOOKMARK NOT DEFINED.
Section 1. Confidentialilty of Corporate Records. . . . . . . . . . . . . 23
Section 2. Non-Disclosure Statement.. . . . . . . . . . . . . . . . . . . 23
iii
<PAGE>
BYLAWS
OF
PARADISE HOLDINGS, INC.
(A DELAWARE CORPORATION)
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office of the corporation in
the State of Delaware shall be in the City of Wilmington, County of New Castle.
Section 2. OTHER OFFICES. The corporation shall also have and maintain an
office or principal place of business at such place as may be fixed by the Board
of Directors, and may also have offices at such other places, both within and
without the State of Delaware, as the Board of Directors may from time to time
determine or the business of the corporation may require.
ARTICLE II
CORPORATE SEAL
Section 1. CORPORATE SEAL. The corporate seal shall consist of a die
bearing the name of the corporation and the inscription, "Corporate
Seal-Delaware." Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
<PAGE>
ARTICLE III
STOCKHOLDERS' MEETINGS
Section 1. PLACE OF MEETINGS. Meetings of the stockholders of the
corporation shall be held at such place, either within or without the State of
Delaware, as may be designated from time to time by the Board of Directors, or,
if not so designated, then at the office of the corporation required to be
maintained pursuant to Article I Section 2 hereof.
Section 2. ANNUAL MEETING.
(a) The annual meeting of the stockholders of the corporation, for the
purpose of election of directors and for such other business as may lawfully
come before it, shall be held on such date and at such time as may be designated
from time to time by the Board of Directors; PROVIDED, HOWEVER, that each
successive annual meeting shall be held on a date which falls within thirteen
months after the preceding annual meeting.
(b) In the event that any given annual meeting of stockholders is not held
as provided in the foregoing paragraph, the Board of Directors shall cause such
a meeting to be held as soon as is convenient thereafter, and any business
transacted or election held at such later meeting shall be valid as if
transacted or held at an annual meeting held within the time period described in
the foregoing paragraph.
(c) Nominations for election of members of the Board of Directors may be
made by the Board of Directors or by any holder of any outstanding class of
capital stock of the corporation entitled to vote for the election of Directors.
Notice of intention to make any nominations (other than for persons named in the
Notice of any meeting called for the election of Directors at the direction of
the Board of Directors) are required to be made in writing and to be by the
later of: (i) the close of business 21 days prior to any meeting of
stockholders called for the election of Directors or (ii) 10 days after the date
of mailing of notice of the meeting to stockholders. Such notification must
contain the following information, to the extent known to the notifying
stockholder: (a) the name and address of each proposed nominee; (b) the
principal occupation of each proposed nominee; (c) the number of shares of
capital stock of the corporation owned by each proposed nominee; (d) the name
and residence address of the notifying stockholder; (e) the number of shares of
capital stock of the corporation owned by the notifying stockholder; (f) whether
the proposed nominee has ever been convicted of or pleaded NOLO CONTENDERE to
any criminal offense involving dishonesty or breach of trust, filed a petition
in bankruptcy, or been adjudged bankrupt; and (g) any other information relating
to such nominee that is required to be disclosed in solicitation proxies for the
election of directors or is otherwise required to be provided by the stockholder
pursuant to Section 14A of the Securities Exchange Act of 1934, as amended. The
notification shall be signed by the nominating stockholder and by each nominee,
and shall be accompanied by a written consent to be named as a nominee for
election as a Director from each proposed nominee, and shall confirm the
accuracy of all of the above-described information contained in the notice.
Nominations not made in
5
<PAGE>
accordance with these procedures shall be disregarded by the chairperson of the
meeting, and upon his instructions, the inspectors of election shall disregard
all votes cast for each such nominee. The foregoing requirements do not apply
to the nomination of a person to replace a proposed nominee who has become
unable to serve as a Director between the last day for giving notice in
accordance with this paragraph and the date of election of Directors if the
procedure called for in this paragraph was followed with respect to the
nomination of the nominee who has become unable to serve.
Section 3. SPECIAL MEETINGS.
(a) Special meetings of the stockholders of the corporation may be called,
for any purpose or purposes, by (i) the Chairman of the Board of Directors, (ii)
the Chief Executive Officer, or (iii) the Board of Directors pursuant to a
resolution adopted by a majority of the total number of authorized directors
(whether or not there exist any vacancies in previously authorized directorships
at the time any such resolution is presented to the Board of Directors for
adoption).
(b) If a special meeting is called by any person or persons other than the
Board of Directors, the request shall be in writing, specifying the general
nature of the business proposed to be transacted, and shall be delivered
personally or sent by registered mail or by telegraphic or other facsimile
transmission to the Chairman of the Board of Directors, the Chief Executive
Officer, or the Secretary of the corporation. No business may be transacted at
such special meeting otherwise than specified in such notice. The Board of
Directors shall determine the time and place of such special meeting, which
shall be held not less than thirty-five (35) nor more than one hundred twenty
(120) days after the date of the receipt of the request. Upon determination of
the time and place of the meeting, the officer receiving the request shall cause
notice to be given to the stockholders entitled to vote, in accordance with the
provisions of Article III Section 4 and Article XII Section 1 of these Bylaws.
If the notice is not given within sixty (60) days after the receipt of the
request, the person or persons requesting the meeting may set the time and place
of the meeting and give the notice. Nothing contained in this paragraph (b)
shall be construed as limiting, fixing, or affecting the time when a meeting of
stockholders called by action of the Board of Directors may be held.
