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Amendment No. 1 to
Form 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549-1004
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) or (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Universal Outdoor Holdings, Inc.
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[Exact name of registrant as specified in its charter]
DELAWARE 36-3766705
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(State of incorporation of organization) (I.R.S. Employer Identification No.)
321 Clark Street
Suite 1010
Chicago, Illinois 60610
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registiered
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NONE NONE
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 par value
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(Title of class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered
The securities to be registered hereunder are Shares of Common Stock $.01
par value (the "Common Stock") of Universal Outdoor Holdings, Inc. (the
"Registrant"). A description of the Common Stock is contained under the caption
"Description of Capital Stock", at page 42 of the Preliminary Prospectus as
filed with the Securities and Exchange Commission on July 24, 1996. Such
description is incorporated by reference herein.
Item 2. Exhibit
Pursuant to Subpart I of "Instruction as to Exhibits" of Form 8-A, the
following documents are filed as exhibits to this Registration Statement:
1.1 Form of Third Amended and Restated Certificate of Incorporation
of the Registrant
1.2 Form of Second Amended and Restated Bylaws of the Registrant
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereto duly authorized.
UNIVERSAL OUTDOOR HOLDINGS, INC.
By: /s/ Daniel L. Simon
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Daniel L. Simon, President
July 17, 1996
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LIST OF EXHIBITS
Exhibit Page
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1.1 Form of Third Amended and Restated Certificate of Incorporation
of the Registrant
1.2 Form of Second Amended and Restated Bylaws of the Registrant
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THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
UNIVERSAL OUTDOOR HOLDINGS, INC.
ARTICLE 1
The name of the Corporation is:
UNIVERSAL OUTDOOR HOLDINGS, INC.
ARTICLE 2
The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, County of New Castle.
The name of the Corporation's registered agent at that address is Corporation
Service Company.
ARTICLE 3
The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Delaware General
Corporation Law (the "DELAWARE LAW").
ARTICLE 4
4.1 The total number of shares of stock which the Corporation shall
have authority to issue is 75,000,000 shares of Common Stock, having a par
value of $.01 per share (the "COMMON STOCK"), and 10,000,000 shares of
Preferred Stock, having a par value of $.01 per share (the "PREFERRED
STOCK"). Upon effectiveness of this Third Amended and Restated Certificate
of Incorporation, (i) each share of Class B Common Stock and Class C Common
Stock heretofore authorized, issued and outstanding shall be reclassified
into one share of Common Stock and all authorized shares of Class B Common
Stock and Class C Common Stock shall cease to be authorized and (ii) each
share of Common Stock of the Corporation then issued and outstanding shall be
split into sixteen (16) shares of Common Stock; provided, that no fractional
shares shall be issued as a result of such split, and in lieu thereof all
fractional share interests shall be rounded up to the nearest whole share.
4.2 Each holder of record of shares of the Common Stock shall be
entitled to vote at all meetings of the stockholders and shall have one (1) vote
for each share held by him of record.
4.3 Subject to all of the rights of the holders of all classes or
series of stock at the time outstanding having prior rights as to dividends, the
holders of the Common Stock shall be entitled to receive dividends at such times
and in such amounts as may be determined by the Board of Directors of the
Corporation.
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4.4 The Board of Directors is expressly authorized to provide for the
issuance of all or any shares of the Preferred Stock in one or more classes or
series, and to fix for each such class or series such voting powers, full or
limited, or no voting powers, and such distinctive designations, preferences and
relative, participating, optional or other special rights and such
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issuance of such class or series and as may be permitted by
the Delaware Law.
4.5 In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Common Stock
shall be entitled, after payment or provision for payment of the debts and other
liabilities of the Corporation and the amount to which the holders of any class
or series of the Preferred Stock shall be entitled, to share ratably in the
remaining net assets of the Corporation.
ARTICLE 5
The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(a) The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors.
(b) The directors shall have concurrent power with the stockholders
to make, alter, amend, change, add to or repeal the By-Laws of the
Corporation.
(c) The number of directors of the Corporation shall be not less than
three (3) nor more than nine (9) and shall be fixed in accordance with the
By-Laws of the Corporation. Election of directors need not be by written
ballot unless the By-Laws so provide.
