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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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): October 17, 1997
Geoworks Corporation
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware
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(STATE OR OTHER JURISDICTION OF INCORPORATION)
0-23926 94-2920371
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(COMMISSION (IRS EMPLOYER
FILE NUMBER) IDENTIFICATION NO.)
960 Atlantic Avenue, Alameda, California 94501
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(510) 814-1660
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(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
Geoworks
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 5. OTHER EVENTS
On October 17, 1997, the Secretary of State of the State of
California approved an Agreement of Merger dated October 7, 1997 between the
Registrant and Geoworks, a California corporation which was the Registrant's
predecessor corporation ("Geoworks California"), pursuant to which the state of
incorporation of the Registrant was changed from California to Delaware,
effective retroactively to October 8, 1997. Such change in the Registrant's
state of incorporation (the "Reincorporation") was effected through the merger
of Geoworks California with and into the Registrant, which, prior to such
merger, was a wholly owned subsidiary of Geoworks California. The Registrant was
the surviving corporation of this merger and, upon its effectiveness, succeeded
to and came to possess all the assets, properties, rights, privileges, powers,
franchises, immunities and purposes, and became subject to all the debts,
liabilities, obligations, restrictions and duties of Geoworks California. The
Reincorporation was approved by the Registrant's Board of Directors on May 27,
1997 and by the holders of a majority of the Registrant's outstanding shares of
Common Stock at the Registrant's Annual Meeting of Shareholders held on August
19, 1997.
The Reincorporation caused the Registrant's corporate name to be
changed from "Geoworks" to "Geoworks Corporation". It did not, and will not in
the future, result in (i) any change in the Registrant's business, assets or
liabilities; (ii) the moving of the Registrant's principal executive offices; or
(iii) any relocation of the Registrant's management or other employees. Upon the
effectiveness of the Reincorporation, each share of Geoworks California Common
Stock which was outstanding immediately prior thereto was automatically changed
and converted into one share of the Registrant's Common Stock. Any certificate
representing shares of Geoworks California Common Stock so converted will be
deemed to represent an equivalent number of shares of the Registrant's Common
Stock from and after the effective date of the Reincorporation without need for
further action on the part of the holder thereof.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS
(c) Exhibits
<TABLE>
<CAPTION>
Exhibit Number Exhibit
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<S> <C>
2.01 Agreement of Merger dated October 7, 1997 between
Registrant and the Registrant's predecessor
corporation, Geoworks, a California corporation.
4.01 Certificate of Incorporation of Registrant, as filed
with the Delaware Secretary of State on September 9,
1997 and currently in effect.
4.02 Bylaws of Registrant, as adopted on September 10,
1997 and currently in effect.
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
Geoworks Corporation
Date: October 24, 1997 By: /s/ David A. Thatcher
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David A. Thatcher
Vice President and
Chief Financial Officer
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Exhibit
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<S> <C>
2.01 Agreement of Merger dated October 7, 1997 between
Registrant and the Registrant's predecessor
corporation, Geoworks, a California corporation.
4.01 Certificate of Incorporation of Registrant, as filed
with the Delaware Secretary of State on September 9,
1997 and currently in effect.
4.02 Bylaws of Registrant, as adopted on September 10,
1997 and currently in effect.
</TABLE>
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Exhibit 2.01
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Merger Agreement") is made as of
October 7, 1997 by and between Geoworks, a California corporation ("Geoworks
California"), and Geoworks Corporation, a Delaware corporation ("Geoworks
Delaware"). Geoworks California and Geoworks Delaware are hereinafter sometimes
collectively referred to as the "Constituent Corporations."
RECITALS
A. Geoworks California was incorporated on September 27, 1993. Its current
authorized capital stock consists of: (1) 40,000,000 shares of Common Stock, no
par value ("Geoworks California Common Stock"), of which 15,525,483 shares were
issued and outstanding as of June 27, 1997, the record date for the meeting of
the shareholders of Geoworks California at which the transaction contemplated
hereby was voted upon; and (2) 2,000,000 shares of Preferred Stock, no par value
("Geoworks California Preferred Stock"), of which no shares are issued and
outstanding.
B. Geoworks Delaware was incorporated on September 9, 1997. Its authorized
capital stock consists of: (1) 40,000,000 shares of Common Stock, with a par
value of $0.001 per share ("Geoworks Delaware Common Stock"), of which 1,000
shares are issued and outstanding; and (2) 2,000,000 shares of Preferred Stock,
$0.001 par value ("Geoworks Delaware Preferred Stock"), none of which shares are
issued and outstanding.
C. The respective Boards of Directors of Geoworks California and Geoworks
Delaware deem it advisable and to the advantage of each of the Constituent
Corporations that Geoworks California merge with and into Geoworks Delaware upon
the terms and subject to the conditions set forth in this Merger Agreement for
the purpose of effecting a change of the state of incorporation of Geoworks
California from California to Delaware.