Section 4. NOTICE OF MEETINGS. Except as otherwise provided by law or
the Certificate of Incorporation, written notice of each meeting of stockholders
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote at such meeting, such
notice to specify the place, date and hour and purpose or purposes of the
meeting. Notice of the time, place and purpose of any meeting of stockholders
may be waived in writing, signed by the person entitled to notice thereof,
either before or after such meeting, and will be waived by any stockholder by
such stockholder's attendance thereat in person or by proxy, except when the
stockholder 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. Any stockholder so waiving notice of such
meeting shall be bound by the proceedings of any such meeting in all respects as
if due notice thereof had been given.
6
<PAGE>
Section 5. QUORUM. At all meetings of stockholders, except where
otherwise provided by statute or by the Certificate of Incorporation, or by
these Bylaws, the presence, in person or by proxy duly authorized, of the
holders of a majority of the outstanding shares of stock entitled to vote shall
constitute a quorum for the transaction of business. In the absence of a
quorum, any meeting of stockholders may be adjourned, from time to time, either
by the chairman of the meeting or by vote of the holders of a majority of the
shares represented thereat, but no other business shall be transacted at such
meeting. The stockholders present at a duly called or convened meeting, at
which a quorum is present, may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum. Except as otherwise provided by law, the Certificate of Incorporation
or these Bylaws, all action taken by the holders of a majority of the vote cast,
excluding abstentions, at any meeting at which a quorum is present shall be
valid and binding upon the corporation; provided, however, that directors shall
be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
directors. Where a separate vote by a class or classes or series is required,
except where otherwise provided by the statute or by the Certificate of
Incorporation or these Bylaws, a majority of the outstanding shares of such
class or classes or series, present in person or represented by proxy, shall
constitute a quorum entitled to take action with respect to that vote on that
matter and, except where otherwise provided by the statute or by the Certificate
of Incorporation or these Bylaws, the affirmative vote of the majority
(plurality, in the case of the election of directors) of the votes cast,
including abstentions, by the holders of shares of such class or classes or
series shall be the act of such class or classes or series.
Section 6. ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS. Any meeting
of stockholders, whether annual or special, may be adjourned from time to time
either by the chairman of the meeting or by the vote of a majority of the shares
casting votes, excluding abstentions. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken.
At the adjourned meeting, the corporation may transact any business which might
have been transacted at the original meeting. If the adjournment is for more
than thirty (30) days or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 7. VOTING RIGHTS. For the purpose of determining those
stockholders entitled to vote at any meeting of the stockholders, except as
otherwise provided by law, only persons in whose names shares stand on the stock
records of the corporation on the record date, as provided in Article III
Section 9 of these Bylaws, shall be entitled to vote at any meeting of
stockholders. Every person entitled to vote shall have the right to do so
either in person or by an agent or agents authorized by a proxy granted in
accordance with Delaware law. An agent so appointed need not be a stockholder.
No proxy shall be voted after three (3) years from its date of creation
7
<PAGE>
unless the proxy provides for a longer period.
Section 8. JOINT OWNERS OF STOCK. If shares or other securities having
voting power stand of record in the names of two (2) or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common, tenants
by the entirety, or otherwise, or if two (2) or more persons have the same
fiduciary relationship respecting the same shares, unless the Secretary is given
written notice to the contrary and is furnished with a copy of the instrument or
order appointing them or creating the relationship wherein it is so provided,
their acts with respect to voting shall have the following effect: (a) if only
one (1) votes, such stockholder's act binds all; (b) if more than one (1)
votes, the act of the majority so voting binds all; (c) if more than one (1)
votes, but the vote is evenly split on any particular matter, each faction may
vote the securities in question proportionally, or may apply to the Delaware
Court of Chancery for relief as provided in Section 217(b) of the Delaware
General Corporation Law (the "DGCL"). If the instrument filed with the
Secretary shows that any such tenancy is held in unequal interests, a majority
or even-split for the purpose of subsection (c) shall be a majority or
even-split in interest.
Section 9. LIST OF STOCKHOLDERS. The Secretary shall prepare and make,
at least ten (10) days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at said meeting, arranged in alphabetical
order, showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall be
produced and kept at the time and place of meeting during the whole time thereof
and may be inspected by any stockholder who is present.
Section 10. ACTION WITHOUT MEETING.
(a) Any action which may be taken at any annual or special meeting of
stockholders may be taken without a meeting and without prior notice, if a
consent, in writing, setting forth the action so taken, shall be signed by the
holders of outstanding shares 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 and delivered to the
corporation by delivery to its principal place of business or to any officer or
agent of the corporation having custody of the book in which proceedings of the
meetings of stockholders are recorded.
(b) Every written consent shall bear the date signature of each
stockholder who signs the consent and no action may be taken by written consent
unless the number of consents necessary to take such action have been delivered
to the corporation within sixty (60) days of the earliest dated consent.
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(c) Prompt notice of the taking of corporate action by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing to the action and who would otherwise have been entitled to notice of a
meeting at which the action had been taken, assuming the record date for the
meeting was the date that a sufficient number of consents were delivered to the
corporation to make the action effective.
Section 11. ORGANIZATION.
(a) At every meeting of stockholders, the Chairman of the Board of
Directors, or, if a Chairman has not been appointed or is absent, the President,
or, if the President is absent, a chairman of the meeting chosen by a majority
in interest of the stockholders entitled to vote, present in person or by proxy,
shall act as chairman. The Secretary, or, in his absence, an Assistant
Secretary directed to do so by the President, shall act as secretary of the
meeting.
