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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 30, 1999
REGISTRATION NO. 000-26068
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2 on
FORM 8-A/A
FOR REGISTRATION OF CERTAIN
CLASSES OF SECURITIES PURSUANT
TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
ACACIA RESEARCH CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 95-4405754
- ------------------------------- -------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
55 South Lake Avenue, Pasadena, California 91101
- ------------------------------------------ ----------------------------------
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the registration If this form relates to
of a class of debt securities and is the registration of a class
effective upon filing pursuant to of debt securities and is
General Instruction A(c)(1) please to become effective
check the following box. / / simultaneously with the
effectiveness of a concurrent
registration statement under
the Securities Act of 1933
pursuant to General Instruction
A(c)(2), please check the
following box. / /
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 Registered
- ------------------------------------ -------------------------------------
- ------------------------------------ -------------------------------------
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock
- -------------------------------------------------------------------------------
(Title of class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
This Amendment No. 2 to Registration Statement on Form 8-A/A amends
and restates the Registration Statement on Form 8-A filed on or about May 11,
1995, as amended by Amendment No. 1 to Form 8-A on Form 8-A/A filed June 5,
1995.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
COMMON STOCK
Our authorized capital stock includes 60,000,000 shares of common
stock, par value $0.001 per share. Holders of our common stock are entitled
to one vote for each share held on all matters submitted to a vote at a
meeting of stockholders and do not have cumulative voting rights.
Accordingly, holders of a majority of the shares of our common stock may
elect all of the directors standing for election. Holders of our common stock
are entitled to receive ratably any dividends declared by our Board of
Directors. Upon our liquidation, dissolution or winding-up, holders of our
common stock are entitled to receive ratably our net assets available for
distribution after the payment of all debts and other liabilities, subject to
any prior rights of any outstanding preferred stock. Holders of our common
stock have no preemptive, subscription, redemption or conversion rights. The
outstanding shares of our common stock are fully paid and nonassessable.
DELAWARE LAW AND CERTAIN CHARTER AND BYLAW PROVISIONS
We are subject to the provisions of Section 203 of the General
Corporation Law of Delaware. Section 203 prohibits a publicly-held Delaware
corporation from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless the business
combination is approved in a prescribed manner. A "business combination"
includes mergers, asset sales and other transactions resulting in a financial
benefit to the interested stockholder. Subject to certain exceptions, an
"interested stockholder" is a person who, together with affiliates and
associates, owns, or within three years did own, 15% or more of the
corporation's voting stock.
Our Certificate of Incorporation and our Bylaws contain various
provisions which could have the effect of making it more difficult for a
third party to acquire, or of discouraging a third party from acquiring,
control of us.
For example, our Certificate of Incorporation contains provisions
that state the following:
- our Board of Directors may issue, without any action on the
part of our stockholders, up to 20,000,000 shares of
"blank-check" Preferred Stock, par value $0.001 per share, and
determine the rights, preferences, privileges, dividends,
voting and other rights of each series of Preferred Stock;
- our Board of Directors may amend in any manner our Bylaws and,
subject to certain exceptions, our stockholders may only amend
our Bylaws by an affirmative vote of the holders of at least
two-thirds of the outstanding shares of our common stock; and
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- newly created directorships and any vacancy on our Board of
Directors will be filled solely by the affirmative vote of a
majority of the remaining directors then in office.
In addition, our Bylaws contain provisions that state the following:
- special meetings of stockholders may be called at any time by
the Board of Directors, the Chairman of the Board or the
President and may not be called by any other person or
persons; and
- all duly submitted stockholder proposals, including
nominations for the election of a director, must be delivered
to us no less than 90 days nor more than 120 days prior to the
first anniversary of the preceding year's annual meeting.
ITEM 2. EXHIBITS.
The following exhibits are filed as part of this report:
<TABLE>
<CAPTION>
Exhibit
Numbers Description of Document
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<S> <C>
1 Specimen Common Stock Certificate.
2 Certificate of Incorporation.
3 Bylaws.
</TABLE>
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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.
ACACIA RESEARCH CORPORATION
By: /s/ Paul R. Ryan
------------------------------------------
Paul R. Ryan
President and Chief Executive Officer
Dated: December 30, 1999
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EXHIBIT 1
ACACIA RESEARCH CORPORATION
[SEAL] [SEAL]
NUMBER SHARES
INCORPORATED UNDER THE LAWS SEE REVERSE FOR STATEMENTS RELATING
OF THE STATE OF DELAWARE TO RIGHTS, PREFERENCES,
PRIVILEGES AND RESTRICTIONS, IF ANY
CUSIP OO3881 10 9
THIS CERTIFIES THAT
IS THE RECORD HOLDER OF SHARES
FULLY PAID AND NONASSESSABLE SHARES OF COMMON STOCK, $0.001 PAR VALUE, OF
ACACIA RESEARCH CORPORATION
transferable only on the books of the Corporation by the holder hereof in
person or by duly authorized Attorney upon surrender of this certificate
property endorsed. This certificate is not valid until countersigned by the
Transfer Agent and registered by the Register.
