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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
APRIL 7, 1999
Date of Report
(Earliest Reported
Event is April 6, 1999)
FAMILY GOLF CENTERS, INC.
(Exact name of registrant as specified in its charter)
COMMISSION FILE NO. 0-25098
DELAWARE 11-3223246
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or jurisdiction)
538 BROADHOLLOW ROAD
MELVILLE, NEW YORK 11747
(Address of principal (Zip Code)
executive offices)
(516) 694-1666
Registrant's telephone number, including area code:
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(Former names or former address, if changed since last report)
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Item 5. Additional Information.
On April 7, 1999, Family Golf Centers, Inc. issued the following press
release:
PRESS RELEASE
MELVILLE, NEW YORK, APRIL 7 -- Family Golf Centers, Inc. (NASDAQ, NM:
FGCI) today announced that the Board of Directors of the Company approved the
declaration of a dividend distribution of one Preferred Share Purchase Right (a
"Right") on each outstanding share of its Common Stock. Each Right will entitle
shareholders to buy one one-thousandth of a share of newly created Series A
Junior Participating Preferred Stock of the Company at an exercise price of
$75.00. The Rights will be exercisable if a person or group hereafter acquires
15% or more of the Common Stock of the Company (or with respect to persons
currently holding 15% or more of the Common Stock, if such person acquires an
additional 1% or more of the Common Stock) or announces a tender offer for 15%
or more of the Common Stock. The Board of Directors will be entitled to redeem
the Rights at one cent per Right at any time before any person hereafter
acquires 15% (or such additional 1%) or more of the outstanding Common Stock.
The Rights are not being distributed in response to any specific effort
to acquire the Company. The Rights are designed to assure that all shareholders
of the Company receive fair and equal treatment in the event of any proposed
takeover of the Company and to guard against partial tender offers, open market
accumulations and other tactics designed to gain control of the Company without
paying all shareholders a fair price.
If a person hereafter acquires 15% or more of the outstanding Common
Stock of the Company (or for those persons currently holding more that 15% of
the Common Stock, up to an additional 1% of the Common Stock) (the "Acquiring
Person"), each Right will entitle its holder to purchase, at the Right's
exercise price, a number of shares of Common Stock having a market value at that
time of twice the Right's exercise price. Rights held by the Acquiring Person
will become void and will not be exercisable to purchase shares at the bargain
purchase price. If the Company is acquired in a merger or other business
combination transaction after a person acquires 15% or more of the Company's
Common Stock or the rights are otherwise triggered, each Right will entitle its
holder to purchase, at the Right's then-current exercise price, a number of the
acquiring company's common shares having a market value at that time of twice
the Right's exercise price.
The dividend distribution will be payable on April 30, 1999, to
shareholders of record on April 20, 1999. The Rights will expire in ten years.
The Rights distribution is not taxable to shareholders.
In addition to approving the Stockholder Rights Plan, the Board of
Directors of the Company adopted amendments to certain provisions of the
Company's by-laws to provide the Board of Directors with greater flexibility to
act in the best interests of the Company and its stockholders. The Board of
Directors amended the By-laws (i) to authorize the Board of Directors to set the
date for any special meeting of stockholders, (ii) to expand and clarify the
procedures for advance notice of
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stockholder nominations and stockholder proposals, (iii) to authorize the Board
of Directors to postpone or cancel a scheduled meeting of stockholders, and (iv)
to authorize the Chairman of the Board of Directors to adjourn any meeting of
stockholders and to establish the procedures for conducting a stockholder
meeting.
Family Golf Centers, Inc. is the leading operator and consolidator of
golf centers in North America. The Company's golf centers provide a wide variety
of practice and play opportunities, including facilities for driving, chipping,
putting, pitching and sand play and typically offer full-time pro shops, golf
lessons and other amenities such as miniature golf and snack bars. The Company
also operates complementary sports and family entertainment facilities,
including ice rinks and Family Sports Supercenters. Currently, the Company owns,
operates, manages or has under construction 121 golf centers and 28 ice rink and
family entertainment facilities in 25 states and three Canadian provinces.
Item 7. Financial Statements, Pro Forma Financial Information And Exhibits.