(b) The Board of Directors of the corporation shall be entitled to make
such rules or regulations for the conduct of meetings of stockholders as it
shall deem necessary, appropriate or convenient. Subject to such rules and
regulations of the Board of Directors, if any, the chairman of the meeting shall
have the right and authority to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of such chairman, are necessary,
appropriate or convenient for the proper conduct of the meeting, including,
without limitation, establishing an agenda or order of business for the meeting,
rules and procedures for maintaining order at the meeting and the safety of
those present, limitations on participation in such meeting to stockholders of
record of the corporation and their duly authorized and constituted proxies and
such other persons as the chairman shall permit, restrictions on entry to the
meeting after the time fixed for the commencement thereof, limitations on the
time allotted to questions or comments by participants and regulation of the
opening and closing of the polls for balloting on matters which are to be voted
on by ballot. Unless and to the extent determined by the Board of Directors or
the chairman of the meeting, meetings of stockholders shall not be required to
be held in accordance with rules of parliamentary procedure.
ARTICLE IV
DIRECTORS
Section 1. NUMBER AND TERM OF OFFICE. The authorized number of
directors shall be not less than four (4) nor more than seven (7), unless and
until changed by an amendment to this Article IV Section 1 of these Bylaws
adopted by a vote of at least sixty-six and two-thirds percent (66 2/3%) of the
stockholders. The exact number of directors within said range shall be fixed by
an amendment to this Article IV Section 1 adopted by the Board of Directors; and
unless and until so amended, the exact number of directors is hereby fixed at
four (4). A reduction in the authorized number of directors shall not remove
any director prior to the expiration of such director's term of office.
Directors need not be stockholders unless so required
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by the Certificate of Incorporation. If for any cause, the directors shall not
have been elected at an annual meeting, they may be elected as soon thereafter
as convenient at a special meeting of the stockholders called for that purpose
in the manner provided in these Bylaws.
Section 2. POWERS. The powers of the corporation shall be exercised,
its business conducted and its property controlled by the Board of Directors,
except as may be otherwise provided by statute or by the Certificate of
Incorporation.
Section 3. CLASSES OF DIRECTORS. Subject to the rights of the holders
of any series of Preferred Stock to elect additional directors under specified
circumstances, directors shall be elected at each annual meeting of stockholders
for a term of one year. Each director shall serve until his successor is duly
elected and qualified or until his death, resignation or removal. No decrease
in the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
Section 4. VACANCIES. Unless otherwise provided in the Certificate of
Incorporation, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of directors, shall
unless the Board of Directors determines by resolution that any such vacancies
or newly created directorships shall be filled by stockholders, be filled only
by the affirmative vote of a majority of the directors then in office, even
though less than a quorum of the Board of Directors. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the director for which the vacancy was created or occurred and
until such director's successor shall have been elected and qualified. A
vacancy in the Board of Directors shall be deemed to exist under this Bylaw in
the case of the death, removal or resignation of any director.
Section 5. RESIGNATION. Any director may resign at any time by
delivering such director's written resignation to the Secretary, such
resignation to specify whether it will be effective at a particular time, upon
receipt by the Secretary or at the pleasure of the Board of Directors. If no
such specification is made, it shall be deemed effective at the pleasure of the
Board of Directors. When one or more directors shall resign from the Board of
Directors, effective at a future date, a majority of the directors then in
office, including those who have so resigned, shall have power to fill such
vacancy or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each Director so chosen shall hold
office for the unexpired portion of the term of the Director whose place shall
be vacated and until such Director's successor shall have been duly elected and
qualified.
Section 6. REMOVAL. Subject to the rights of the holders of any series
of Preferred Stock, the Board of Directors or any individual director may be
removed from office at any time with or without cause by the affirmative vote of
the holders of a majority of the voting power of all the then-outstanding shares
of voting stock of the corporation, entitled to vote at an election of directors
(the "Voting Stock").
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Section 7. MEETINGS.
(a) ANNUAL MEETINGS. The annual meeting of the Board of Directors shall
be held immediately after the annual meeting of stockholders and at the place
where such meeting is held. No notice of an annual meeting of the Board of
Directors shall be necessary and such meeting shall be held for the purpose of
electing officers and transacting such other business as may lawfully come
before it.
(b) REGULAR MEETINGS. Except as hereinafter otherwise provided, regular
meetings of the Board of Directors shall be held in the office of the
corporation required to be maintained pursuant to Article I Section 2 hereof.
Unless otherwise restricted by the Certificate of Incorporation, regular
meetings of the Board of Directors may also be held at any place within or
without the State of Delaware which has been designated by resolution of the
Board of Directors or the written consent of all directors.
(c) SPECIAL MEETINGS. Unless otherwise restricted by the Certificate of
Incorporation, special meetings of the Board of Directors may be held at any
time and place within or without the State of Delaware whenever called by the
Chairman of the Board, the President or any two of the directors.
(d) TELEPHONE MEETINGS. Any member of the Board of Directors, or of any
committee thereof, may participate in a meeting by means of conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting by such means
shall constitute presence in person at such meeting.
(e) NOTICE OF MEETINGS. Notice of the time and place of all special
meetings of the Board of Directors shall be given as provided in Article XII of
these Bylaws at least forty-eight (48) hours before the date and time of the
meeting, or sent in writing to each director by first class mail, charges
prepaid, at least three (3) days before the date of the meeting. Notice of any
meeting may be waived in writing at any time before or after the meeting and
will be waived by any director by attendance thereat, except when the director
attends the 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.
(f) WAIVER OF NOTICE. The transaction of all business at any meeting of
the Board of Directors, or any committee thereof, however called or noticed, or
wherever held, shall be as valid as though had at a meeting duly held after
regular call and notice, if a quorum be present and if, either before or after
the meeting, each of the directors not present shall sign a written waiver of
notice. All such waivers shall be filed with the corporate records or made a
part of the minutes of the meeting.
Section 8. QUORUM AND VOTING.