WITNESS the facsimile seal of the Corporation and the facsimile signatures
of its duty authorized officers.
DATED
[SIGNATURE] [SEAL] [SIGNATURE]
CORPORATE SECRETARY PRESIDENT
COUNTERSIGNED AND REGISTERED:
U.S. STOCK TRANSFER CORPORATION
TRANSFER AGENT AND REGISTRAR
BY [SIGNATURE]
AUTHORIZED SIGNATURE
<PAGE>
The corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof of
the corporation, and the qualifications, limitations or restrictions of such
preferences and/or rights. Such request may be made to the corporation or the
transfer agent.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, OR
DESTROYED THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION OF
THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT -__________Custodian____________
(Cust) (Minor)
under Uniform Gifts to Minors Act
__________________________________
(State)
UNIF TRF MIN ACT -__________Custodian (until age____)
(Cust)
__________, under Uniform Transfers
(Minor)
to Minors Act______________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED,__________________hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
____________________________________
| |
| |
|____________________________________|
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
__________________________________________________________________________Shares
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
________________________________________________________________________Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated_____________________________
X___________________________________________
X___________________________________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) AS WRITTEN UPON
THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed
By______________________________________________
THE SIGNATURE(S) MUST BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION/BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND
CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAMS, PURSUANT
TO S.E.C. RULE 1794-15.
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EXHIBIT 2
CERTIFICATE OF INCORPORATION
OF
ACACIA RESEARCH CORPORATION
I, the undersigned, for purpose of incorporating and organizing a
corporation under the General Corporation Law of Delaware, do execute this
Certificate of Incorporation and do hereby certify as follows:
ARTICLE I
The name of the Corporation is Acacia Research Corporation (the
"Corporation").
ARTICLE II
A. The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
B. The name and mailing address of the incorporator is Alice Y. Ohashi,
O'Melveny & Myers LLP, 1999 Avenue of the Stars, Suite 700, Los Angeles,
California 90067.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
A. The total number of shares of all classes that this Corporation shall
have the authority to issue shall be 80,000,000, which shall be divided into two
classes, one to be designated "Common Stock," which shall consist of 60,000,000
authorized shares, $0.001 par value per share, and a second class to be
designated as "Preferred Stock," which shall consist of 20,000,000 authorized
shares, $0.001 par value per share.
B. The Preferred Stock may be issued in one or more series, from time to
time, each series to be appropriately designated by a distinguishing number,
letter or title, prior to the issue of any shares thereof.
C. Each series of Preferred Stock shall consist of such number of shares
and have such voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, as shall be
stated in the resolution or resolutions providing for the issuance of such
series adopted by the Board of Directors of the Corporation (the "Board of
Directors"), and the Board of Directors is hereby expressly vested with
authority, to the full extent now or hereafter provided by law, to adopt any
such resolution or resolutions.
The authority of the Board of Directors with respect to each series shall
include, but not be limited to, determination of the following:
(i) the number of shares constituting that series and the distinctive
designation of that series;
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(ii) the dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that
series;
(iii) whether that series shall have voting rights, in addition to the
voting rights provided by law, and if so, the terms of such voting rights;
(iv) whether that series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors
shall determine;
(v) whether the shares of that series shall be redeemable, and, if so,
the terms and conditions of such redemption, including the date or date upon
or after which they shall be redeemable, and the amount per share payable in
case of redemption, which amount may vary under different conditions and at
different redemption dates;
(vi) whether the series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of such
sinking fund;
(vii) the rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation,
and the relative rights of priority, if any, of payment of shares of that
series; and
(viii) any other relative rights, preferences and limitations of that
series.
ARTICLE V
In furtherance and not in limitation of the powers conferred by the laws of
the State of Delaware, the Board of Directors is expressly authorized to adopt,
alter, amend and repeal the Bylaws of the Corporation, subject to the power of
the stockholders of the Corporation to alter or repeal any bylaw whether adopted
by them or otherwise; provided, however, that the affirmative vote of 66 and 2/3
percent of the voting power of the capital stock of the Corporation entitled to
vote thereon shall be required for stockholders to adopt, amend, alter or repeal
any provision of the Bylaws of the Corporation.
ARTICLE VI
The number of directors of the Corporation shall be fixed from time to time
by a Bylaw of the Corporation or amendment thereof duly adopted by the Board of
Directors.
ARTICLE VII
Unless and except to the extent that the Bylaws of the Corporation shall so
require, election of directors need not be by written ballot.
ARTICLE VIII
A. Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws of the Corporation may provide. The books of the
Corporation may be kept (subject to any provision contained in the laws of the
State of Delaware) outside of 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 Bylaws
of the Corporation.
B. No action that is required or permitted to be taken by the stockholders
of the Corporation at any annual or special meeting of stockholders may be
effected by written consent of the stockholders in lieu of a meeting of
stockholders.