(c) Exhibits
Exhibit No. Description
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4.1 Amendments to the Family Golf Centers, Inc. By-Laws
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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 hereunto duly authorized.
Date: April 7, 1999 Family Golf Centers, Inc.
By: /s/ Dominic Chang
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Name: Dominic Chang
Title: Chairman of the Board
and Chief Executive Officer
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EXHIBIT 4.1
Family Golf Centers, Inc.
Amended By-Laws
Adopted April 6, 1999
2.2. Special Meeting. Except as otherwise provided in the Amended and
Restated Certificate of Incorporation (the "Certificate"), special meetings of
stockholders for any purpose or purposes may be called by the Chairman of the
Board, the Chief Executive Officer, or a majority of the Board.
2.3. Date, Time and Place of Special Meeting. The Board or, in the
absence of action by the Board, the Chairman of the Board, shall have the sole
power to determine the date, time and place of any special meeting of
stockholders. A special meeting of stockholders may be held at any place within
or without the State of Delaware designated by the Board, or in the absence of
action by the Board, the Chairman of the Board.
2.4 Advance Notice Requirements for Stockholder Nominations of
Directors or Stockholder Proposed Business.
2.4.1 Advance Notice of Stockholder Nominations of Directors. Only
persons who are nominated in accordance with the following procedures shall be
eligible for election as directors of the Corporation except as may be otherwise
provided in the Certificate with respect to the right of holders of preferred
shares of the Corporation to nominate and elect a specified number of directors
in certain circumstances.
(a) Annual Meetings of Stockholders. (1) Nominations of persons
for election to the Board of Directors of the corporation may be made at an
annual meeting of stockholders only (i) pursuant to the corporation's notice of
meeting delivered pursuant to Section 2.5 of these By-laws (or any supplement
thereto), (ii) by or at the direction of the Board (or any duly authorized
committee thereof) or the Chairman of the Board or (iii) by any stockholder of
the corporation who was a stockholder of record of the corporation at the time
the notice provided for in this Section 2.5 is delivered to the Secretary of the
corporation, who is entitled to vote at the meeting and who complies with the
notice procedures set forth in subparagraphs (2) and (3) of this paragraph (a)
in this Section 2.4.1.
(2) For nominations to be properly brought before an annual
meeting by a stockholder pursuant to clause (iii) of paragraph (a)(1) of this
Section 2.4.1, the stockholder must have given timely notice thereof in writing
to the Secretary of the corporation. To be timely, a stockholder's notice shall
be delivered to the Secretary at the principal executive offices of the
Corporation not less than sixty (60) nor more than ninety (90) days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided,
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however, that in the event that the annual meeting is called for a date that is
not within thirty (30) days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on which such notice of
the date of the annual meeting was mailed or public disclosure of the date of
the annual meeting was made, whichever first occurs. In no event shall the
public announcement of an adjournment or postponement of an annual meeting of
stockholders commence a new time period (or extend any time period) for the
giving of a stockholder's notice as described above. The stockholder's notice
shall contain, at a minimum, the information set forth in Section 2.4.1(c).
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this Section 2.4.1 to the contrary, in the event that the number of
directors to be elected to the Board of the Corporation at an annual meeting is
increased and there is no public announcement by the Corporation naming all of
the nominees for director or specifying the size of the increased Board at least
one hundred days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section 2.4.1 shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the tenth day following the day on which such public announcement is
first made by the corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been described in
the Corporation's notice of meeting given pursuant to Section 2.5 of these
By-laws. To the extent such business includes the election of directors,
nominations of persons for election to the Board may be made at a special
meeting of stockholders only (i) by or at the direction of the Board (or any
duly authorized committee thereof) or the Chairman of the Board, or (ii) by any
stockholder of the Corporation who is a stockholder of record at the time the
notice provided for in this Section 2.4.1(b) is delivered to the Secretary of
the Corporation, who is entitled to vote at the special meeting and who gives
timely notice in writing by the Secretary of the Corporation. The stockholder's
notice shall contain, at a minimum, the information set forth in Section
2.4.1(c). To be timely, a stockholder's notice shall be delivered to the
Secretary at the principal executive offices of the corporation not later than
the close of business on the tenth 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. In no event shall
the public announcement of an adjournment or postponement of a special meeting
commence a new time period (or extend any time period) for the giving of a
stockholder's notice as described above.