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(a) QUORUM. Unless the Certificate of Incorporation requires a greater
number and except with respect to indemnification questions arising under
Article XI Section 1 hereof, for which a quorum shall be one-third of the exact
number of directors fixed from time to time in accordance with these Bylaws, a
quorum of the Board of Directors shall consist of a majority of the exact number
of directors fixed from time to time by the Board of Directors in accordance
with the Certificate of Incorporation; provided, however, at any meeting whether
a quorum be present or otherwise, a majority of the directors present may
adjourn from time to time until the time fixed for the next regular meeting of
the Board of Directors, without notice other than by announcement at the
meeting.
(b) VOTING. At each meeting of the Board of Directors at which a quorum
is present, all questions and business shall be determined by the affirmative
vote of a majority of the directors present, unless a different vote be required
by law, the Certificate of Incorporation or these Bylaws.
Section 9. ACTION WITHOUT MEETING. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and such writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 10. FEES AND COMPENSATION. Directors shall be entitled to such
compensation for their services as may be approved by the Board of Directors,
including, if so approved, by resolution of the Board of Directors, a fixed sum
and expenses of attendance, if any, for attendance at each regular or special
meeting of the Board of Directors and at any meeting of a committee of the Board
of Directors. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity as an officer,
agent, employee, or otherwise and receiving compensation therefor.
Section 11. COMMITTEES.
(a) EXECUTIVE COMMITTEE. The Board of Directors may by resolution passed
by a majority of the whole Board of Directors appoint an Executive Committee to
consist of one (1) or more members of the Board of Directors. The Executive
Committee, to the extent permitted by law and provided in the resolution of the
Board of Directors shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
corporation provided, however, that no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation (except that
a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board of Directors
fix the designations and any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of
the corporation or the conversion into, or the exchange of such shares for,
shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation
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or fix the number of shares of any series of stock or authorize the increase or
decrease of the shares of any series), adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, recommending
to the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the bylaws of the corporation.
(b) OTHER COMMITTEES. The Board of Directors may, by resolution passed by
a majority of the whole Board of Directors, from time to time appoint such other
committees as may be permitted by law. Such other committees appointed by the
Board of Directors shall consist of one (1) or more members of the Board of
Directors and shall have such powers and perform such duties as may be
prescribed by the resolution or resolutions creating such committees, but in no
event shall such committee have the powers denied to the Executive Committee in
these Bylaws.
(c) TERM. Each member of a committee of the Board of Directors shall
serve a term on the committee coexistent with such member's term on the Board of
Directors. The Board of Directors, subject to the provisions of subsections (a)
or (b) of this Article IV Section 11 may at any time increase or decrease the
number of members of a committee or terminate the existence of a committee. The
membership of a committee member shall terminate on the date of such member's
death or voluntary resignation from the committee or from the Board of
Directors. The Board of Directors may at any time for any reason remove any
individual committee member and the Board of Directors may fill any committee
vacancy created by death, resignation, removal or increase in the number of
members of the committee. 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, and, in addition, in the
absence or disqualification of any member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
(d) MEETINGS. Unless the Board of Directors shall otherwise provide,
regular meetings of the Executive Committee or any other committee appointed
pursuant to this Article shall be held at such times and places as are
determined by the Board of Directors, or by any such committee, and when notice
thereof has been given to each member of such committee, no further notice of
such regular meetings need be given thereafter. Special meetings of any such
committee may be held at any place which has been determined from time to time
by such committee, and may be called by any director who is a member of such
committee, upon written notice to the members of such committee of the time and
place of such special meeting given in the manner provided for the giving of
written notice to members of the Board of Directors of the time and place of
special meetings of the Board of Directors. Notice of any special meeting of
any committee may be waived in writing at any time before or after the meeting
and will be waived by any director by attendance thereat, except when the
director attends such special 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. A majority of the
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authorized number of members of any such committee shall constitute a quorum for
the transaction of business, and the act of a majority of those present at any
meeting at which a quorum is present shall be the act of such committee.
Section 12. ORGANIZATION. At every meeting of the directors, the
Chairman of the Board of Directors, or, if a Chairman has not been appointed or
is absent, the President, or if the President is absent, the most senior Vice
President, or, in the absence of any such officer, a chairman of the meeting
chosen by a majority of the directors present, shall preside over the meeting.
The Secretary, or in the Secretary's absence, an Assistant Secretary directed to
do so by the President, shall act as secretary of the meeting.
ARTICLE V
OFFICERS
Section 1. OFFICERS DESIGNATED. The officers of the corporation shall
include, if and when designated by the Board of Directors, the Chairman of the
Board of Directors, the Chief Executive Officer, the President, one or more Vice
Presidents, the Secretary, the Chief Financial Officer, the Treasurer, the
Controller, all of whom shall be elected at the annual organizational meeting of
the Board of Directors. The Board of Directors may also appoint one or more
Assistant Secretaries, Assistant Treasurers, Assistant Controllers and such
other officers and agents with such powers and duties as it shall deem
necessary. The Board of Directors may assign such additional titles to one or
more of the officers as it shall deem appropriate. Any one person may hold any
number of offices of the corporation at any one time unless specifically
prohibited therefrom by law. The salaries and other compensation of the
officers of the corporation shall be fixed by or in the manner designated by the
Board of Directors.
Section 2. TENURE AND DUTIES OF OFFICERS.
(a) GENERAL. All officers shall hold office at the pleasure of the Board
of Directors and until their successors shall have been duly elected and
qualified, unless sooner removed. Any officer elected or appointed by the Board
of Directors may be removed at any time by the
Board of Directors. If the office of any officer becomes vacant for any reason,
the vacancy may be filled by the Board of Directors.