(d) The directors shall be divided into three classes designated as
Class I, Class II and Class III, respectively. Each class shall consist,
as nearly as may be possible, of one-third of the total number of directors
constituting the entire Board of Directors. At each annual meeting of the
stockholders, successors to the class of directors whose term expires at
the annual meeting shall be elected for a three-year term. The initial
term of the Class I directors shall expire at the 1997 annual meeting of
the stockholders; the initial term of the Class II directors shall expire
at the 1998 annual meeting of the stockholders; and the initial term of the
Class III directors shall expire at the 1999 annual meeting of the
stockholders. If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain the
number of directors in each class as nearly as equal as possible, but in no
case shall a decrease in the number of directors shorten the term of any
incumbent director. A director shall hold office until the annual meeting
for the year in which
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his term expires and until his successor shall be elected and shall
qualify, subject, however, to prior death, resignation, retirement or
removal from office.
(e) Subject to the rights, if any, of holders of any series of the
Preferred Stock then outstanding, any vacancy on the Board of Directors
that results from an increase in the number of directors may be filled by a
majority of the Board of Directors then in office, provided that a quorum
is present, and any other vacancy occurring in the Board of Directors may
be filled by a majority of the directors then in office, even if less than
a quorum. Any director elected to fill a vacancy resulting from an
increase in the size of a class of directors shall hold office for a term
that shall coincide with the remaining term of that class. Any director
elected to fill a vacancy not resulting from an increase in the number of
directors shall have the same remaining term as that of his predecessor.
(f) No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for 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) pursuant to Section 174 of the Delaware Law or (iv)
for any transaction from which the director derived an improper personal
benefit.
(g) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered
to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless, to the
provisions of the Delaware Law, this Third Amended and Restated Certificate
of Incorporation, and any By-Laws adopted by the stockholders; provided,
however, that no By-Laws hereafter adopted by the stockholders shall
invalidate any prior act of the directors which would have been valid if
such By-Laws had not been adopted.
ARTICLE 6
The Corporation shall indemnify, in accordance with and to the full
extent now or hereafter permitted by law, 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
(including, without limitation, an action by or in the right of the
Corporation), by reason of his acting as a director of the Corporation (and the
Corporation, in the discretion of the Board of Directors, may so indemnify a
person by reason of the fact that he is or was an officer or employee of the
Corporation or is or was serving at the request of the Corporation in any other
capacity for or on behalf of the Corporation) against any liability or expense
actually or reasonably incurred by such person in respect thereof; PROVIDED,
HOWEVER, that the Corporation shall not be obligated to indemnify any such
person: (1) with respect to proceedings, claims or actions initiated or brought
voluntarily without the authorization or consent of the Corporation by such
person and not by way of defense; or (ii) for any amounts paid in settlement of
an action effected
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without the prior written consent of the Corporation to such settlement. Such
indemnification is not exclusive of any other right of indemnification provided
by law, agreement or otherwise.
ARTICLE 7
No amendment to or repeal of Articles 5(f) or 6 of this Third and
Amended and Restated Certificate of Incorporation shall apply to or have any
effect on the rights of any individual referred to in Articles 5(f) or 6 for or
with respect to acts or omissions of such individual occurring prior to such
amendment or repeal.
ARTICLE 8
Meetings of stockholders may be held within or without the State of
Delaware, as the By-Laws may provide. The books of the Corporation may be kept
(subject to any provision contained in the Delaware Law) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation. Election of directors
need not be by written ballot unless the By-laws of the Corporation shall so
provide. The authority contemplated by Section 228 of the Delaware Law which
permits stockholders to action by written consent is expressly denied to the
stockholders of the Corporation. Accordingly, the stockholders have no ability
to take any action unless such action is taken at an annual or special meeting
of the stockholders.
ARTICLE 9
No stockholder of the Corporation shall by reason of holding shares of
any class of stock have any pre-emptive or preferential right to purchase or
subscribe to any shares of any class of stock of the Corporation, now or
hereafter to be authorized, or any notes, debentures, bonds, or other securities
convertible into or carrying options or warrants to purchase shares of any class
of such stock, now or hereafter to be authorized, whether or not the issuance of
any such shares, or such notes, debentures, bonds or other securities would
adversely affect the dividend or voting rights of such stockholder, other than
such rights, if any, as the Board of Directors, in its discretion from time to
time, may grant and at such price as the Board of Directors in its discretion
may fix; and the Board of Directors may issue shares of any class of stock of
the Corporation, or any notes, debentures, bonds or other securities convertible
into or carrying options or warrants to purchase shares of any class of such
stock, without offering any such shares of any class, either in whole or in
part, to the existing stockholders of any class of such stock.