(c) Contents of Stockholder's Notice: Any stockholder's notice
required by this Section 2.4.1 shall set forth as to each person whom the
stockholder proposes to nominate for election or reelection as a director (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation and employment of the person, (iii) the class or series and
number of shares of capital stock of the Corporation which are owned
beneficially or of record by the person and (iv) any other information relating
to the person that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the Securities
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Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations promulgated thereunder. Such stockholder's notice further shall set
forth 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 and of such beneficial owner, as they appear on the
corporation's books (ii) the class and number of shares of capital stock of the
corporation which are owned beneficially and of record by such stockholder and
such beneficial owner, as to the stockholder giving the notice, (iii) a
description of all arrangements or understandings between such stockholder and
each proposed nominee and any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to nominate the person named in its notice, (v) a
representation whether the stockholder or the beneficial owner, if any, intends
or is part of a group which intends to (1) deliver a proxy statement and/or form
of proxy to holders of at least the percentage of the corporation's outstanding
capital stock required to elect the nominee and/or (2) otherwise solicit proxies
from stockholders in support of such nomination, and (vi) any other information
relating to such stockholder that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations
of proxies for election of directors pursuant to Section 14 of the Exchange Act,
and the rules and regulations promulgated thereunder. Such notice must be
accompanied by a written consent of each proposed nominee to being named as a
nominee and to serve as a director if elected. The Corporation may require any
proposed nominee to furnish such other information as it may reasonably require
to determine the eligibility of such proposed nominee to serve as a director of
the Corporation.
(d) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.4.1 shall be eligible to be elected at an
annual or special meeting of stockholders of the corporation to serve as
directors. Except as otherwise provided by law, the chair of the meeting shall
have the power and duty to (i) determine whether a nomination to be brought
before an annual or special meeting was made in accordance with the procedures
set forth in this Section 2.4.1 and (ii) if any proposed nomination is not in
compliance with this Section 2.4.1 (including whether the stockholder or
beneficial owner, if any, on whose behalf the nomination is made solicits (or is
part of a group which solicits), or fails to so solicit (as the case may be),
proxies in support of such stockholder's nominee in compliance with such
stockholder's representation as required by Section (c) of this Section 2.4.1),
to declare that such nomination shall be disregarded.
2.4.2 Advance Notice of Stockholder Proposed Business. No business
shall be transacted at a meeting of stockholders except in accordance with the
following procedures.
(a) Annual Meetings of Stockholders. (1) The proposal of business
to be considered by the stockholders may be made at an annual meeting of
stockholders only (i) pursuant to the corporation's notice of meeting delivered
pursuant to Section 2.5 of these By-laws (or any supplement thereto), (ii) by or
at the direction of the Board (or any duly authorized committee thereof) or
(iii) by any stockholder of the corporation who was a stockholder of record of
the corporation at the time the notice provided for in Section 2.5 is delivered
to the Secretary of the Corporation, who is entitled to vote at the meeting and
who complies with the notice procedures set forth in subparagraphs (2) and (3)
of this paragraph (a) in this Section 2.4.2.
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(2) For business to be properly brought before an annual meeting
by a stockholder pursuant to clause (iii) of paragraph (a)(1) of this Section
2.4.2, the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation and such business must otherwise be a proper matter
for stockholder action as determined by the Board. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive offices of
the Corporation not less than sixty (60) nor more than ninety (90) days prior to
the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth day following the day
on which such notice of the date of the annual meeting was mailed public
disclosure of the date of the annual meeting was made, whichever first occurs.
In no event shall the public announcement of an adjournment or postponement of
an annual meeting of stockholders commence a new time period (or extend any time
period) for the giving of a stockholder's notice as described above. The
stockholder's notice shall contain, at a minimum, the information set forth in
Section 2.4.2(c).
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been described in
the corporation's notice of meeting given pursuant to Section 2.5 of these
By-laws.