D. The Boards of Directors of each of the Constituent Corporations have
approved this Merger Agreement.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization set
forth in this Merger Agreement and do hereby agree that Geoworks California
shall merge with and into Geoworks Delaware on the following terms, conditions
and other provisions:
1. Merger and Effective Time. At the Effective Time (as defined below),
Geoworks California shall be merged with and into Geoworks Delaware (the
"Merger"), and Geoworks Delaware shall be the surviving corporation of the
Merger (the "Surviving Corporation"). The Merger shall become effective upon the
close of business on the date when a duly executed copy of this Merger
Agreement, along with all required officers' certificates, is filed with the
Secretary of State of the State of California, or upon the close of business on
the date when a duly executed copy of this Merger Agreement, along with all
required officers' certificates, is filed with the Secretary of State of the
State of Delaware, whichever later occurs (the "Effective Time").
2. Effect of Merger. At the Effective Time, the separate corporate
existence of Geoworks California shall cease; the corporate identity, existence,
powers, rights and immunities of Geoworks Delaware as the Surviving Corporation
shall continue unimpaired by the Merger; and Geoworks Delaware shall succeed to
and shall possess all the assets, properties, rights, privileges, powers,
franchises, immunities and purposes, and be subject to all the debts,
liabilities, obligations, restrictions and duties of Geoworks California, all
without further act or deed.
3. Governing Documents. At the Effective Time, the Certificate of
Incorporation of Geoworks Delaware in effect immediately prior to the Effective
Time shall become the Certificate of Incorporation of the Surviving Corporation
and the Bylaws of Geoworks Delaware in effect immediately prior to the Effective
Time shall become the Bylaws of the Surviving Corporation.
4. Directors and Officers. At the Effective Time, the directors and
officers of Geoworks Delaware shall be and become the directors and officers
(holding the same titles and positions) of the Surviving Corporation,
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and after the Effective Time shall serve in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation.
5. Conversion of Shares of Geoworks California. Subject to the terms and
conditions of this Agreement, at the Effective Time, each share of Geoworks
California Common Stock outstanding immediately prior thereto shall be
automatically changed and converted into an equivalent number of fully paid and
nonassessable, issued and outstanding shares of Geoworks Delaware Common Stock.
6. Cancellation of Shares of Geoworks Delaware. At the Effective Time, all
of the previously issued and outstanding shares of Geoworks Delaware Common
Stock that were issued and outstanding immediately prior to the Effective Time
shall be automatically retired and cancelled.
7. Stock Certificates. At and after the Effective Time, all of the
outstanding certificates that, prior to that date, represented shares of
Geoworks California Common Stock shall be deemed for all purposes to evidence
ownership of and to represent the number of shares of Geoworks Delaware Common
Stock into which such shares of Geoworks California Common Stock are converted
as provided herein. The registered owner on the books and records of Geoworks
California of any such outstanding stock certificate for Geoworks California
Common Stock shall, until such certificate shall have been surrendered for
transfer or otherwise accounted for to Geoworks Delaware or its transfer agent,
be entitled to exercise any voting and other rights with respect to, and to
receive any dividend and other distributions upon, the shares of Geoworks
Delaware Common Stock evidenced by such outstanding certificate as above
provided.
8. Conversion of Options. At the Effective Time, all outstanding and
unexercised portions of all options to purchase Geoworks California Common Stock
under the Geoworks California 1987 Stock Option Plan, 1994 Stock Plan,
Supplemental Stock Option Plan and 1997 Supplemental Stock Plan (collectively,
the "Geoworks California Option Plans"), shall become options to purchase an
equivalent number of shares of Geoworks Delaware Common Stock at the same
exercise price per share and otherwise shall, to the extent permitted by law and
otherwise reasonably practicable, have the same term, exercisability, vesting
schedule, status as an "incentive stock option" under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), if applicable, and all
other material terms and conditions (including but not limited to the terms and
conditions applicable to such options by virtue of the Geoworks California Stock
Option Plans). Continuous employment with Geoworks California will be credited
to an optionee for purposes of determining the vesting of the number of shares
of Geoworks Delaware Common Stock subject to exercise under a converted Geoworks
California option at the Effective Time. Additionally, at the Effective Time,
Geoworks Delaware shall adopt and assume the Geoworks California Option Plans.
9. Employee Benefit Plans. At the Effective Time, the obligations of
Geoworks California under or with respect to every plan, trust, program and
benefit then in effect or administered by Geoworks California for the benefit of
the directors, officers and employees of Geoworks California or any of its
subsidiaries shall become the lawful obligations of Geoworks Delaware and shall
be implemented and administered in the same manner and without interruption
until the same are amended or otherwise lawfully altered or terminated.
Effective at the Effective Time, Geoworks Delaware hereby expressly adopts and
assumes all obligations of Geoworks California under such employee benefit
plans.
10. Further Assurances. From time to time, as and when required by the
Surviving Corporation or by its successors or assigns, there shall be executed
and delivered on behalf of Geoworks California such deeds, assignments and other
instruments, and there shall be taken or caused to be taken by it all such
further action, as shall be appropriate, advisable or necessary in order to
vest, perfect or confirm, of record or otherwise, in the Surviving Corporation
the title to and possession of all property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of Geoworks California,
and otherwise to carry out the purposes of this Merger Agreement. The officers
and directors of the Surviving Corporation are fully authorized in the name of
and on behalf of Geoworks California, or otherwise, to take any and all such
actions and to execute and deliver any and all such deeds and other instruments
as may be necessary or appropriate to accomplish the foregoing.