ARTICLE 10
The By-laws may be altered, amended or repealed or new By-laws may be
adopted by (i) the holders of at least 66-2/3% of the total voting power of all
shares of stock of the Corporation entitled to vote in the election of
directors, or (ii) the Board of Directors, at any regular meeting of the
stockholders or the Board of Directors, or at any special meeting of the
stockholders or the Board
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of Directors if notice of such alteration, amendment, repeal or adoption of new
By-laws be contained in the notice of such special meeting.
ARTICLE 11
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Third Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
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SECOND AMENDED AND RESTATED BY-LAWS
OF
UNIVERSAL OUTDOOR HOLDINGS, INC.
(A Delaware Corporation)
ARTICLE I.
OFFICES
The registered office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware. The Corporation 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.
STOCKHOLDERS
Section 1. TIME AND PLACE OF MEETINGS. All meetings of the
stockholders for the election of directors or for any other purpose shall be
held at such time and place, within or without the State of Delaware, as shall
be designated by the Board of Directors. In the absence of a designation of a
place for any such meeting by the Board of Directors, each such meeting shall be
held at the principal office of the Corporation.
Section 2. ANNUAL MEETINGS. An annual meeting of stockholders shall be
held for the purpose of electing directors and transacting such other business
as may properly be brought before the meeting. The date of the annual meeting
shall be determined by the Board of Directors.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by the Third Amended and
Restated Certificate of Incorporation, as amended from time to time (the
"CERTIFICATE OF INCORPORATION"), or by law, may be called by the Chairman of the
Board or the President and shall be called by the Secretary at the direction of
a majority of the Board of Directors.
Section 4. NOTICE OF MEETINGS. Written notice of each meeting of the
stockholders stating the place, date and time of the meeting 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. The notice of any special
meeting of stockholders shall state the purpose or purposes for which the
meeting is called. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice. Neither the business to
be transacted at, nor the purpose of, an annual or special meeting of
stockholders need be specified in any written waiver of notice.
Section 5. QUORUM; ADJOURNMENTS. The holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as otherwise
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required by these By-laws, the Certificate of Incorporation, or the Delaware
General Corporation Law as from time to time in effect (the "DELAWARE LAW"). If
a quorum is not represented, the holders of the stock present in person or
represented by proxy at the meeting and entitled to vote thereat shall have
power, by the affirmative vote of the holders of a majority of such stock, to
adjourn the meeting to another time and/or place, without notice other than
announcement at the meeting, except as hereinafter provided, until a quorum
shall be present or represented. At such adjourned meeting, at which a quorum
shall be present or represented, any business may be transacted 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. Withdrawal of
stockholders from any meeting shall not cause the failure of a duly constituted
quorum at such meeting.
Section 6. VOTING. (a) At all meetings of the stockholders, each
stockholder shall be entitled to vote, in person, or by proxy appointed in an
instrument in writing subscribed by the stockholder or otherwise appointed in
accordance with Section 212 of the Delaware Law, each share of voting stock
owned by such stockholder of record on the record date for the meeting. Each
stockholder shall be entitled to one vote for each share of voting stock held by
such stockholder, unless otherwise provided in the Delaware Law or the
Certificate of Incorporation.
(b) When a quorum is present at any meeting, the affirmative vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy and voting shall decide any question brought before such
meeting, unless the question is one upon which, by express provision of law or
of the Certificate of Incorporation, a different vote is required, in which case
such express provision shall govern and control the decision of such question.
Any stockholder who is in attendance at a meeting of stockholders either in
person or by proxy, but who abstains from the vote on any matter, shall not be
deemed present or represented at such meeting for purposes of the preceding
sentence with respected to such vote, but shall be deemed present or represented
at such meeting for all other purposes.
Section 7. ORGANIZATION. At every meeting of the stockholders, the
Chairman of the Board, if there be one, or in the case of a vacancy in the
office or absence of the Chairman of the Board, one of the following persons
present in the order stated: the Vice Chairman, if one has been appointed, the
President, the Vice Presidents in their order or rank, a chairman designated by
the Board of Directors or a chairman chosen by the stockholders entitled to cast
a majority of the votes which all stockholders present in person or by proxy are
entitled to cast, shall act as chairman, and the Secretary, or, in his absence,
an Assistant Secretary, or in the absence of the Secretary and the Assistant
Secretaries, a person appointed by the chairman, shall act as secretary of the
meeting.