C. Special meetings of stockholders may be called only by the Board of
Directors, the Chairman of the Board of Directors, or the President, and may not
be called by any other person or persons.
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ARTICLE IX
A director of the Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent such exemption from liability or limitation thereof is not
permitted under the General Corporation Law of Delaware as the same exists or
may hereafter be amended. If the General Corporation Law of Delaware is amended
after the date of the filing of this Certificate of Incorporation to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the General Corporation
Law of Delaware as so amended. Any repeal or modification of this Article by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time, or increase
the liability of any director of the Corporation with respect to any acts or
omissions of such director occurring prior to, such repeal or modification.
ARTICLE X
The Corporation may indemnify to the fullest extent permitted by law any
person made or threatened to be made a party to an action or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact that
such person, his or her testator or intestate is or was a director, officer or
employee of the Corporation or any predecessor of the Corporation or serves or
served at any other enterprise as a director, officer or employee at the request
of the Corporation or any predecessor to the Corporation. No repeal or
modification of this Article by the stockholders shall adversely affect any
right or protection of a director of the Corporation existing by virtue of this
Article at the time of such repeal or modification.
ARTICLE XII
The Corporation hereby reserves the right at any time and from time to time
to amend, alter, change, or repeal any provisions contained in this Certificate
of Incorporation, and other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted, in the manner now or
hereafter prescribed by law, and all rights, preferences, and privileges of
whatsoever nature conferred upon stockholders, directors, or any other persons
whomsoever by or pursuant to this Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the right reserved in this
Article.
IN WITNESS WHEREOF, the undersigned Incorporator hereby acknowledges that
the foregoing Certificate of Incorporation is her act and deed on this 8th day
of October, 1999.
/s/ ALICE Y. OHASHI
--------------------------------------
Alice Y. Ohashi,
INCORPORATOR
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EXHIBIT 3
BYLAWS OF
ACACIA RESEARCH CORPORATION
(a Delaware corporation)
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
ARTICLE 1. OFFICES......................................... 1
ARTICLE 2. MEETINGS OF STOCKHOLDERS........................ 1
Annual meeting............................................ 1
Special meetings.......................................... 1
Business which may be conducted........................... 2
Notice.................................................... 3
Quorum and adornment...................................... 4
Voting.................................................... 4
Proxies................................................... 6
Inspectors of election.................................... 6
Conduct of meeting........................................ 7
Conduct of absentees...................................... 7
ARTICLE 3. DIRECTORS....................................... 8
Powers.................................................... 8
Number of directors....................................... 8
Election and term of office............................... 8
Resignations and vacancies................................ 9
Meetings of the board of directors........................ 9
Quorum.................................................... 10
Participation by conference telephone..................... 10
Waiver of notice.......................................... 10
Adjournment............................................... 10
Fees and compensation..................................... 10
Action without meeting.................................... 10
Committees................................................ 11
ARTICLE 4. OFFICERS........................................ 12
Officers.................................................. 12
Election.................................................. 12
Subordinate officers...................................... 12
Removal and resignation................................... 12
Vacancies................................................. 12
The chairman of the board................................. 12
The president and vice-presidents......................... 13
The secretary and assistant secretary..................... 13
The treasurer and assistant treasurer..................... 13
ARTICLE 5. CERTIFICATE OF STOCK............................ 14
Lost certificates......................................... 14
Transfer of stock......................................... 15
Fixing record date........................................ 15
Registered stockholders................................... 15
ARTICLE 6. GENERAL PROVISIONS.............................. 15
Maintenance and inspection of records..................... 15
Annual report to stockholders............................. 16
Checks; drafts; evidence of indebtedness.................. 16
Endorsement of documents; contracts....................... 16
</TABLE>
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<TABLE>
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PAGE
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<S> <C>
Representation of shares of other corporations............ 16
Stock purchase plans...................................... 17
Construction and definitions.............................. 17
Amendments................................................ 17
Fiscal year............................................... 17
Dividends................................................. 17
Loans to officers and employees........................... 18
ARTICLE 7. INDEMNIFICATION................................. 18
Right to indemnification.................................. 18
Prepayment of expenses.................................... 18
Claims.................................................... 18
Nonexclusivity of rights.................................. 19
Other sources............................................. 19
Amendment or repeal....................................... 19
Other indemnification and prepayment of expenses.......... 19
Insurance................................................. 19
Indemnity agreements...................................... 19
</TABLE>
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BYLAWS OF
ACACIA RESEARCH CORPORATION
(A DELAWARE CORPORATION)
ARTICLE 1. OFFICES
1.1 The registered office shall be in the City of Wilmington, County of New
Castle, State of Delaware.