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11. Condition. The consummation of the Merger is subject to the approval of
this Merger Agreement and the Merger contemplated hereby by the shareholders of
Geoworks California and by the sole stockholder of Geoworks Delaware, prior to
or at the Effective Time.
12. Abandonment. At any time before the Effective Time, this Merger
Agreement may be terminated and the Merger abandoned by the Board of Directors
of Geoworks California or Geoworks Delaware, notwithstanding approval of this
Merger Agreement by the Boards of Directors and shareholders of Geoworks
California and Geoworks Delaware.
13. Amendment. At any time before the Effective Time, this Merger Agreement
may be amended, modified or supplemented by the Boards of Directors of the
Constituent Corporations, notwithstanding approval of this Merger Agreement by
the shareholders of Geoworks California and Geoworks Delaware; provided,
however, that any amendment made subsequent to the adoption of this Agreement by
the shareholders of Geoworks California or the sole stockholder of Geoworks
Delaware shall not: (i) alter or change the amount or kind of shares,
securities, cash, property and/or rights to be received in exchange for or upon
conversion of any shares of any class or series of Geoworks California; (ii)
alter or change any of the terms of the Certificate of Incorporation of the
Surviving Corporation to be effected by the Merger; or (iii) alter or change any
of the terms or conditions of this Agreement if such alteration or change would
adversely affect the holders of any shares of any class or series of Geoworks
California or Geoworks Delaware.
14. Tax-Free Reorganization. The Merger is intended to be a tax-free plan
of reorganization within the meaning of Section 368(a)(1)(F) of the Internal
Revenue Code of 1986, as amended.
15. Governing Law. This Agreement shall be governed by and construed under
the internal laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California, without reference to the principles of conflicts of law or choice of
laws, except to the extent that the laws of the State of Delaware would apply in
matters relating to the internal affairs of Geoworks Delaware and the Merger.
16. Counterparts. In order to facilitate the filing and recording of this
Merger Agreement, it may be executed in any number of counterparts, each of
which shall be deemed to be an original.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, this Merger Agreement is hereby executed on behalf of
each of the Constituent Corporations and attested by their respective officers
thereunto duly authorized.
<TABLE>
<S> <C> <C>
GEOWORKS, GEOWORKS CORPORATION,
a California corporation a Delaware corporation
By: /s/ Gordon E. Mayer By: /s/ Gordon E. Mayer
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Gordon E. Mayer, President Gordon E. Mayer, President
ATTEST: ATTEST:
By: /s/ Teresa Gutierrez By: /s/ Teresa Gutierrez
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Teresa Gutierrez, Assistant Secretary Teresa Gutierrez, Assistant Secretary
</TABLE>
[SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER]
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Exhibit 4.01
CERTIFICATE OF INCORPORATION
OF
GEOWORKS CORPORATION
ARTICLE I
The name of the corporation is Geoworks Corporation.
ARTICLE II
The address of the registered office of the corporation in the State of
Delaware is 1013 Centre Road, Wilmington, Delaware, 19805. The name of its
registered agent at that address is Corporation Service Company.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE IV
The total number of shares of all classes of stock which the corporation
has authority to issue is Forty Two Million (42,000,000) shares, consisting of
two classes: Forty Million (40,000,000) shares of Common Stock, $0.001 par value
per share, and Two Million (2,000,000) shares of Preferred Stock, $0.001 par
value per share.
The Board of Directors is authorized, subject to any limitations prescribed
by the law of the State of Delaware, to provide for the issuance of the shares
of Preferred Stock in one or more series, and, by filing a Certificate of
Designation pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in each such
series, to fix the designation, powers, preferences and rights of the shares of
each such series and any qualifications, limitations or restrictions thereof,
and to increase or decrease the number of shares of any such series (but not
below the number of shares of such series then outstanding).
The number of authorized shares of Common Stock or Preferred Stock may also
be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the stock
of the corporation entitled to vote, unless a vote of any other holders is
required pursuant to a Certificate or Certificates establishing a series of
Preferred Stock.
Except as otherwise expressly provided in any Certificate of Designation
designating any series of Preferred Stock pursuant to the foregoing provisions
of this Article IV, any new series of Preferred Stock may be designated, fixed
and determined as provided herein by the Board of Directors without approval of
the holders of Common Stock or the holders of Preferred Stock, or any series
thereof, and any such new series may have powers, preferences and rights,
including, without limitation, voting rights, dividend rights, liquidation
rights, redemption rights and conversion rights, senior to, junior to or pari
passu with the rights of the Common Stock, the Preferred Stock, or any future
class or series of Preferred Stock or Common Stock.
ARTICLE V
The business and affairs of the corporation shall be managed by or under
the direction of the Board of Directors. The number of directors shall be fixed
from time to time exclusively by a resolution of the Board of Directors adopted
by the affirmative vote of a majority of the total number of directors that the
corporation would have if there were no vacancies.