Section 8. PRE-MEETING NOTIFICATION REQUIREMENT. At an annual meeting
of stockholders, only such business or proposals ("business") shall be conducted
as shall have been properly brought before an annual meeting. To be properly
brought before an annual meeting, the business must be: (a) specified in the
notice of annual meeting (or any supplement thereto) given by or at the
direction
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of the Board of Directors; (b) otherwise properly brought before an annual
meeting by or at the direction of the Board of Directors; or (c) otherwise
properly brought before an annual meeting by a stockholder of the Corporation.
For business to be properly brought before an annual meeting by a
stockholder of the Corporation, the stockholder must give timely written notice
of the business to be brought before an annual meeting to the Secretary of the
Corporation. To be timely, a stockholder's written notice (the "NOTICE") must
be delivered or mailed to and actually received at the Corporation's principal
headquarters at least forty-five (45) days prior to the date of the annual
meeting; provided, however, that if less than sixty (60) days' notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
the Notice shall be delivered to the Secretary of the Corporation not later than
the close of business on the 10th day following the day on which such notice of
the date of the meeting was mailed or such public disclosure was made. A
stockholder's written notice to the Secretary of the Corporation of the business
to be brought before the annual meeting shall set forth as to each matter: (1)
a brief description of the business desired to be brought before the annual
meeting; (2) the name and address of the stockholder proposing the business to
be brought before the annual meeting; (3) the class and number of shares of the
Corporation held by the stockholder proposing to bring business before the
annual meeting; and (4) any material interest of the stockholder making the
written submission in the business to be brought before the annual meeting.
Notwithstanding anything in these By-laws in the contrary, no business
shall be conducted at an annual meeting except in accordance with the
provisions and procedures set forth in this section of the By-laws.
The presiding officer of an annual meeting shall, if the facts warrant,
determine and declare to the annual meeting that the business was not properly
brought before the meeting and, in accordance with the provisions hereof,
declare to the annual meeting that any such business not properly brought before
the meeting shall not be transacted.
ARTICLE III.
DIRECTORS
Section 1. GENERAL POWERS. The business and affairs of the Corporation
shall be managed and controlled by or under the direction of its Board of
Directors, which may exercise all such powers of, and do all such acts and
things as may be done by, the Corporation and do all such lawful acts and things
as are not by law or by the Certificate of Incorporation or by these By-laws
directed or required to be exercised or done by the stockholders.
Section 2. NUMBER, QUALIFICATION AND TENURE. The number of directors
shall be determined from time to time by resolution of the Board of Directors
adopted by a majority of the total number of authorized directors (whether or
not there exist any vacancies in the previously authorized directorships at the
time any such resolution is presented to the Board of Directors for
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adoption), subject to the provisions of the Certificate of Incorporation. The
directors shall be elected at the annual meeting of the stockholders, except as
provided in the Certificate of Incorporation or SECTION 3 of this Article, and
each director elected shall hold office until his or her successor is elected
and qualified or until his or her earlier death, termination, resignation or
removal from office. Directors need not be stockholders.
Section 3. VACANCIES AND NEWLY-CREATED DIRECTORSHIPS. Vacancies and
newly-created directorships resulting from any increase in the number of
directors may be filled by a majority of the directors then in office, although
less than a quorum, or by a sole remaining director, and each director so chosen
shall hold office until his or her successor is elected and qualified or until
his or her earlier death, termination, resignation, retirement, disqualification
or removal from office. If there are no directors in office, then an election
of directors may be held in the manner provided by law.
Section 4. PLACE OF MEETINGS. The Board of Directors may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. MEETINGS. The Board of Directors shall hold a regular
meeting, to be known as the annual meeting, immediately following each annual
meeting of the stockholders. Other regular meetings of the Board of Directors
shall be held at such time and place as shall from time to time be determined by
the Board. No notice of regular meetings need be given, other than by
announcement at the immediately preceding regular meeting. Special meetings of
the Board may be called by the President or by the Secretary on the written
request of a majority of the Board of Directors. Notice of any special meeting
of the Board shall be given at least two (2) days prior thereto, either in
writing, or telephonically if confirmed promptly in writing, to each director at
the address shown for such director on the records of the Corporation.
Section 6. WAIVER OF NOTICE; BUSINESS AND PURPOSE. Notice of any
meeting of the Board of Directors may be waived in a writing signed by the
person or persons entitled to such notice either before or after the time of the
meeting. The attendance of a director at any meeting shall constitute a waiver
of notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened and at the beginning of the meeting
records such objection with the person acting as secretary of the meeting and
does not thereafter vote on any action taken at the meeting. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Board need be specified in the notice or waiver of notice of such
meeting, unless specifically required by the Delaware Law.