1.2 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 2. MEETINGS OF STOCKHOLDERS
2.1 All meetings of the stockholders shall be held at such place, within or
without the State of Delaware, as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
2.2 The Secretary shall prepare and make, at least 10 days before every meeting
of stockholders, a complete list of stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
10 days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
ANNUAL MEETINGS
2.3 Annual meetings of stockholders shall be held at such date and time as
shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting, at which they shall elect directors and transact such
other business as may properly be brought before the meeting. At an annual
meeting of the stockholders, only such business shall be conducted as shall have
been properly brought before the meeting.
SPECIAL MEETINGS
2.4 Special meetings of the stockholders may be called only by the Board of
Directors, the Chairman of the Board or the President and may not be called by
any other person or persons. Upon such written request to the Secretary by any
person or persons (other than the Board of Directors) entitled to call a special
meeting of the stockholders, the Secretary shall cause notice to be given to the
stockholders entitled to vote that a meeting will be held at a time requested by
the person or persons calling the meeting, not less than 35 days nor more than
60 days after the receipt of the request. If notice of a special meeting of the
stockholders is not given within 20 days after the Secretary's receipt of the
request, the person or persons entitled to call the meeting may give the notice.
Subject to the provisions of applicable law, only such business shall be
considered at a special meeting of the stockholders as shall have been stated in
the notice for such meeting.
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BUSINESS WHICH MAY BE CONDUCTED
2.5 Annual Meetings of the Stockholders.
2.5.1 Nominations of persons for election to the Board of Directors and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of the stockholders only (A) pursuant to the corporation's
notice of meeting (or any supplement thereto), (B) by or at the direction of
the Board of Directors or (C) by any stockholder of the corporation who was
a stockholder of record of the corporation at the time the notice provided
for in this Section is delivered to the Secretary, who is entitled to vote
at the meeting and who complies with the notice procedures set forth in this
Section.
2.5.2 For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (C) of subsection 2.5.1,
the stockholder must have given timely notice thereof in writing to the
Secretary and any such proposed business other than the nominations of
persons for election to the Board of Directors must constitute a proper
matter for stockholder action. 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 90th day nor earlier
than the close of business on the 120th day prior to the first anniversary
of the preceding year's annual meeting (provided, however, that in the event
that the date of the annual meeting is more than 30 days before or more than
70 days after such anniversary date, notice by the stockholder must be so
delivered not earlier than the close of business on the 120th day prior to
such annual meeting and not later than the close of business on the later of
the 90th day prior to such annual meeting or the 10th day following the day
on which public announcement of the date of such meeting is first made by
the corporation). In no event shall the public announcement of an
adjournment or postponement of an annual meeting commence a new time period
(or extend any time period) for the giving of a stockholder's notice as
described above. Such stockholder's notice shall set forth: (A) as to each
person whom the stockholder proposes to nominate for election as a director
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and Rule
14a-11 thereunder (and such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected); (B)
as to any other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought before
the meeting, 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 Bylaws of the corporation, the language of
the proposed amendment), the reasons for conducting such business at the
meeting and any material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal is made; and
(C) as to the stockholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination or proposal is made (1) the name and
address of such stockholder, as they appear on the corporation's books, and
of such beneficial owner, (2) 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, (3) a representation that the
stockholder is a holder of record of stock of the corporation entitled to
vote at such meeting and intends to appear in person or by proxy at such
meeting to propose such business or nomination, and (4) a representation
whether the stockholder or beneficial owner, if any, intends or is part of a
group which intends (x) to 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 or elect the nominee and/or
(y) otherwise to solicit proxies from stockholders in support of such
proposal or nomination. The corporation may require any proposed nominee to
furnish such other information
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as it may reasonably require to determine the eligibility of such proposed
nominee to serve as a director of the corporation.
2.5.3 Notwithstanding anything in the second sentence of subsection 2.5.2
to the contrary, in the event that the number of directors to be elected to
the Board of Directors at the annual meeting is increased and there is no
public announcement by the corporation naming the nominees for the
additional directorships at least 100 days prior to the first anniversary of
the preceding year's annual meeting, a stockholder's notice required by this
Section shall also be considered timely, but only with respect to nominees
for the additional directorships, if it shall be delivered to the Secretary
of the corporation at the principal executive offices of the corporation not
later than the close of business on the 10th day following the day on which
such public announcement is first made by the corporation.
2.6 Special Meetings of the Stockholders. Only such business shall be conducted
at a special meeting of the stockholders as shall have been brought before the
meeting pursuant to the corporation's notice of meeting. Nominations of persons
for election to the Board of Directors may be made at a special meeting of the
stockholders at which directors are to be elected pursuant to the corporation's
notice of meeting only by or at the direction of the Board of Directors.