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Any vacancy on the Board of Directors, however resulting, and any newly
created directorships resulting from any increase in the authorized number of
directors shall be filled only by the affirmative vote of a majority of the
directors then in office, even if less than a quorum, or by a sole remaining
director, unless the Board of Directors determines that any such vacancies or
newly created directorships shall be filled by the stockholders.
The Board of Directors of the corporation shall have the power to adopt,
amend or repeal Bylaws of the corporation.
ARTICLE VI
Any action required or permitted to be taken by the stockholders of the
corporation may be effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing by such holders.
Subject to the rights of the holders of any class or series of Preferred Stock,
special meetings of stockholders of the corporation shall be called only by the
Board of Directors or upon the request of the Chairman of the Board of Directors
or the Chief Executive Officer of the corporation. If a special meeting is
requested by the Chairman of the Board of Directors or the Chief Executive
Officer, the Board of Directors shall determine the time and the place of such
meeting, which shall be called for no less than 35 days nor more than 120 days
after the receipt by the Secretary of the corporation of the request for such
meeting.
Election of directors need not be by written ballot unless the Bylaws of
the corporation shall so provide.
ARTICLE VII
To the fullest extent permitted by law, no director of the corporation
shall be personally liable for monetary damages for breach of fiduciary duty as
a director. Without limiting the effect of the preceding sentence, if the
Delaware General Corporation Law is hereafter amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
a director of the corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
Neither any amendment nor repeal of this Article VII, nor the adoption of
any provision of this Certificate of Incorporation inconsistent with this
Article VII, shall eliminate, reduce or otherwise adversely affect any
limitation on the personal liability of a director of the corporation existing
at the time of such amendment, repeal or adoption of such an inconsistent
provision.
ARTICLE VIII
The name and mailing address of the incorporator is Robert A. Freedman, c/o
Fenwick & West LLP, Two Palo Alto Square, Suite 800, Palo Alto, California
94306.
The undersigned incorporator hereby acknowledges that the foregoing
certificate is his act and deed and that the facts stated herein are true.
Date: September 9, 1997 /s/ Robert A. Freedman
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Robert A. Freedman, Incorporator
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Exhibit 4.02
GEOWORKS CORPORATION
BY-LAWS
ARTICLE I -- STOCKHOLDERS
SECTION 1. Annual Meeting.
(1) An annual meeting of the stockholders, for the election of directors to
succeed those whose terms expire and for the transaction of such other business
as may properly come before the meeting, shall be held at such place, on such
date, and at such time as the Board of Directors shall each year fix, which date
shall be within thirteen (13) months of the last annual meeting of stockholders.
(2) Nominations of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders (a) pursuant to the
Corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the Corporation who was a stockholder of
record at the time of giving of the notice provided for in this By-law, who is
entitled to vote at the meeting and who complied with the notice procedures set
forth in this By-law.
(3) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph (2) of this
By-law, the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation, such business must be a proper matter for
stockholder action under the General Corporation Law of the State of Delaware
and, if the stockholder, or the beneficial owner on whose behalf any such
proposal or nomination is made, solicits or participates in the solicitation of
proxies in support of such proposal or nominees, the stockholder must have
timely indicated its, or such beneficial owner's, intention to do so as provided
in subclause (c)(iii) of this paragraph (3). To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive offices of
the Corporation not less than 60 days prior to the first anniversary of the
preceding year's annual meeting of stockholders; provided, however, that if the
date of the annual meeting is advanced more than 30 days prior to or delayed by
more than 60 days after such anniversary date, notice by the stockholder to be
timely must be so delivered not later than the close of business on the later of
the 60th day prior to such annual meeting or the 10th day following the day on
which public announcement of the date of such meeting is first made. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person as would be required to be disclosed in solicitations of
proxies for the election of such nominees as directors pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and such person's written consent to serving as a director if elected; (b) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of such business, the reasons for conducting such business at
the meeting and any material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal is made; (c) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, (ii) the class and number of shares of the Corporation that are owned
beneficially and of record by such stockholder and such beneficial owner, and
(iii) whether either such stockholder or beneficial owner intends to solicit or
participate in the solicitation of proxies in favor of such proposal or nominee
or nominees.
(4) Notwithstanding anything in the second sentence of paragraph (3) of
this By-law to the contrary, in the event that the number of directors to be
elected to the Board is increased and there is no public announcement naming all
of the nominees for director or specifying the size of the increased Board made
by the Corporation at least 70 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this By-law
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary at
the principal
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executive offices of the Corporation not later than the close of business on the
10th day following the day on which such public announcement is first made by
the Corporation.
(5) Only persons nominated in accordance with the procedures set forth in
these By-laws shall be eligible to serve as directors and only such business
shall be conducted at an annual meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
section. The chair of the meeting shall have the power and the duty to determine
whether a nomination or any business proposed to be brought before the meeting
has been made in accordance with the procedures set forth in these By-laws and,
if any proposed nomination or business is not in compliance with these By-laws
to declare that such defective proposed business or nomination shall not be
presented for stockholder action at the meeting and shall be disregarded.