(b) DUTIES OF CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the
Board of Directors, when present, shall preside at all meetings of the
stockholders and the Board of Directors. The Chairman of the Board of Directors
shall perform other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board of Directors
shall designate from time to time. If there is no President, then the Chairman
of the Board of Directors shall also serve as the Chief Executive Officer of the
corporation and shall have the powers and duties prescribed in paragraph (c) of
this Article V Section 2.
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(c) DUTIES OF PRESIDENT. The President shall preside at all meetings of
the stockholders and at all meetings of the Board of Directors, unless the
Chairman of the Board of Directors has been appointed and is present. Unless
some other officer has been elected Chief Executive Officer of the corporation,
the President shall be the chief executive officer of the corporation and shall,
subject to the control of the Board of Directors, have general supervision,
direction and control of the business and officers of the corporation. The
President shall perform other duties commonly incident to his office and shall
also perform such other duties and have such other powers as the Board of
Directors shall designate from time to time.
(d) DUTIES OF VICE PRESIDENTS. The Vice Presidents may assume and perform
the duties of the President in the absence or disability of the President or
whenever the office of President is vacant. The Vice Presidents shall perform
other duties commonly incident to their office and shall also perform such other
duties and have such other powers as the Board of Directors or the President
shall designate from time to time.
(e) DUTIES OF SECRETARY. The Secretary shall attend all meetings of the
stockholders and of the Board of Directors and shall record all acts and
proceedings thereof in the minute book of the corporation. The Secretary shall
give notice in conformity with these Bylaws of all meetings of the stockholders
and of all meetings of the Board of Directors and any committee thereof
requiring notice. The Secretary shall perform all other duties given him in
these Bylaws and other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board of Directors
shall designate from time to time. The President may direct any Assistant
Secretary to assume and perform the duties of the Secretary in the absence or
disability of the Secretary, and each Assistant Secretary shall perform other
duties commonly incident to his office and shall also perform such other duties
and have such other powers as the Board of Directors or the President shall
designate from time to time.
(f) DUTIES OF CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
keep or cause to be kept the books of account of the corporation in a thorough
and proper manner and shall render statements of the financial affairs of the
corporation in such form and as often as required by the Board of Directors or
the President. The Chief Financial Officer, subject to the order of the Board
of Directors, shall have the custody of all funds and securities of the
corporation. The Chief Financial Officer shall perform other duties commonly
incident to his office and shall also perform such other duties and have such
other powers as the Board of Directors or the President shall designate from
time to time. The President may direct the Treasurer or any Assistant
Treasurer, or the Controller or any Assistant Controller to assume and perform
the duties of the Chief Financial Officer in the absence or disability of the
Chief Financial Officer, and each Treasurer and Assistant Treasurer and each
Controller and Assistant Controller shall perform other duties commonly incident
to his office and shall also perform such other duties and have such other
powers as the Board of Directors or the President shall designate from time to
time.
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Section 3. DELEGATION OF AUTHORITY. The Board of Directors may from
time to time delegate the powers or duties of any officer to any other officer
or agent, notwithstanding any provision hereof.
Section 4. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Board of Directors or to the President or to the
Secretary. Any such resignation shall be effective when received by the person
or persons to whom such notice is given, unless a later time is specified
therein, in which event the resignation shall become effective at such later
time. Unless otherwise specified in such notice, the acceptance of any such
resignation shall not be necessary to make it effective. Any resignation shall
be without prejudice to the rights, if any, of the corporation under any
contract with the resigning officer.
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Section 5. REMOVAL. Any officer may be removed from office at any
time, either with or without cause, by the affirmative vote of a majority of the
directors in office at the time, or by the unanimous written consent of the
directors in office at the time, or by any committee or superior officers upon
whom such power of removal may have been conferred by the Board of Directors.
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING
OF SECURITIES OWNED BY THE CORPORATION
Section 1. EXECUTION OF CORPORATE INSTRUMENTS.
(a) DETERMINATION OF SIGNATORY. The Board of Directors may, in its
discretion, determine the method and designate the signatory officer or
officers, or other person or persons, to execute on behalf of the corporation
any corporate instrument or document, or to sign on behalf of the corporation
the corporate name without limitation, or to enter into contracts on behalf of
the corporation, except where otherwise provided by law or these Bylaws, and
such execution or signature shall be binding upon the corporation.
(b) REQUIRED SIGNATORIES. Unless otherwise specifically determined by the
Board of Directors or otherwise required by law, promissory notes, deeds of
trust, mortgages and other evidences of indebtedness of the corporation, and
other corporate instruments or documents requiring the corporate seal, and
certificates of shares of stock owned by the corporation, shall be executed,
signed or endorsed by the Chairman of the Board of Directors, or the President
or any Vice President, and by the Secretary or Treasurer or any Assistant
Secretary or Assistant Treasurer. All other instruments and documents requiring
the corporate signature, but not requiring the corporate seal, may be executed
as aforesaid or in such other manner as may be directed by the Board of
Directors.
(c) CHECKS; DRAFTS. All checks and drafts drawn on banks or other
depositaries on funds to the credit of the corporation or in special accounts of
the corporation shall be signed by such person or persons as the Board of
Directors shall authorize so to do.
(d) AUTHORITY TO BIND CORPORATION. Unless authorized or ratified by the
Board of Directors or within the agency power of an officer, no officer, agent
or employee shall have any power or authority to bind the corporation by any
contract or engagement or to pledge its credit or to render it liable for any
purpose or for any amount.