2.7 General.
2.7.1 Only persons who are nominated in accordance with the procedures set
forth in this Section shall be eligible to be elected at an annual or
special meeting of the stockholders of the corporation to serve as directors
and only such business shall be conducted at a meeting of the stockholders
as shall have been brought before the meeting in accordance with the
procedures set forth in this Section. Except as otherwise provided by law,
the President, as chairman of the meeting, shall have the power and duty
(A) to determine whether a nomination or any business proposed to be brought
before the meeting was made or proposed, as the case may be, in accordance
with the procedures set forth in this Section (including whether the
stockholder or beneficial owner, if any, on whose behalf the nomination or
proposal is made or solicited (or is part of a group which solicited) or did
not so solicit, as the case may be, proxies in support of such stockholder's
nominee or proposal in compliance with such stockholder's representation as
required by this Section) and (B) if any proposed nomination or business was
not made or proposed in compliance with the Section, to declare that such
nomination shall be disregarded or that such proposed business shall not be
transacted.
2.7.2 For purposes of this Section, "PUBLIC ANNOUNCEMENT" shall include
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.
2.7.3 Notwithstanding the foregoing provisions of this Section, 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. Nothing in this Section shall be deemed
to affect any rights (A) of stockholders to request inclusion of proposals
in the corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (B) of the holders of any series of Preferred Stock to elect
directors pursuant to any applicable provisions of the Certificate of
Incorporation.
NOTICE
2.8 Written notice of each annual or special meeting shall be given not fewer
than 10 days nor more than 60 days before the date of the meeting, to each
stockholder entitled to vote at such meeting. Such notice shall state the place,
date and hour of the meeting and (i) in the case of the annual meeting,
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those matters that the Board of Directors, at the time of the mailing of the
notice, intends to present for action by the stockholders, and, subject to the
provisions of applicable law, any other matters properly brought may be
presented at the meeting for action, or (ii) in the case of a special meeting,
the purpose or purposes for which the meeting was called, but, subject to the
provisions of applicable law, no other business may be presented at the special
meeting for action. The notice of any meeting at which directors are to be
elected shall include the names of nominees intended at the time of the notice
to be presented by the Board of Directors for election.
2.9 Notice of a stockholders' meeting shall be given by mail or by other means
of written communication, addressed to the stockholder at the address of such
stockholder appearing on the books of the corporation or given by the
stockholder to the corporation for the purpose of notice. Notice by mail shall
be deemed to have been given at the time a written notice is deposited in the
United States mail, postage prepaid. Any other written notice shall be deemed to
have been given at the time it is personally delivered to the recipient or is
delivered to a common carrier for transmission, or actually transmitted by the
person giving the notice by electronic means, to the recipient.
QUORUM AND ADJOURNMENT
2.10 Except as otherwise provided by law, the Certificate of Incorporation or
these Bylaws, at each meeting of stockholders the presence in person or by proxy
of the holders of a majority in voting power of the outstanding shares of stock
entitled to vote at the meeting shall be necessary and sufficient to constitute
a quorum. In the absence of a quorum, the stockholders so present may, by a
majority in voting power thereof, adjourn the meeting from time to time in the
manner provided in Section 2.11 until a quorum shall attend.
2.11 Any meeting of stockholders, annual or special, may adjourn from time to
time to reconvene at the same or some other place, and notice need not be given
of any such adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting the
corporation may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than 30 days, or 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 meeting.
VOTING
2.12 The stockholders entitled to notice of any meeting or to vote at any such
meeting shall be only persons in whose name shares stand on the stock records of
the corporation on the record date determined in accordance with Section 5.7.
2.13 Voting at meetings of stockholders need not be by written ballot. At all
meetings of stockholders for the election of directors, a plurality of the votes
cast shall be sufficient to elect. All other elections and questions shall,
unless otherwise provided by the Certificate of Incorporation, these Bylaws, the
rules or regulations of any stock exchange applicable to the corporation or as
otherwise provided by law or pursuant to any regulation applicable to the
corporation, be decided by the affirmative vote of the holders of a majority in
voting power of the shares of stock of the corporation which are present in
person or by proxy and entitled to vote thereon.
2.14 Voting shall in all cases be subject to the provisions to the following
provisions:
2.14.1 The stockholders of the corporation shall not have the right to
cumulate their votes for the election of directors of the corporation.
2.14.2 Shares held by an administrator, executor, guardian, conservator or
custodian may be voted by such holder either in person or by proxy, without
a transfer of such shares into the holder's
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name; and shares standing in the name of a trust may be voted by the trustee
of such trust, either in person or by proxy, but no trustee shall be
entitled to vote shares held by such trust without a transfer of such shares
into the trust's name.
2.14.3 Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted
by such receiver without the transfer thereof into the receiver's name if
authority to do so is contained in the order of the court by which such
receiver was appointed.
2.14.4 Except where otherwise agreed in writing between the parties, a
stockholder whose shares are pledged shall be entitled to vote such shares
until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
2.14.5 Shares standing in the name of a minor may be voted and the
corporation may treat all rights incident thereto as exercisable by the
minor, in person or by proxy, whether or not the corporation has notice,
actual or constructive, of the minor's actual age, unless a guardian of the
minor's property has been appointed and written notice of such appointment
given to the corporation.