Section 7. QUORUM AND MANNER OF ACTING. At all meetings of the Board
of Directors a majority of the total number of directors shall constitute a
quorum for the transaction of business. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present. The act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise
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specifically provided by the Delaware Law or by the Certificate of
Incorporation. Withdrawal of directors from any meeting shall not cause the
failure of a duly constituted quorum at such meeting.
Section 8. ORGANIZATION. The Chairman of the Board, if elected, shall
act as chairman at all meetings of the Board of Directors. If the Chairman of
the Board is not elected or, if elected, is not present, a director chosen by a
majority of the directors present, shall act as chairman at such meeting of the
Board of Directors.
Section 9. COMMITTEES. The Board of Directors, by resolution adopted
by a majority of the whole Board, may designate one or more directors to
constitute an Executive Committee. The Board of Directors, by resolution
adopted by a majority of the whole Board, may create one or more other
committees and appoint one or more directors to serve on such committee or
committees. Each director appointed to serve on any such committee shall serve,
unless the resolution designating the respective committee is sooner amended or
rescinded by the Board of Directors, until the next annual meeting of the Board
or until their respective successors are designated. The Board of Directors, by
resolution adopted by a majority of the whole Board, may also designate
additional directors as alternate members of any committee to serve as members
of such committee in the place and stead of any regular member or members
thereof who may be unable to attend a meeting or otherwise unavailable to act as
a member of such committee. In the absence or disqualification of a member and
all alternate members designated to serve in the place and stead of such member,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not such member or members constitute a quorum, may
unanimously appoint another director to act at the meeting in the place and
stead of such absent or disqualified member.
The Executive Committee 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 between the meetings of the Board of Directors, and
any other committee may exercise the power and authority of the Board of
Directors to the extent specified by the resolution establishing such committee,
or the Certificate of Incorporation or these By-laws; PROVIDED, HOWEVER, that no
committee may take any action that is expressly required by the Delaware Law or
the Certificate of Incorporation or these By-laws to be taken by the Board of
Directors and not by a committee thereof. Each committee shall keep a record of
its acts and proceedings, which shall form a part of the records of the
Corporation in the custody of the Secretary, and all actions of each committee
shall be reported to the Board of Directors at the next meeting of the Board.
Meetings of committees may be called at any time by the Chairman of the
Board, if any, the President or the chairman of the respective committee. A
majority of the members of the committee shall constitute a quorum for the
transaction of business and, except as expressly limited by this section, the
act of a majority of the members present at any meeting at which there is a
quorum shall be the act of such committee. Except as expressly provided in this
section or in the resolution designating the committee, a majority of the
members of any such committee may select its chairman, fix its rules of
procedure, fix the time and place of its meetings and specify what notice of
meetings, if any, shall be given.
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Section 10. ACTION WITHOUT MEETING. Unless otherwise specifically
prohibited by the Certificate of Incorporation or these By-laws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting, if all members of the
Board of Directors or such committee, as the case may be, execute a consent
thereto in writing setting forth the action so taken, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
such committee.
Section 11. ATTENDANCE BY TELEPHONE. Members of the Board of Directors,
or any committee thereof, may participate in and act at any meeting of the Board
of Directors, or such committee, as the case may be, through the use of a
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in such
meeting shall constitute attendance and presence in person at the meeting of the
person or persons so participating.
Section 12. COMPENSATION. By resolution of the Board of Directors,
irrespective of any personal interest of any of the members, the directors may
be paid their reasonable expenses, if any, of attendance at each meeting of the
Board of Directors and may be paid a fixed sum of attendance at meetings or a
stated salary as directors. These payments shall not preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 13. NOMINATIONS.
(a) Nominations for election of directors may be made at a meeting of
stockholders only (i) by or at the direction of the Board of Directors of the
Corporation or (ii) by any stockholder entitled to vote for the election of
directors, provided that written notice (the "DIRECTORS NOTICE") of such
stockholder's intent to nominate a director at the meeting is given by the
stockholder and received by the Secretary of the Corporation in the manner and
within the time specified in this subsection. The Directors Notice shall be
delivered to the Secretary of the Corporation at least forty-five (45) days
prior to any meeting of the stockholders called for the election of directors;
provided, however, that if less than sixty (60) days' notice or prior public
disclosure of the date of the meeting is given or made to stockholders, the
Directors Notice shall be delivered to the Secretary of the Corporation not
later than the close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made.