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Section 2. VOTING OF SECURITIES OWNED BY THE CORPORATION. All stock
and other securities of other corporations owned or held by the corporation for
itself, or for other parties in any capacity, shall be voted, and all proxies
with respect thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors, or, in the absence of such authorization,
by the Chairman of the Board of Directors, the Chief Executive Officer, the
President, or any Vice President.
ARTICLE VII
SHARES OF STOCK
Section 1. FORM AND EXECUTION OF CERTIFICATES. Certificates for the
shares of stock of the corporation shall be in such form as is consistent with
the Certificate of Incorporation and applicable law. Every holder of stock in
the corporation shall be entitled to have a certificate signed by or in the name
of the corporation by the Chairman of the Board of Directors, or the President
or any Vice President and by the Treasurer or Assistant Treasurer or the
Secretary or Assistant Secretary, certifying the number of shares owned by him
in the corporation. Any or all of the signatures on the certificate may be
facsimiles. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue. Each certificate shall state
upon the face or back thereof, in full or in summary, all of the powers,
designations, preferences, and rights, and the limitations or restrictions of
the shares authorized to be issued or shall, except as otherwise required by
law, set forth on the face or back a statement that the corporation will furnish
without charge to each stockholder who so requests the powers, designations,
preferences and relative, participating, optional, or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights. Within a reasonable time after
the issuance or transfer of uncertificated stock, the corporation shall send to
the registered owner thereof a written notice containing the information
required to be set forth or stated on certificates pursuant to this section or
otherwise required by law or with respect to this section a statement that the
corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. Except as
otherwise expressly provided by law, the rights and obligations of the holders
of certificates representing stock of the same class and series shall be
identical.
Section 2. LOST CERTIFICATES. A new certificate or certificates shall
be issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. The corporation may require, as a condition
precedent to the issuance of a new certificate or certificates, the owner of
such lost, stolen, or destroyed certificate or certificates, or his legal
representative, to advertise the same in such
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manner as it shall require or to give the corporation a surety bond in such form
and amount as it may direct as indemnity against any claim that may be made
against the corporation with respect to the certificate alleged to have been
lost, stolen, or destroyed.
Section 3. TRANSFERS.
(a) TRANSFERS ON BOOKS. Transfers of record of shares of stock of the
corporation shall be made only upon its books by the holders thereof, in person
or by attorney duly authorized, and upon the surrender of a properly endorsed
certificate or certificates for a like number of shares.
(b) TRANSFER RESTRICTIONS. The corporation shall have power to enter into
and perform any agreement with any number of stockholders of any one or more
classes of stock of the corporation to restrict the transfer of shares of stock
of the corporation of any one or more classes owned by such stockholders in any
manner not prohibited by the DGCL.
Section 4. FIXING RECORD DATES.
(a) STOCKHOLDER MEETINGS. 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, the Board of Directors may fix, in advance, a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which record
date shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting. If no record date is fixed by the Board of Directors, the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or if notice is waived, at the close
of business on the day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
(b) DIVIDENDS; DISTRIBUTIONS. In order that the corporation may determine
the stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders 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 record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date shall be not
more than sixty (60) days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto.
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Section 5. REGISTERED STOCKHOLDERS. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and shall not
be bound to recognize any equitable or other claim to or interest in such share
or shares on the part of any other person whether or not it shall have express
or other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION
Section 1. EXECUTION OF OTHER SECURITIES. All bonds, debentures and
other corporate securities of the corporation, other than stock certificates,
may be signed by the Chairman of the Board of Directors, the President or any
Vice President, or such other person as may be authorized by the Board of
Directors, and the corporate seal impressed thereon or a facsimile of such seal
imprinted thereon and attested by the signature of the Secretary or an Assistant
Secretary, or the Chief Financial Officer or Treasurer or an Assistant
Treasurer; provided, however, that where any such bond, debenture or other
corporate security shall be authenticated by the manual signature, or where
permissible facsimile signature, of a trustee under an indenture pursuant to
which such bond, debenture or other corporate security shall be issued, the
signatures of the persons signing and attesting the corporate seal on such bond,
debenture or other corporate security may be the imprinted facsimile of the
signatures of such persons. Interest coupons appertaining to any such bond,
debenture or other corporate security, authenticated by a trustee as aforesaid,
shall be signed by the Treasurer or an Assistant Treasurer of the corporation or
such other person as may be authorized by the Board of Directors, or bear
imprinted thereon the facsimile signature of such person. In case any officer
who shall have signed or attested any bond, debenture or other corporate
security, or whose facsimile signature shall appear thereon or on any such
interest coupon, shall have ceased to be such officer before the bond, debenture
or other corporate security so signed or attested shall have been delivered,
such bond, debenture or other corporate security nevertheless may be adopted by
the corporation and issued and delivered as though the person who signed the
same or whose facsimile signature shall have been used thereon had not ceased to
be such officer of the corporation.
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ARTICLE IX
DIVIDENDS
Section 1. DECLARATION OF DIVIDENDS. Dividends upon the capital stock
of the corporation, subject to the provisions of the Certificate of
Incorporation, if any, may be declared by the Board of Directors pursuant to law
at any regular or special meeting. Dividends may be paid in cash, in property,
or in shares of the capital stock, subject to the provisions of the Certificate
of Incorporation.
Section 2. DIVIDEND RESERVE. Before payment of any dividend, there may
be set aside out of any funds of the corporation available for dividends such
sum or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the Board of Directors shall think
conducive to the interests of the corporation, and the Board of Directors may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE X
FISCAL YEAR
Section 1. FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
ARTICLE XI
INDEMNIFICATION
Section 1. INDEMNIFICATION OF DIRECTORS, EXECUTIVE OFFICERS, OTHER
OFFICERS, EMPLOYEES AND OTHER AGENTS.