2.14.6 Shares standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent or proxyholder of such other
corporation as the bylaws of such other corporation may prescribe or, in the
absence of such provision, as the board of directors of such other
corporation may determine or, in the absence of such determination, by the
chairman of the board, president or any vice president of such other
corporation, or by any other person authorized to do so by the chairman of
the board, president or any vice president of such other corporation. Shares
which are purported to be voted or any proxy purported to be executed in the
name of a corporation (whether or not any title of the person signing is
indicated) shall be presumed to be voted or the proxy executed in accordance
with the provisions of this clause, unless the contrary is shown.
2.14.7 Shares of the corporation owned by its subsidiaries shall not be
entitled to vote on any matter.
2.14.8 If shares stand of record in the names of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in
common, husband and wife as community property, tenants by the entirety,
voting trustees, persons entitled to vote under a stockholder voting
agreement or otherwise, or if two or more persons (including proxyholders)
have the same fiduciary relationship respecting the same shares, unless the
Secretary is given written notice to the contrary and is furnished with a
copy of the instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting shall have the
following effect:
(a) If only one votes, such act binds all;
(b) If more than one vote, the act of the majority so voting binds all; or
(c) If more than one vote, but the vote is evenly split on any particular
matter, each faction may vote the securities in question
proportionately.
If the instrument so filed or the registration of the shares shows that any such
tenancy is held in unequal interests, a majority or even split for the purpose
of this Section shall be a majority or even split in interest.
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PROXIES
2.15 Each stockholder entitled to vote at a meeting of the stockholders may
authorize another person or persons to act for such stockholder by proxy, but no
such proxy shall be voted or acted upon after three years from its date, unless
the proxy provides for a longer period. A proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by filing an instrument in writing revoking the proxy or by delivering
a proxy in accordance with applicable law bearing a later date to the Secretary.
2.16 A proxy or consent validly delivered to the corporation shall mean any
written authorization which is signed by the person executing the proxy, as well
as any electronic transmission (to include without limitation transmissions by
facsimile and by computer messaging systems), which is authorized by a
stockholder or the stockholder's attorney in fact, which gives another person or
persons power to vote with respect to the shares of such stockholder. A
stockholder may authorize another person or persons to act for such stockholder
as proxy by transmitting or authorizing the transmission of a telegram,
cablegram, or other means of electronic transmission to the person who will be
the holder of the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be the holder
of the proxy to receive such transmission, provided that any such telegram,
cablegram or other means of electronic transmission must either set forth or be
submitted with information from which it can be determined that the telegram,
cablegram or other electronic transmission was authorized by the stockholder. If
it is determined that such telegrams, cablegrams or other electronic
transmissions are valid, the inspectors of election or, if there are no
inspectors, such other persons making that determination shall specify the
information upon which they relied. Any copy, facsimile telecommunication or
other reliable reproduction of the writing or transmission created pursuant to
this Section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
INSPECTORS OF ELECTION
2.17 In advance of any meeting of stockholders, the Board of Directors shall
appoint inspectors of election to act at such meeting and any adjournment
thereof. If inspectors of election are not so appointed, or if any persons so
appointed fail to appear or refuse to act, the chairman of any such meeting may,
and on the request of any stockholder or stockholder's proxy shall, make such
appointment at the meeting. The number of inspectors shall be either one or
three. If appointed at a meeting on the request of one or more stockholders or
proxies, the majority of shares present shall determine whether one or three
inspectors are to be appointed.
2.18 The duties of such inspectors shall include: determining the number of
shares outstanding and the voting power of each; determining the shares
represented at the meeting; determining the existence of a quorum; determining
the authenticity, validity and effect of proxies; receiving votes, ballots or
consents; hearing and determining all challenges and questions in any way
arising in connection with the right to vote; counting and tabulating all votes
or consents; determining when the polls shall close; determining the result; and
doing such acts as may be proper to conduct the election or vote with fairness
to all stockholders. If there are three inspectors of election, the decision,
act or certificate of a majority is effective in all respects as the decision,
act or certificate of all.
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CONDUCT OF MEETING
2.19 The President shall preside as chairman at all meetings of the
stockholders. The chairman shall conduct each such meeting in a businesslike and
fair manner, but shall not be obligated to follow any technical, formal or
parliamentary rules or principles of procedure. The chairman's rulings on
procedural matters shall be conclusive and binding on all stockholders, unless
at the time of a ruling a request for a vote is made to the stockholders holding
shares entitled to vote and which are represented in person or by proxy at the
meeting, in which case the decision of a majority of such shares shall be
conclusive and binding on all stockholders. Without limiting the generality of
the foregoing, the chairman shall have all of the powers usually vested in the
chairman of a meeting of stockholders.