Any adjournment(s) or postponement(s) of the original meeting whereby the
meeting will reconvene within thirty (30) days from the original date shall be
deemed for purposes of notice to be a continuation of the original meeting and
no nominations by a stockholder or persons to be elected directors of the
Corporation may be made at any such reconvened meeting other than pursuant to a
notice that was timely for the meeting and date originally scheduled. In lieu
of delivery to the Secretary of the Corporation, the Directors Notice may be
mailed to the Secretary of the Corporation by certified mail, return receipt
requested, but shall be deemed to have been given only upon actual receipt by
the Secretary of the Corporation.
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(b) The Directors Notice shall be in writing and shall contain or be
accompanied by:
(1) the name and residence of such stockholder;
(2) a representation that the stockholder is a holder of record of
the Corporation's voting stock and intends to appear in person or by proxy
at the meeting to nominate the person or persons specified in the Directors
Notice;
(3) such information regarding each nominee as would have been
required to be included in a proxy statement filed pursuant to Regulation
14A of the rules and regulations established by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended (or
pursuant to any successor act or regulation), had proxies been solicited
with respect to such nominee by the management or Board of Directors of the
Corporation;
(4) a description of all arrangements or understandings among the
stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which such nomination or nominations are to
be made by the stockholder; and
(5) the written consent of each nominee to serve as a director of the
Corporation if so elected.
(c) The chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that any nomination made at the meeting was not made in
accordance with the foregoing procedures and, in such event, the nomination
shall be disregarded. Any decision by the chairman of the meeting shall be
conclusive and binding upon all stockholders of the Corporation for any purpose.
(d) The above procedures shall not apply to nominations with respect to
which proxies shall have been solicited pursuant to a proxy statement filed
pursuant to Regulation 14A of the rules and regulations adopted by the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended or pursuant to any successor act or regulation.
ARTICLE IV.
OFFICERS
Section 1. ENUMERATION. The officers of the Corporation shall be
chosen by the Board of Directors and shall include a President, one or more Vice
Presidents, a Secretary, and a Chief Financial Officer. The Board of Directors
may also elect a Chairman of the Board (who shall be considered an officer of
the Corporation), Chief Executive Officer, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers and agents as it may deem
appropriate. Any number of offices may be held by the same person.
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Section 2. TERM OF OFFICE. The officers of the Corporation shall be
elected at the annual meeting of the Board of Directors and shall hold office
until their successors are elected and qualified, or until their earlier death,
termination, resignation or removal from office. Any officer or agent of the
Corporation may be removed at any time by the Board of Directors, with or
without cause. Any vacancy in any office because of death, resignation,
termination, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Section 3. CHAIRMAN OF THE BOARD. The Chairman of the Board, when and
if elected, shall preside at meetings of the Board of Directors and of
stockholders and shall have such other functions, authority and duties as
customarily appertain to the office of the Chairman of a business corporation or
as may be prescribed by the Board of Directors. The Chairman of the Board shall
have the authority to execute and deliver on behalf of the Company all
instruments, documents, certificates or contracts to the same extent as the
Chief Executive Officer, or if one is not elected, the President. The Chairman
of the Board, if any, shall be a member of the Board of Directors of the
Corporation.
Section 4. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer, when
and if elected, shall have general supervision, direction and control of the
business and affairs of the Corporation, subject to the control of the Board of
Directors, and shall have such other functions, authority and duties as
customarily appertain to the office of Chief Executive Officer of a business
corporation or as may be prescribed by the Board of Directors.
Section 5. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
have general supervision, direction and control over the treasury and the
finances of the Company, including but not limited to the authority over
finance, treasury and accounting personnel and functions of the Company, to act
as agent for the Company in respect of its dealings with creditors and
stockholders on financial matters, and the authority to negotiate all financial
matters of the Company on its behalf, subject to the control of the Board of
Directors. The Chief Financial Officer shall have such other functions,
authority and duties as customarily appertain to the office of the Chief
Financial Officer of a business corporation or as may be prescribed by the Board
of Directors.
Section 6. PRESIDENT. During any period when there shall be an office
of Chairman of the Board, the President shall be the chief operating officer of
the Corporation and shall have such functions, authority and duties as may be
prescribed by the Board of Directors.