(6) Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election to the
Board may be made at a special meeting of stockholders at which directors are to
be elected pursuant to the Corporation's notice of meeting (a) by or at the
direction of the Board or (b) by any stockholder of record of the Corporation
who is a stockholder of record at the time of giving of notice provided for in
this paragraph, who shall be entitled to vote at the meeting and who complies
with the notice procedures set forth in this By-law. Nominations by stockholders
of persons for election to the Board may be made at such a special meeting of
stockholders if the stockholder's notice required by paragraph (3) of this
By-law shall be delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the later of the 60th
day prior to such special meeting or the 10th day following the day on which
public announcement is first made of the date of the special meeting and of the
nominees proposed by the Board to be elected at such meeting.
(7) For purposes of this section, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or a comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
(8) Notwithstanding the foregoing provisions of this By-law, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to matters set forth in this
By-law. Nothing in this By-law shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
SECTION 2. Special Meetings; Notice.
Subject to the rights of the holders of any class or series of preferred
stock of the Corporation, special meetings of stockholders of the Corporation
shall be called only by the Board of Directors or upon the request of the
Chairman of the Board of Directors or the Chief Executive Officer of the
Corporation. If a special meeting is requested by the Chairman of the Board of
Directors or the Chief Executive Officer, the Board of Directors shall determine
the time and place of such meeting, which shall be called for no less than 35
days nor more than 120 days after the receipt by the Secretary of the
Corporation of the request for such meeting. Notice of every special meeting,
stating the time, place and purpose, shall be given by mailing, postage prepaid,
at least ten but not more than sixty days before each such meeting, a copy of
such notice addressed to each stockholder of the Corporation at his or her post
office address as recorded on the books of the Corporation. The Board of
Directors may postpone or reschedule any previously scheduled special meeting.
Only such business shall be conducted at a special meeting of stockholders
as shall have been brought before the meeting pursuant to the Corporation's
notice of meeting.
SECTION 3. Notice of Meetings.
Written notice of the place, date, and time of all meetings of the
stockholders shall be given, not less than ten (10) nor more than sixty (60)
days before the date on which the meeting is to be held, to each stockholder
entitled to vote at such meeting, except as otherwise provided herein or
required by law (meaning, here and
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hereinafter, as required from time to time by the Delaware General Corporation
Law or the Certificate of Incorporation of the Corporation).
When a meeting is adjourned to another place, date or time, written notice
need not be given of the adjourned meeting if the place, date and time thereof
are announced at the meeting at which the adjournment is taken; provided,
however, that if the date of any adjourned meeting is more than thirty (30) days
after the date for which the meeting was originally noticed, or if a new record
date is fixed for the adjourned meeting, written notice of the place, date, and
time of the adjourned meeting shall be given in conformity herewith. At any
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
SECTION 4. Quorum.
At any meeting of the stockholders, the holders of a majority of all of the
shares of the stock entitled to vote at the meeting, present in person or by
proxy, shall constitute a quorum for all purposes, unless or except to the
extent that the presence of a larger number may be required by law. Where a
separate vote by a class or classes is required, a majority of the shares of
such class or classes present in person or represented by proxy shall constitute
a quorum entitled to take action with respect to that vote on that matter.
If a quorum shall fail to attend any meeting, the chairman of the meeting
may adjourn the meeting to another place, date, or time.
SECTION 5. Organization.
Such person as the Board of Directors may have designated or, in the
absence of such a person, the Chairman of the Board or, in his or her absence,
the Chief Executive Officer of the Corporation or, in his or her absence, such
person as may be chosen by the holders of a majority of the shares entitled to
vote who are present, in person or by proxy, shall call to order any meeting of
the stockholders and act as chairman of the meeting. In the absence of the
Secretary of the Corporation, the secretary of the meeting shall be such person
as the chairman appoints.
SECTION 6. Conduct of Business.
The chairman of any meeting of stockholders shall determine the order of
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him or her in order.
The chairman shall have the power to adjourn the meeting to another place, date
and time. The date and time of the opening and closing of the polls for each
matter upon which the stockholders will vote at the meeting shall be announced
at the meeting.
SECTION 7. Proxies and Voting.
At any meeting of the stockholders, every stockholder entitled to vote may
vote in person or by proxy authorized by an instrument in writing or by a
transmission permitted by law filed in accordance with the procedure established
for the meeting. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this paragraph
may be substituted or used in lieu of the original writing or transmission for
any and all purposes for which the original writing or transmission could be
used, provided that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or transmission.
All voting, including on the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefore by a stockholder entitled to vote or by his or her proxy, a
stock vote shall be taken. Every stock vote shall be taken by ballots, each of
which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
The Corporation may, and to the extent required by law, shall, in advance
of any meeting of stockholders, appoint one or more inspectors to act at the
meeting and make a written report thereof. The Corporation may
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designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting may, and to the extent
required by law, shall, appoint one or more inspectors to act at the meeting.
Each inspector, before entering upon the discharge of his duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his ability. Every vote taken by
ballots shall be counted by a duly appointed inspector or inspectors.
All elections shall be determined by a plurality of the votes cast, and
except as otherwise required by law, all other matters shall be determined by a
majority of the votes cast affirmatively or negatively.
SECTION 8. Stock List.