CONSENT OF ABSENTEES
2.20 The transactions of any meeting of stockholders, however called and
noticed, and wherever held, are as valid as though conducted at a meeting duly
held after regular call and notice, if a quorum is present either in person or
by proxy, and if, either before or after the meeting, each of the persons
entitled to vote, not present in person or by proxy, signs a written waiver of
notice, or a consent to the holding of the meeting or an approval of the minutes
thereof. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting. Attendance of a
person at a meeting shall constitute a waiver of notice of and presence at such
meeting, except when the person objects, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened and except that attendance at a meeting is not a waiver of any right to
object to the consideration of matters required by the General Corporation Law
of Delaware to be included in the notice but not so included, if such objection
is expressly made at the meeting. Neither the business to be transacted at nor
the purpose of any regular or special meeting of stockholders need be specified
in any written waiver of notice, consent to the holding of the meeting or
approval of the minutes thereof, except as provided in the General Corporation
Law of Delaware.
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ARTICLE 3. DIRECTORS
POWERS
3.1 Subject to limitations of the Certificate of Incorporation, of these Bylaws
and of the General Corporation Law of Delaware relating to action required to be
approved by the stockholders or by the outstanding shares, the business and
affairs of the corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the Board of Directors and it shall have
the final authority in matters of strategy and policy matters for the
corporation.
The Board of Directors may delegate management duties for the operation of
the business to those persons to whom authority is properly delegated by the
Board of Directors, including officers of the corporation, provided that the
business and affairs of the corporation shall be managed and all corporate
powers shall be exercised under the ultimate direction of the Board of
Directors. Without prejudice to such general powers, but subject to the same
limitations, it is hereby expressly declared that the Board of Directors shall
have the following powers in addition to the other powers enumerated in these
Bylaws:
(A) To select and remove all officers (in accordance with the provisions of
these Bylaws), agents and employees of the corporation; prescribe the
powers and duties for them as may not be inconsistent with law, the
Certificate of Incorporation or these Bylaws; fix their compensation and
require from them an affidavit providing for the good faith exercise of
their duties only in the best interests of the corporation.
(B) To conduct, manage and control the affairs and business of the
corporation and to make such rules and regulations therefor not
inconsistent with law, the Certificate of Incorporation or these Bylaws,
as they may deem best.
(C) To adopt, make and use a corporate seal, and to prescribe the forms of
certificates of stock, and to alter the form of such seal and of such
certificates from time to time as they may deem best.
(D) To authorize the issuance of shares of stock of the corporation from time
to time, upon such terms and for such consideration as may be lawful.
(E) To borrow money and incur indebtedness for the purposes of the
corporation, and to cause to be executed and delivered, in the corporate
name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations or other evidences of debt and securities
therefor.
(F) To make, repeal, alter, amend and rescind any or all of these Bylaws.
NUMBER OF DIRECTORS
3.2 The authorized number of directors of the corporation shall be not less
than five nor more than nine. Within such limits, the Board of Directors may fix
the exact number of directors by resolution duly adopted by the Board of
Directors. Initially, the exact number of directors shall be five. No reduction
of the authorized number of directors shall have the effect of removing any
director prior to the expiration of the director's term of office.
ELECTION AND TERM OF OFFICE
3.3 Only persons who are nominated by, or at the direction of the Board of
Directors or the Chairman of the Board, or by a stockholder who has given timely
written notice to the Secretary in accordance with these Bylaws, will be
eligible for election as directors of the corporation.
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3.4 For a person to be qualified to serve as a director of the corporation,
such person need not be an employee or stockholder of the corporation during his
or her directorship.
3.5 The directors shall be elected at each annual meeting of the stockholders,
but if any such annual meeting is not held or the directors are not elected
thereat, the directors may be elected at any special meeting of stockholders
held for that purpose. Each director shall hold office until the next annual
meeting and until a successor has been elected and qualified or until his or her
earlier death, resignation, or removal.
RESIGNATIONS AND VACANCIES
3.6 Any director may resign effective upon giving written notice to the
Chairman of the Board, the President, the Secretary or the Board of Directors,
unless the notice specifies a later time for the effectiveness of such
resignation. If the resignation is effective at a future time, a successor may
be elected to take office when the resignation becomes effective.
Any newly-created directorship resulting from an increase in the authorized
number of directors or any vacancies in the Board of Directors occurring by
reason of death, resignation, retirement, disqualification or removal may be
filled by a majority of the remaining directors, though less than a quorum, or
by a sole remaining director, and each director so elected shall hold office
until the next annual meeting and until such director's successor has been
elected and qualified.
A vacancy or vacancies in the Board of Directors shall be deemed to exist in
case of the death, resignation or removal of any director, or if the authorized
number of directors is increased, or if the stockholders fail, at any annual or
special meeting of the stockholders at which any director or directors are
elected, to elect the full authorized number of directors to be voted for at
that meeting.
MEETINGS OF THE BOARD OF DIRECTORS
3.7 Regular or special meetings of the Board of Directors shall be held at any
place within or without the State of Delaware which has been designated from
time to time by the Board of Directors. In the absence of such designation,
regular meetings shall be held at the principal executive office of the
corporation.