(c) Contents of Stockholder's Notice: Any stockholder's notice
required by this Section 2.4.2 shall set forth for each item of business that
the stockholder proposes for consideration (i) a description of the business
desired to be brought before the stockholder meeting, (ii) the text of the
proposal or business (including the text of any resolutions proposed for
consideration and in the event that such business includes a proposal to amend
the By-laws of the corporation, the language of the proposed amendment), (iii)
the reasons for conducting such business at the stockholder meeting, (iv) and
any material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (v) any other
information relating to the stockholder, the beneficial owner, or proposed
business that would be required to be disclosed in a proxy statement or other
filings in connection with solicitations of proxies relating to the proposed
item of business pursuant to Section 14 of the Exchange Act, and the rules and
regulations promulgated thereunder. Such stockholder's notice further shall set
forth as to the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the 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 capital stock of the corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner, (iii) a description of all arrangements or understandings
between such stockholder and any other person or persons (including their names)
pursuant to which the proposals are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to propose the items of business set forth in the notice, (v)
a representation whether the stockholder or the beneficial owner, if any,
intends or is part of a group which intends to (1) deliver a proxy statement
and/or form of proxy to holders of at least the percentage of the corporation's
outstanding capital stock required to approve or adopt the proposal and/or (2)
otherwise solicit proxies from stockholders in support of such proposal, and
(vi) any other information relating to
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such stockholder, beneficial owner, or proposed business that would be required
to be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies in support of such proposal pursuant to
Section 14 of the Exchange Act, and the rules and regulations promulgated
thereunder. The corporation may require the stockholder to furnish such other
information as it may reasonably require to determine whether each proposed item
of business is a proper matter for stockholder action.
(d) Except as otherwise provided by law, the chair of the meeting
shall have the power and duty to (i) determine whether any business proposed to
be brought before an annual or special meeting was proposed in accordance with
the procedures set forth in this Section 2.4.2 and (ii) if any proposed business
is not in compliance with this Section 2.4.2 (including whether the stockholder
or beneficial owner, if any, on whose behalf the proposal is made solicits (or
is part of a group which solicits), or fails to so solicit (as the case may be),
proxies in support of such stockholder's proposal in compliance with such
stockholder's representation as required by Section (c) of this Section 2.4.2),
to declare that such proposed business shall not be transacted.
2.4.3. General. (a) For purposes of this Section 2.4, "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a
document publicly filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(b) Notwithstanding the foregoing provisions of this Section 2.4,
a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 2.4. Nothing in this Section 2.4 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.
2.5 Notice of Meeting and Waiver of Notice.
2.5.1 Notice of Meeting. Except as provided for in Section 2.5.2 of
these By-laws, the Chairman of the Board, the President, any Vice-President, the
Secretary, or the Board shall cause to be delivered to each stockholder entitled
to notice of or to vote at the meeting either personally or by mail, not less
than ten (10) nor more than sixty (60) days before the meeting, written notice
stating the place, day and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called.
2.5.2. Delivery of Notice. If notice is mailed, it shall be deemed
delivered when deposited in the official government mail properly addressed to
the stockholder at his or her address as it appears on the stock transfer books
of the Corporation with postage prepaid. If the notice is telegraphed, it shall
be deemed delivered when the content of the telegram is delivered to the
telegraph company.
2.5.3. Waiver of Notice. (1) Whenever any notice is required to be
given to any stockholder under the provisions of these By-laws, the Certificate,
or Delaware law, a waiver
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thereof in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice.
(2) The attendance of a stockholder at a meeting shall constitute
a waiver of notice of such meeting, except when a stockholder attends a meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened.
2.14. Postponement and Cancellation of Stockholder Meeting. Any
previously scheduled Annual or Special Meeting of the stockholders may be
postponed, and any previously scheduled Annual or Special Meeting of the
stockholders called by the Board may be canceled, by resolution of the Board
upon public notice given prior to the time previously scheduled for such meeting
of stockholders.