A complete list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of stock and showing
the address of each such stockholder and the number of shares registered in his
or her name, shall be open to the examination of any such 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 so specified, at the place where the meeting is to be
held.
The stock list shall also be kept at the place of the meeting during the
whole time thereof and shall be open to the examination of any such stockholder
who is present. This list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
ARTICLE II -- BOARD OF DIRECTORS
SECTION 1. Number, Election and Term of Directors.
The number of directors shall be fixed from time to time exclusively by a
resolution of the Board of Directors adopted by the affirmative vote of a
majority of the total number of directors that the Corporation would have if
there were no vacancies. At each annual meeting of stockholders, commencing with
the first annual meeting, directors shall be elected for a term of one year with
each director to hold office until his or her successor shall have been duly
elected and qualified.
SECTION 2. Newly Created Directorships and Vacancies.
Subject to applicable law and to the rights of the holders of any series of
preferred stock with respect to such series of preferred stock, any vacancies on
the Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause or any newly created
directorships resulting from any increase in the authorized number of directors
shall be filled only by the affirmative vote of a majority of the directors then
in office, though less than a quorum, or by a sole remaining director, unless
the Board of Directors determines that any such vacancies or newly created
directorships shall be filled by the stockholders. Directors so chosen shall
hold office for a term expiring at the next annual meeting of stockholders and
until such director's successor shall have been duly elected and qualified. No
decrease in the number of authorized directors constituting the entire Board of
Directors shall shorten the term of any incumbent director.
SECTION 3. Regular Meetings.
Regular meetings of the Board of Directors shall be held at such place or
places, on such date or dates, and at such time or times as shall have been
established by the Board of Directors and publicized among all directors. A
notice of each regular meeting shall not be required.
SECTION 4. Special Meetings.
Special meetings of the Board of Directors may be called by the President
or by two or more directors then in office and shall be held at such place, on
such date, and at such time as they or he or she shall fix.
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Notice of the place, date, and time of each such special meeting shall be given
each director by whom it is not waived by mailing written notice not less than
five (5) days before the meeting or by telephone or by telegraphing or telexing
or by facsimile transmission of the same not less than twenty-four (24) hours
before the meeting. Unless otherwise indicated in the notice thereof, any and
all business may be transacted at a special meeting.
SECTION 5. Quorum.
At any meeting of the Board of Directors, a majority of the total number of
the whole Board shall constitute a quorum for all purposes. If a quorum shall
fail to attend any meeting, a majority of those present may adjourn the meeting
to another place, date, or time, without further notice or waiver thereof.
SECTION 6. Participation in Meetings By Conference Telephone.
Members of the Board of Directors, or of any committee thereof, may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and such participation shall
constitute presence in person at such meeting.
SECTION 7. Conduct of Business.
At any meeting of the Board of Directors, business shall be transacted in
such order and manner as the Board may from time to time determine, and all
matters shall be determined by the vote of a majority of the directors present,
except as otherwise provided herein or required by law. Action may be taken by
the Board of Directors without a meeting if all members thereof consent thereto
in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors.
SECTION 8. Powers.
The Board of Directors may, except as otherwise required by law, exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation, including, without limiting the generality of the foregoing,
the unqualified power:
(1) To declare dividends from time to time in accordance with law;
(2) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
(3) To authorize the creation, making and issuance, in such form as it
may determine, of written obligations of every kind, negotiable or
non-negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(4) To remove any officer of the Corporation with or without cause,
and from time to time to devolve the powers and duties of any officer upon
any other person for the time being;
(5) To confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees and agents;
(6) To adopt from time to time such stock option, stock purchase,
bonus or other compensation plans for directors, officers, employees and
agents of the Corporation and its subsidiaries as it may determine;
(7) To adopt from time to time such insurance, retirement, and other
benefit plans for directors, officers, employees and agents of the
Corporation and its subsidiaries as it may determine; and,
(8) To adopt from time to time regulations, not inconsistent with
these By-laws, for the management of the Corporation's business and
affairs.
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SECTION 9. Compensation of Directors.
Unless otherwise restricted by the certificate of incorporation, the Board
of Directors shall have the authority to fix the compensation of the directors.
The directors may be paid their expenses, if any, of attendance at each meeting
of the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or paid a stated salary or paid other
compensation as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
ARTICLE III -- COMMITTEES
SECTION 1. Committees of the Board of Directors.
The Board of Directors, by a vote of a majority of the whole Board, may
from time to time designate committees of the Board, with such lawfully
delegable powers and duties as it thereby confers, to serve at the pleasure of
the Board and shall, for those committees and any others provided for herein,
elect a director or directors to serve as the member or members, designating, if
it desires, other directors as alternate members who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of any member of any committee and any alternate member in his
or her place, the member or members of the committee present at the meeting and
not disqualified from voting, whether or not he or she or they constitute a
quorum, may by unanimous vote appoint another member of the Board of Directors
to act at the meeting in the place of the absent or disqualified member.
SECTION 2. Conduct of Business.
Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made
for notice to members of all meetings; one-third ( 1/3) of the members shall
constitute a quorum unless the committee shall consist of one (1) or two (2)
members, in which event one (1) member shall constitute a quorum; and all
matters shall be determined by a majority vote of the members present. Action
may be taken by any committee without a meeting if all members thereof consent
thereto in writing, and the writing or writings are filed with the minutes of
the proceedings of such committee.
ARTICLE IV -- OFFICERS
SECTION 1. Generally.
The officers of the Corporation shall consist of a President, one or more
Vice Presidents, a Secretary, a Treasurer and such other officers as may from
time to time be appointed by the Board of Directors. Officers shall be elected
by the Board of Directors, which shall consider that subject at its first
meeting after every annual meeting of stockholders. Each officer shall hold
office until his or her successor is elected and qualified or until his or her
earlier resignation or removal. Any number of offices may be held by the same
person. The salaries of officers elected by the Board of Directors shall be
fixed from time to time by the Board of Directors or by such officers as may be
designated by resolution of the Board.
SECTION 2. Chairman of the Board.
The Chairman of the Board of Directors shall be selected from the Directors
of the Corporation. Subject to the provisions of these By-laws and to the
direction of the Board of Directors, he or she shall preside at all meetings of
the Board of Directors and all meetings of stockholders. He or she shall have
such additional duties and powers as shall be delegated to him or her by the
Board of Directors.
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SECTION 3. President.
The President shall be the Chief Executive Officer of the Corporation.
Subject to the provisions of these By-laws and to the direction of the Board of
Directors, he or she shall have the responsibility for the general management
and control of the business and affairs of the Corporation and shall perform all
duties and have all powers which are commonly incident to the office of chief
executive or which are delegated to him or her by the Board of Directors. He or
she shall have power to sign all stock certificates, contracts and other
instruments of the Corporation which are authorized and shall have general
supervision and direction of all of the other officers, employees and agents of
the Corporation.
SECTION 4. Vice President.
Each Vice President shall have such powers and duties as may be delegated
to him or her by the Board of Directors. One (1) Vice President shall be
designated by the Board to perform the duties and exercise the powers of the
President in the event of the President's absence or disability.
SECTION 5. Treasurer.
The Treasurer shall have the responsibility for maintaining the financial
records of the Corporation. He or she shall make such disbursements of the funds
of the Corporation as are authorized and shall render from time to time an
account of all such transactions and of the financial condition of the
Corporation. The Treasurer shall also perform such other duties as the Board of
Directors may from time to time prescribe.
SECTION 6. Secretary.
The Secretary shall issue all authorized notices for, and shall keep
minutes of, all meetings of the stockholders and the Board of Directors. He or
she shall have charge of the corporate books and shall perform such other duties
as the Board of Directors may from time to time prescribe.
SECTION 7. Delegation of Authority.
The Board of Directors may from time to time delegate the powers or duties
of any officer to any other officers or agents, notwithstanding any provision
hereof.
SECTION 8. Removal.
Any officer of the Corporation may be removed at any time, with or without
cause, by the Board of Directors.
SECTION 9. Action with Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, the President or any
officer of the Corporation authorized by the President shall have power to vote
and otherwise act on behalf of the Corporation, in person or by proxy, at any
meeting of stockholders of or with respect to any action of stockholders of any
other corporation in which this Corporation may hold securities and otherwise to
exercise any and all rights and powers which this Corporation may possess by
reason of its ownership of securities in such other corporation.
ARTICLE V -- STOCK
SECTION 1. Certificates of Stock.
Each stockholder shall be entitled to a certificate signed by, or in the
name of the Corporation by, the President or a Vice President, and by the
Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer,
certifying the number of shares owned by him or her. Any or all of the
signatures on the certificate may be by facsimile.
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SECTION 2. Transfers of Stock.
Transfers of stock shall be made only upon the transfer books of the
Corporation kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation. Except where a
certificate is issued in accordance with Section 4 of Article V of these
By-laws, an outstanding certificate for the number of shares involved shall be
surrendered for cancellation before a new certificate is issued therefor.
SECTION 3. Record Date.
In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders, or to receive payment of
any dividend or other distribution or allotment of any rights or 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, except as
otherwise required by law, fix a record date, which record date shall not
precede the date on which the resolution fixing the record date is adopted and
which record date shall not be more than sixty (60) nor less than ten (10) days
before the date of any meeting of stockholders, nor more than sixty (60) days
prior to the time for such other action as hereinbefore described; provided,
however, that 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, and, for
determining stockholders entitled to receive payment of any dividend or other
distribution or allotment of rights or to exercise any rights of change,
conversion or exchange of stock or for any other purpose, the record date shall
be at the close of business on the day on which the Board of Directors adopts a
resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
SECTION 4. Lost, Stolen or Destroyed Certificates.
In the event of the loss, theft or destruction of any certificate of stock,
another may be issued in its place pursuant to such regulations as the Board of
Directors may establish concerning proof of such loss, theft or destruction and
concerning the giving of a satisfactory bond or bonds of indemnity.
SECTION 5. Regulations.
The issue, transfer, conversion and registration of certificates of stock
shall be governed by such other regulations as the Board of Directors may
establish.
ARTICLE VI -- NOTICES
SECTION 1. Notices.