(a) DIRECTORS AND OFFICERS. The corporation shall indemnify its
directors and officers to the fullest extent not prohibited by the DGCL
PROVIDED, HOWEVER, that the corporation may modify the extent of such
indemnification by individual contracts with its directors and officers; and
PROVIDED, FURTHER, that the corporation shall not be required to indemnify any
director or officer in connection with any proceeding (or part thereof)
initiated by such person unless (i) such indemnification is expressly required
to be made by law, (ii) the proceeding was authorized by the Board of Directors
of the corporation, (iii) such indemnification is provided by the corporation,
in its sole discretion, pursuant to the powers vested in the corporation under
the DGCL or (iv) such indemnification is required to be made under paragraph
(d), below.
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(b) EXPENSES. The corporation shall advance to any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person 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, prior to the final disposition of the
proceeding, promptly following request therefor, all expenses incurred by any
director or officer in connection with such proceeding upon receipt of an
undertaking by or on behalf of such person to repay said amounts if it should be
determined ultimately that such person is not entitled to be indemnified under
this Bylaw or otherwise.
(c) ADVANCES TO CORPORATE OFFICERS. Notwithstanding the foregoing,
unless otherwise determined pursuant to paragraph (d) of this Bylaw, no advance
shall be made by the corporation to an officer of the corporation (except by
reason of the fact that such officer is or was a director of the corporation in
which event this paragraph shall not apply) in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, if a determination is
reasonably and promptly made that the facts known to the decision-making party
(as described below) at the time such determination is made demonstrate clearly
and convincingly that such person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
corporation. Such a determination may be made either (i) by the Board of
Directors, by a majority vote of a quorum consisting of directors who were not
parties to the proceeding, or (ii) if either (A) such a quorum is not obtainable
or (B) whether or not such a quorum is obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion.
(d) ENFORCEMENT. Without the necessity of entering into an express
contract, all rights to indemnification and advances to directors and officers
under this Article XI shall be deemed to be contractual rights and be effective
to the same extent and as if provided for in a contract between the corporation
and the director or officer. Any right to indemnification or advances granted
by this Article XI to a director or officer shall be enforceable by or on behalf
of the person holding such right in any court of competent jurisdiction if (i)
the claim for indemnification or advances is denied, in whole or in part, or
(ii) no disposition of such claim is made within ninety (90) days of request
therefor. The claimant in such enforcement action, if successful in whole or in
part, shall be entitled to be paid also the expense of prosecuting such claim.
In connection with any claim for indemnification, the corporation shall be
entitled to raise as a defense to any such action that the claimant has not met
the standards of conduct that make it permissible under the DGCL for the
corporation to indemnify the claimant for the amount claimed. In connection
with any claim by an officer of the corporation (except in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such officer is or was a director of the corporation) for
advances, the corporation shall be entitled to raise a conclusive defense as to
any such action clear and convincing evidence that such person acted in bad
faith or in a manner that such person did not believe to be in or not opposed to
the best interests of the corporation, or with respect to any criminal action or
proceeding that such person acted without reasonable cause to believe that his
conduct was lawful. Neither the
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failure of the corporation (including its Board of Directors, independent legal
counsel or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he has met the applicable standard of conduct set
forth in the DGCL, nor an actual determination by the corporation (including its
Board of Directors, independent legal counsel or its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that claimant has not met the applicable
standard of conduct. In any suit brought by a director or officer to enforce a
right to indemnification or to an advancement of expenses hereunder, the burden
of proving that the director or officer is not entitled to be indemnified, or to
such advancement of expenses, under this Article XI or otherwise shall be on the
corporation.
(e) NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by
this Article XI shall not be exclusive of any other right which such person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, Bylaws, agreement, vote of stockholders or disinterested
directors, or otherwise, both as to action in his or her official capacity and
as to action in another capacity while holding office. The corporation is
specifically authorized to enter into individual contracts with any or all of
its directors, officers, employees or agents respecting indemnification and
advances, to the fullest extent not prohibited by the DGCL.
(f) SURVIVAL OF RIGHTS. The rights conferred on any person by this
Article XI shall continue as to a person who has ceased to be a director,
officer, employee or other agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(g) INSURANCE. To the fullest extent permitted by the DGCL, the
corporation, upon approval by the Board of Directors, may purchase insurance on
behalf of any person required or permitted to be indemnified pursuant to this
Article XI.
(h) AMENDMENTS. Any repeal or modification of this Article XI shall
only be prospective and shall not affect the rights under this Bylaw in effect
at the time of the alleged occurrence of any action or omission to act that is
the cause of any proceeding against any agent of the corporation.
(i) SAVING CLAUSE. If this Article XI or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director and officer to the full
extent not prohibited by any applicable portion of this Article XI that shall
not have been invalidated, or by any other applicable law.
(j) CERTAIN DEFINITIONS. For the purposes of this Article XI, the
following definitions shall apply:
(i) The term "proceeding" shall be broadly construed and shall include,
without limitation, the investigation, preparation, prosecution,
defense, settlement,
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arbitration and appeal of, and the giving of testimony in, any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative.
(ii) The term "expenses" shall be broadly construed and shall include,
without limitation, court costs, attorneys' fees, witness fees,
fines, amounts paid in settlement or judgment and any other costs
and expenses of any nature or kind incurred in connection with any
proceeding.
(iii) The term 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, officers, and
employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article XI with
respect to the resulting or surviving corporation as such
individual would have with respect to such constituent corporation
if its separate existence had continued.
(iv) References to a "director," "officer," "employee," or "agent" of
the corporation shall include, without limitation, situations where
such person is serving at the request of the corporation as,
respectively, a director, officer, employee, trustee or agent of
another corporation, partnership, joint venture, trust or other
enterprise.