2.15. Adjournment of Meetings. Any meeting of stockholders, annual or
special, may be adjourned solely by the chair of the meeting from time to time
to reconvene at the same or some other time, date and place. The stockholders
present at a meeting shall not have authority to adjourn the meeting. Notice
need not be given of any such adjourned meeting if the time, date and place
thereof are announced at the meeting at which the adjournment is taken. If the
time, date and place of the adjourned meeting are not announced at the meeting
at which the adjournment is taken, then the Secretary of the Corporation shall
give written notice of the time, date and place of the adjourned meeting, either
personally or by mail, not less than ten days prior to the date of the adjourned
meeting. Such notice shall be given to each stockholder present at the meeting
at which the adjournment was taken. It is not required that notice be given to
stockholders who were not present at the meeting at which the adjournment was
taken. The provisions of Section 2.5.3 of these By-laws shall govern the
delivery of such notice.
At the adjourned meeting at which a quorum is present, the stockholders
may transact any business which might have been transacted at the original
meeting. Once a share is represented for any purpose at a meeting, it shall be
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for the
adjourned meeting. A new record date must be set if the meeting is adjourned in
a single adjournment to a date more than 120 days after the original date fixed
for the meeting. If after the adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the adjourned meeting consistent with
the new record date.
2.16. Conduct of Meetings. Meetings of stockholders shall be presided
over by the Chairman of the Board or by another chair designated by the Board.
The date and time of the opening and the closing of the polls for each matter
upon which the stockholders will vote at a meeting shall be determined by the
chair of the meeting and announced at the meeting. The Board may adopt by
resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board, the chair of any
meeting of stockholders shall have the exclusive right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chair, are appropriate for the proper conduct of the
meeting.
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Such rules, regulations or procedures, whether adopted by the Board or
prescribed by the chair of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) limitations on attendance at or participation in
the meeting to stockholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as the chair of the meeting shall
determine; (iv) restrictions on entry to the meeting after the time fixed for
the commencement thereof; and (v) limitations on the time allotted to questions
or comments by participants. Unless and to the extent determined by the Board or
the chair of the meeting, meetings of stockholders shall not be required to be
held in accordance with the rules of parliamentary procedure.
2.13 Procedures for Action by Written Consent
2.13.1 Request for Record Date. (a) The record date for determining
stockholders entitled to express consent to corporate action in writing without
a meeting shall be as fixed by the Board or as otherwise established under this
Section 2.13. Any person seeking to have the stockholders authorize or take
corporate action by written consent without a meeting shall, by written notice
addressed to the Secretary and delivered to the corporation and signed by a
stockholder of record, request that a record date be fixed for such purpose. The
written notice shall contain at a minimum the information set forth in Section
2.13.1(b). Following receipt of the notice, the Board shall have ten (10) days
to determine the validity of the request for a record date. Following the
determination of the validity of the request, the Board may fix a record date
for such purpose which shall be no more than 10 days after the date upon which
the resolution fixing the record date is adopted by the Board and shall not
precede the date such resolution is adopted. If the Board fails within 20 days
after the corporation receives such notice to fix a record date for such
purpose, the record date shall be the day on which the first written consent is
delivered to the corporation in the manner described in Section 2.13 below
unless prior action by the Board is required under the General Corporation Law
of Delaware, in which event the record date shall be at the close of business on
the day on which the Board adopts the resolution taking such prior action.
(b) Any stockholder's notice required by this Section 2.13.1 shall
describe the action that the stockholder proposes to take by consent. For each
such proposal, the notice shall set forth (i) the text of the proposal
(including the text of any resolutions to be effected by consent and/or the
language of any proposed amendment to the bylaws of the corporation), (ii) the
reasons for conducting such business by consent, (iii) any material interest in
the proposal held by such stockholder and the beneficial owner, if any, on whose
behalf the action is to be taken, and (iv) any other information relating to the
stockholder, the beneficial owner, or the proposal that would be required to be
disclosed in filings in connection with the solicitation of proxies or consents
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. To the extent the proposed action by consent involves
the election of directors, the notice shall set forth as to each person whom the
stockholder proposes to elect as a director (i) the name, age, business address
and residence address of the person, (ii) the principal occupation and
employment of the person, (iii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of record by
the person and (iv) any other information relating to the person that would be
required to be
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disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies or consents for the election of
directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. In addition to the foregoing, the notice
shall set forth as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the notice is given (i) the name and address of
such stockholder and of such beneficial owner, as they appear on the
corporation's books, (ii) the class and number of shares of capital stock of the
corporation which are owned beneficially and of record by such stockholder and
such beneficial owner, as to the stockholder giving the notice, (iii) a
description of all arrangements or understandings between such stockholder and
any other person or persons regarding the proposed action by consent, (iv) a
representation whether the stockholder or the beneficial owner, if any, intends
or is part of a group which intends to (1) deliver a proxy statement and/or
consent solicitation statement to holders of at least the percentage of the
corporation's outstanding capital stock required to effect the action by consent
either to solicit consents or to solicit proxies to execute consents, and/or (2)
otherwise solicit proxies or consents from stockholders in support of the action
to be taken by consent, and (v) any other information relating to such
stockholder that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies or
consents relating to the proposed action by consent pursuant to Section 14 of
the Exchange Act and the rules and regulations promulgated thereunder. The
Corporation may require the stockholder or record and/or beneficial owner
requesting a record date for proposed stockholder action by consent to furnish
such other information as it may reasonably require to determine the validity of
the request for a record date.