Except as otherwise specifically provided herein or required by law, all
notices required to be given to any stockholder, director, officer, employee or
agent shall be in writing and may in every instance be effectively given by hand
delivery to the recipient thereof, by depositing such notice in the mails,
postage paid, recognized overnight delivery service or by sending such notice by
facsimile, receipt acknowledged, or by prepaid telegram or mailgram. Any such
notice shall be addressed to such stockholder, director, officer, employee or
agent at his or her last known address as the same appears on the books of the
Corporation. The time when such notice is received, if hand delivered, or
dispatched, if delivered through the mails or by telegram or mailgram, shall be
the time of the giving of the notice.
SECTION 2. Waivers.
A written waiver of any notice, signed by a stockholder, director, officer,
employee or agent, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice
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required to be given to such stockholder, director, officer, employee or agent.
Neither the business nor the purpose of any meeting need be specified in such a
waiver. Attendance at any meeting shall constitute waiver of notice except
attendance for the sole purpose of objecting to the timeliness of notice.
ARTICLE VII -- MISCELLANEOUS
SECTION 1. Facsimile Signatures.
In addition to the provisions for use of facsimile signatures elsewhere
specifically authorized in these By-laws, facsimile signatures of any officer or
officers of the Corporation may be used whenever and as authorized by the Board
of Directors or a committee thereof.
SECTION 2. Corporate Seal.
The Board of Directors may provide a suitable seal, containing the name of
the Corporation, which seal shall be in the charge of the Secretary. If and when
so directed by the Board of Directors or a committee thereof, duplicates of the
seal may be kept and used by the Treasurer or by an Assistant Secretary or
Assistant Treasurer.
SECTION 3. Reliance upon Books, Reports and Records.
Each director, each member of any committee designated by the Board of
Directors, and each officer of the Corporation shall, in the performance of his
or her duties, be fully protected in relying in good faith upon the books of
account or other records of the Corporation and upon such information, opinions,
reports or statements presented to the Corporation by any of its officers or
employees, or committees of the Board of Directors so designated, or by any
other person as to matters which such director or committee member reasonably
believes are within such other person's professional or expert competence and
who has been selected with reasonable care by or on behalf of the Corporation.
SECTION 4. Fiscal Year.
The fiscal year of the Corporation shall be as fixed by the Board of
Directors.
SECTION 5. Time Periods.
In applying any provision of these By-laws which requires that an act be
done or not be done a specified number of days prior to an event or that an act
be done during a period of a specified number of days prior to an event,
calendar days shall be used, the day of the doing of the act shall be excluded,
and the day of the event shall be included.
ARTICLE VIII -- INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. Right to Indemnification.
Each person who was or is made a party or is threatened to be made a party
to or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a director or an officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation to
provide prior to such amendment), against
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all expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such indemnitee in connection therewith; provided,
however, that, except as provided in Section 3 of this ARTICLE VIII with respect
to proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
SECTION 2. Right to Advancement of Expenses.
The right to indemnification conferred in Section 1 of this ARTICLE VIII
shall include the right to be paid by the Corporation the expenses (including
attorney's fees) incurred in defending any such proceeding in advance of its
final disposition (hereinafter an "advancement of expenses"); provided, however,
that, if the Delaware General Corporation Law requires, an advancement of
expenses incurred by an indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Section 2 or otherwise. The rights to indemnification and to
the advancement of expenses conferred in Sections 1 and 2 of this ARTICLE VIII
shall be contract rights and such rights shall continue as to an indemnitee who
has ceased to be a director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
SECTION 3. Right of Indemnitee to Bring Suit.
If a claim under Section 1 or 2 of this ARTICLE VIII is not paid in full by
the Corporation within sixty (60) days after a written claim has been received
by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty (20) days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any
such suit, or in a suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such suit. In
(i) any suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) in any suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the Corporation shall be entitled to recover such
expenses upon a final adjudication that, the indemnitee has not met any
applicable standard for indemnification set forth in the Delaware General
Corporation Law. Neither the 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 suit that indemnification of the
indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this ARTICLE VIII or otherwise shall be on the
Corporation.
SECTION 4. Non-Exclusivity of Rights.
The rights to indemnification and to the advancement of expenses conferred
in this ARTICLE VIII shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, the
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Corporation's Certificate of Incorporation, By-laws, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 5. Insurance.
The Corporation may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
SECTION 6. Indemnification of Employees and Agents of the Corporation.
The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
ARTICLE IX -- AMENDMENTS
In furtherance and not in limitation of the powers conferred by law, the
Board of Directors is expressly authorized to make, alter, amend and repeal
these By-Laws subject to the power of the holders of capital stock of the
Corporation to alter, amend or repeal the By-Laws; provided, however, that, with
respect to the powers of holders of capital stock to make, alter, amend and
repeal By-Laws of the Corporation, notwithstanding any other provision of these
By-Laws 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 capital stock of the Corporation required by law, these
By-Laws or any preferred stock, the affirmative vote of the holders of a
majority of the voting power of all of the then-outstanding shares entitled to
vote generally in the election of directors, voting together as a single class,
shall be required to make, alter, amend or repeal any provision of these
By-Laws.
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