(v) References to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of
the corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an
employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
corporation" as referred to in this Article.
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ARTICLE XII
NOTICES
Section 1. NOTICES.
(a) NOTICE TO STOCKHOLDERS. Whenever, under any provisions of these
Bylaws, notice is required to be given to any stockholder, it shall be given in
writing, timely and duly deposited in the United States mail, postage prepaid,
and addressed to such stockholder's address last known post office address as
shown by the stock record of the corporation or its transfer agent or by such
other method as to which the stockholder consents.
(b) NOTICE TO DIRECTORS. Any notice required to be given to any
director may be given by the method stated in paragraph (a), above, or by
facsimile, telex or telegram, except that such notice other than one which is
delivered personally shall be sent to such address as such director shall have
filed in writing with the Secretary, or, in the absence of such filing, to the
last known post office address of such director.
(c) AFFIDAVIT OF MAILING. An affidavit of mailing, executed by a duly
authorized and competent employee of the corporation or its transfer agent
appointed with respect to the class of stock affected, specifying the name and
address or the names and addresses of the stockholder or stockholders, or
director or directors, to whom any such notice or notices was or were given, and
the time and method of giving the same, shall in the absence of fraud, be prima
facie evidence of the facts therein contained.
(d) TIME NOTICES DEEMED GIVEN. All notices given by mail, as above
provided, shall be deemed to have been given as at the time of mailing, and all
notices given by facsimile, telex or telegram shall be deemed to have been given
as of the sending time recorded at time of transmission.
(e) METHODS OF NOTICE. It shall not be necessary that the same method
of giving notice be employed in respect of all directors, but one permissible
method may be employed in respect of any one or more, and any other permissible
method or methods may be employed in respect of any other or others.
(f) FAILURE TO RECEIVE NOTICE. The period or limitation of time within
which any stockholder may exercise any option or right, or enjoy any privilege
or benefit, or be required to act, or within which any director may exercise any
power or right, or enjoy any privilege, pursuant to any notice sent him in the
manner above provided, shall not be affected or extended in any manner by the
failure of such stockholder or such director to receive such notice.
(g) NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL. Whenever
notice is required to be given, under any provision of law or of the Certificate
of Incorporation or Bylaws of the corporation, to any person with whom
communication is unlawful, the giving of such
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notice to such person shall not be required and there shall be no duty to apply
to any governmental authority or agency for a license or permit to give such
notice to such person. Any action or meeting which shall be taken or held
without notice to any such person with whom communication is unlawful shall have
the same force and effect as if such notice had been duly given. In the event
that the action taken by the corporation is such as to require the filing of a
certificate under any provision of the DGCL, the certificate shall state, if
such is the fact and if notice is required, that notice was given to all persons
entitled to receive notice except such persons with whom communication is
unlawful.
(h) NOTICE TO PERSON WITH UNDELIVERABLE ADDRESS. Whenever notice is
required to be given, under any provision of law or the Certificate of
Incorporation or Bylaws of the corporation, to any stockholder to whom (i)
notice of two consecutive annual meetings, and all notices of meetings or of the
taking of action by written consent without a meeting to such person during the
period between such two consecutive annual meetings, or (ii) all, and at least
two, payments (if sent by first class mail) of dividends or interest on
securities during a twelve-month period, have been mailed addressed to such
person at his address as shown on the records of the corporation and have been
returned undeliverable, the giving of such notice to such person shall not be
required. Any action or meeting which shall be taken or held without notice to
such person shall have the same force and effect as if such notice had been duly
given. If any such person shall deliver to the corporation a written notice
setting forth such person's then current address, the requirement that notice be
given to such person shall be reinstated. In the event that the action taken by
the corporation is such as to require the filing of a certificate under any
provision of the DGCL, the certificate need not state that notice was not given
to persons to whom notice was not required to be given pursuant to this
paragraph.
ARTICLE XIII
AMENDMENTS
Section 1. AMENDMENTS. Subject Article IV Section 1 and to paragraph (g)
of Article XI Section 1 of these Bylaws, these Bylaws may be altered or amended
or new Bylaws adopted by the affirmative vote of at least sixty-six and two-
thirds percent (66-2/3%) of the voting power of all of the then-outstanding
shares of the Voting Stock. The Board of Directors shall also have the power to
adopt, amend, or repeal Bylaws.
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ARTICLE XIV
LOANS TO OFFICERS
Section 1. LOANS TO OFFICERS. The corporation may lend money to, or
guarantee any obligation of, or otherwise assist any officer or other employee
of the corporation or of its subsidiaries, including any officer or employee who
is a Director of the corporation or its subsidiaries, whenever, in the judgment
of the Board of Directors, such loan, guarantee or assistance may reasonably be
expected to benefit the corporation. The loan, guarantee or other assistance
may be with or without interest and may be unsecured, or secured in such manner
as the Board of Directors shall approve, including, without limitation, a pledge
of shares of stock of the corporation. Nothing in these Bylaws shall be deemed
to deny, limit or restrict the powers of guaranty or warranty of the corporation
at common law or under any statute.
ARTICLE XV
STOCKHOLDER'S INSPECTION RIGHTS
Section 1. The right of stockholders of the corporation to inspect
the corporate records pursuant Section 220 of the DGCL are expressly limited to
purposes reasonably related to the stockholders' interests as stockholders of
the corporation. Except for as expressly authorized in Section 220 of the DGCL,
the inspection rights shall not include the right to disclose corporate records
to any person who is not an officer, director, or stockholder of record of the
corporation without the prior written consent of the Board or an authorized
corporate officer.
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