Section 7. VICE PRESIDENT. Each Vice President, if any, shall perform
such duties and have such other powers as may from time to time be prescribed by
the Board of Directors, the Chairman of the Board, or the President.
Section 8. SECRETARY. The Secretary shall: (a) keep a record of all
proceedings of the stockholders, the Board of Directors and any committees
thereof in one of more books provided for that purpose; (b) give, or cause to be
given, all notices that are required by law or these By-laws to be given by the
Secretary; (c) be custodian of the corporate records and, if the Corporation has
a corporate seal, of the seal of the Corporation; (d) have authority to affix
the seal of the Corporation
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to all instruments the execution of which requires such seal and to attest such
affixing of the seal; (e) keep a register of the post office address of each
stockholder which shall be furnished to the Secretary by such stockholder; (f)
sign, with the Chairman, President or any Vice President, or any other officer
thereunto authorized by the Board of Directors, any certificates for shares of
the Corporation, or any deeds, mortgages, bonds, contracts or other instruments
which the Board of Directors has authorized to be executed by the signature of
more than one officer; (g) have general charge of the stock transfer books of
the Corporation; (h) have authority to certify as true and correct, copies of
the By-laws, or resolutions of the stockholders, the Board of Directors and
committees thereof, and of other documents of the Corporation; and (i) in
general, perform the duties incident to the office of secretary and such other
duties as from time to time may be prescribed by the Board of Directors, the
Chairman of the Board or the President. The Board of Directors may give general
authority to any other officer to affix the seal of the Corporation and to
attest such affixing of the seal.
Section 9. OTHER OFFICERS AND AGENTS. Any officer or agent who is
elected or appointed from time to time by the Board of Directors and whose
duties are not specified in these By-laws shall perform such duties and have
such powers as may from time to time be prescribed by the Board of Directors,
the Chairman of the Board or the President.
ARTICLE V.
CERTIFICATES OF STOCK AND THEIR TRANSFER
Section 1. FORM. The shares of the Corporation shall be represented by
certificates. Each certificate for shares shall be consecutively numbered or
otherwise identified. Certificates of stock in the Corporation shall be signed
by or in the name of the Corporation by the Chairman of the Board or the
President and by the Secretary of the Corporation. Where a certificate is
countersigned by a transfer agent, other than the Corporation or an employee of
the Corporation, or by a registrar, the signatures of one or more officer of the
Corporation 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, the certificate may be issued by the Corporation with the
same effect as if such officer, transfer agent or registrar were such officer,
transfer agent or registrar at the date of its issue.
Section 2. TRANSFER. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate of
stock or uncertificated shares in place of any certificate theretofore issued by
the Corporation to the person entitled thereto, cancel the old certificate and
record the transaction in its stock transfer books.
Section 3. REPLACEMENT. In case of the loss, destruction, mutilation
or theft of a certificate for any stock of the Corporation, a new certificate of
stock or uncertificated shares in place of any certificate theretofore issued by
the Corporation may be issued upon the surrender of the
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mutilated certificate or, in the case of loss, destruction or theft of a
certificate, upon satisfactory proof of such loss, destruction or theft and upon
such terms as the Board of Directors may prescribe. The Board of Directors may
in its discretion require the owner of the lost, destroyed or stolen
certificate, or his legal representative, to give the Corporation a bond, in
such sum and in such form and with such surety or sureties as it may direct, to
indemnify the Corporation against any claim that may be made against it with
respect to the certificate alleged to have been lost, destroyed or stolen.
ARTICLE VI.
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Section 1. THIRD PARTY ACTIONS. The Corporation shall indemnify 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, including all appeals (other than an
action, suit or proceeding by or in the right of the Corporation) by reason of
the fact that he is or was a director or officer of the Corporation (and the
Corporation, in the discretion of the Board of Directors, may so indemnify a
person by reason of the fact that he is or was an employee or agent of the
Corporation or is or was serving at the request of the Corporation in any other
capacity for or on behalf of the Corporation), against expenses (including
attorneys' fees), judgments, decrees, fines, penalties, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner which he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; PROVIDED, HOWEVER, the
Corporation shall be required to indemnify an officer or director in connection
with an action, suit or proceeding initiated by such person only if such action,
suit or proceeding was authorized by the Board of Directors. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith or in a manner which he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending, or completed action of suit,
including all appeals, by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director or
officer of the Corporation (and the Corporation, in the discretion of the Board
of Directors, may so indemnify a person by reason of the fact that he is or was
an employee or agent of the Corporation or is or was serving at the request of
the Corporation in any other capacity for or on behalf of the Corporation),
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been finally adjudged to be liable for negligence
or misconduct in the performance of his duty) to the Corporation unless and only
to the extent that the court in which such action or suit was
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brought, or any other court of competent jurisdiction, shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as such court shall deem proper. Notwithstanding
the foregoing, the Corporation shall be required to indemnify an officer or
director in connection with an action, suit or proceeding initiated by such
person only if such action, suit or proceeding was authorized by the Board of
Directors.