2.13.2 Form of Consent. Every written consent purporting to take or
authorize the taking of corporate action and/or related revocations (each such
written consent and related revocation is referred to in this Section 2.13 as a
"Consent") shall bear the date of signature of each stockholder who signs the
Consent, and no Consent shall be effective to take the corporate action referred
to therein unless, within 60 days of the earliest dated Consent delivered in the
manner required by this Section 2.13.2, Consents signed by a sufficient number
of stockholders to take such action are so delivered to the corporation.
2.13.3 Delivery of Consent. A Consent shall be delivered to the
corporation by delivery to its registered office in the State of Delaware or its
principal place of business. Delivery to the corporation's registered office
shall be made by hand or by certified or registered mail, return receipt
requested.
In the event of the delivery to the corporation of a Consent, the
Secretary of the corporation shall provide for the safe-keeping of such Consent
and shall promptly conduct such ministerial review of the sufficiency of the
Consents and of the validity of the action to be taken by shareholder consent as
the Secretary deems necessary or appropriate, including, without limitation,
whether the holders of a number of shares having the requisite voting power to
authorize or take the action specified in the Consent have given consent;
provided, however, that if the corporate action to which the Consent relates is
the removal or replacement of one or more members of the Board, the Secretary of
the corporation shall promptly designate two persons, who shall not be members
of the Board, to serve as Inspectors with respect to such Consent and such
Inspectors shall discharge the functions of the Secretary of the corporation
under this
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Section 2.13. If after such investigation the Secretary or the Inspectors (as
the case may be) shall determine that the Consent is valid and that the action
therein specified has been validly authorized, that fact shall forthwith be
certified on the records of the corporation kept for the purpose of recording
the proceedings of meetings of stockholders, and the Consent shall be filed in
such records, at which time the Consent shall become effective as stockholder
action. In conducting the investigation required by this Section 2.13, the
Secretary or the Inspectors (as the case may be) may, at the expense of the
corporation, retain special legal counsel and any other necessary or appropriate
professional advisors, and such other personnel as they may deem necessary or
appropriate to assist them, and shall be fully protected in relying in good
faith upon the opinion of such counsel or advisors.
3.5 Meetings by Telephone. Members of the Board, or any committee
designated by the Board, may participate in a meeting of the 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
participation in a meeting pursuant to this subsection shall constitute presence
in person at the meeting.
3.8 Quorum. Subject to the provisions of sub-section 3.13 of this
Section 3, a majority of the total number of Directors fixed by or in the manner
provided in these By-laws shall constitute a quorum for the transaction of
business at any Board meeting but, if less than a majority are present at a
meeting, a majority of the Directors present may adjourn the meeting from time
to time without further notice.
3.14.1 Creation and Authority of Committees. The Board may designate
one or more committees, each committee to consist of one or more of the
directors of the corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of the committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board to act at the meeting in
place of any such absent or disqualified member. Any such committee, to the
extent permitted by law and to the extent provided in the resolution of the
Board, shall have and may exercise all the powers and authority of the Board in
the management of the business and affairs of the corporation, and may authorize
the seal of the corporation to be affixed to all papers which may require it.