Section 3. INDEMNITY IF SUCCESSFUL. To the extent that a director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in SECTION
1 or 2 of this Article, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 4. STANDARD OF CONDUCT. Any indemnification under SECTION 1
and 2 of this Article (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
SECTION 1 or 2, as applicable, of this Article. Such determination shall be
made (i) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum, or (ii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (iii) by the stockholders.
Section 5. EXPENSES. Expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding or threat thereof shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article.
Such expenses (including attorneys' fees) incurred by other employees and agents
may be so paid upon the receipt of the aforesaid undertaking and such terms and
conditions, if any, as the Board of Directors deems appropriate.
Section 6. NONEXCLUSIVITY. The indemnification and advancement of
expenses provided by, or granted pursuant to, other Sections of this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may now or hereafter be entitled
under any law, by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
Section 7. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another Corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the
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Corporation would have the power to indemnify him against such liability under
the provisions of the Delaware Law.
Section 8. DEFINITIONS. For purposes of this Article, references to
"the Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had the power and authority to indemnify any or all of its directors,
officers, employees and 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 in any other capacity, shall
stand in the same position under the provisions of this Article with respect to
the resulting or surviving corporation as such person would have had with
respect to such constituent corporation if its separate existence had continued.
For purposes of this Article, references to "other capacities" shall
include serving as a trustee or agent for any employee benefit plan; 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 or she reasonably believed to be in the best interests 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.
Section 9. SEVERABILITY. If any provision hereof is invalid or
unenforceable in any jurisdiction, the other provisions hereof shall remain in
full force and effect in such jurisdiction, and the remaining provisions hereof
shall be liberally construed to effectuate the provisions hereof, and the
invalidity of any provision hereof in any jurisdiction shall not affect the
validity or enforceability of such provision in any other jurisdiction.
Section 10. AMENDMENT. The right to indemnification conferred by this
Article shall be deemed to be a contract between the Corporation and each person
referred to therein until amended or repealed, but no amendment to or repeal of
these provisions shall apply to or have any effect on the right to
indemnification of any person with respect to any liability or alleged liability
of such person for or with respect to any act or omission of such person
occurring prior to such amendment or repeal.
ARTICLE VII.
GENERAL PROVISIONS
Section 1. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed from time to time by resolution of the Board of Directors.
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Section 2. CORPORATION SEAL. The corporate seal, if any, of the
Corporation shall be in such form as may be approved from time to time by the
Board of Directors. The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or in any other manner reproduced.
Section 3. NOTICES AND MAILING. Except as otherwise provided in the
Act, the Articles of Incorporation or these By-laws, all notices required to be
given by any provision of these By-laws shall be deemed to have been given (i)
when received, if given in person, (ii) on the date of acknowledgment of
receipt, if sent by telex, facsimile or other wire transmission, (iii) one day
after delivery, properly addressed, to a reputable courier for same day or
overnight delivery or (iv) three (3) days after being deposited, properly
addressed, in the U.S. Mail, certified or registered mail, postage prepaid.
Section 4. WAIVER OF NOTICE. Wherever any notice is required to be
given under the Delaware Law or the provisions of the Certificate of
Incorporation or these By-laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice.
Section 5. INTERPRETATION. In these By-laws, unless a clear contrary
intention appears, the singular number includes the plural number and VICE
VERSA, and reference to either gender includes the other gender.
ARTICLE VIII.
AMENDMENTS
These By-laws may be altered, amended or repealed or new By-laws may be
adopted by (i) the holders of at least 66-2/3% of the total voting power of all
shares of stock of the Corporation entitled to vote in the election of
directors, considered for the purposed of this Article VIII as one class, or
(ii) the Board of Directors, at any regular meeting of the stockholders or the
Board of Directors or at any special meeting of the stockholders or of the Board
of Directors if notice of such alteration, amendment, repeal or adoption of new
By-laws be contained in the notice of such special meeting.
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