3.8 Following each annual meeting of stockholders, the Board of Directors shall
hold a regular meeting for the purpose of organization, election of officers and
the transaction of other business. Other regular meetings of the Board of
Directors shall be held without call on such dates and at such times as may be
fixed by the Board of Directors. Call and notice of all regular meetings of the
Board of Directors are hereby dispensed with.
3.9 Special meetings of the Board of Directors for any purpose or purposes may
be called at any time by the Chairman of the Board, the President, the Secretary
or by any two directors.
Special meetings of the Board of Directors shall be held upon four days'
written notice or 48 hours' notice given personally or by telephone, including a
voice messaging system or other system or technology designed to record and
communicate messages, telegraph, telex, facsimile electronic mail or other
similar means of communication. Any such notice shall be addressed or delivered
to each director at such director's address as it is shown upon the records of
the corporation or as may have been given to the corporation by the director for
purposes of notice or, if such address is not shown on such records or is not
readily ascertainable, at the place in which the meetings of the directors are
regularly held.
Notice by mail shall be deemed to have been given at the time a written
notice is deposited in the United States mail, first-class postage prepaid. Any
other written notice shall be deemed to have been
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given at the time it is personally delivered to the recipient or is delivered to
a common carrier for transmission, or actually transmitted by the person giving
the notice by electronic means, to the recipient. Oral notice shall be deemed to
have been given at the time it is communicated, in person or by telephone or
wireless, to the recipient or to a person at the office of the recipient who the
person giving the notice has reason to believe will promptly communicate it to
the recipient.
QUORUM
3.10 A majority of the whole Board of Directors constitutes a quorum of the
Board of Directors for the transaction of business, except to adjourn as
provided below in this Article. Every act or decision done or made by a majority
of the directors present at a meeting duly held at which a quorum is present
shall be regarded as the act of the Board of Directors, unless a greater number
be required by law or by the Certificate of Incorporation. A meeting at which a
quorum is initially present may continue to transact business notwithstanding
the withdrawal of directors, if any action taken is approved by at least a
majority of the required quorum for such meeting.
PARTICIPATION BY CONFERENCE TELEPHONE
3.11 Any meeting, regular or special, may be held by conference telephone or
similar communication equipment, so long as all directors participating in the
meeting can hear one another and all such directors shall be deemed to be
present in person at the meeting.
WAIVER OF NOTICE
3.12 Notice of a meeting need not be given to any director who signs a waiver
of notice or a consent to holding the meeting or an approval of the minutes
thereof, whether before or after the meeting, or who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to such
director. All such waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
ADJOURNMENT
3.13 A majority of the directors present, whether or not a quorum is present,
may adjourn any directors' meeting to another time and place. Notice of the time
and place of holding an adjourned meeting need not be given to absent directors
if the time and place be fixed at the meeting adjourned, except as provided in
the next sentence. If the meeting is adjourned for more than 24 hours, notice of
any adjournment to another time or place shall be given prior to the time of the
adjourned meeting to the directors who were not present at the time of the
adjournment.
FEES AND COMPENSATION
3.14 Directors and members of committees may receive such compensation, if any,
for their services, and such reimbursement for expenses, as may be fixed or
determined by the Board of Directors.
ACTION WITHOUT MEETING
3.15 Any action required or permitted to be taken by the Board of Directors may
be taken without a meeting if all members of the Board of Directors shall
consent in writing to such action. Such consent or consents shall have the same
effect as a unanimous vote of the Board of Directors and shall be filed with the
minutes of the proceedings of the Board of Directors.
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COMMITTEES
3.16 The Board of Directors may appoint one or more committees, each consisting
of one or more directors, and delegate to such committees any of the powers and
authority of the Board of Directors, except no such committee shall have power
or authority in reference to the following:
(A) Approving, adopting or recommending to the stockholders any action or
matter expressly required by the General Corporation Law of Delaware to
be submitted to the stockholders for approval; or
(B) Adopting, altering, amending or repealing these Bylaws or any of them.
Any such committee must be designated, and the members or alternate members
thereof appointed, by resolution adopted by a majority of the authorized number
of directors and any such committee may be designated an Executive Committee or
by such other name as the Board of Directors shall specify. Alternate members of
a committee may replace any absent member at any meeting of the committee. The
Board of Directors shall have the power to prescribe the manner in which
proceedings of any such committee shall be conducted. In the absence of any such
prescription, such committee shall have the power to prescribe the manner in
which its proceedings shall be conducted. Unless the Board of Directors or such
committee shall otherwise provide, the regular and special meetings and other
actions of any such committee shall be governed by the provisions of this
Article applicable to meetings and actions of the Board of Directors. Minutes
shall be kept of each meeting of each committee.
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ARTICLE 4. OFFICERS
OFFICERS
4.1 The officers of the corporation shall be a President, a Secretary and a
Treasurer. The corporation may also have, at the discretion of the Board of
Directors, a Chairman of the Board, one or more Vice Chairmen of the Board, one
or more Vice Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers, and such other officers as may be elected or appointed in
accordance with the provisions of this Article.
ELECTION
4.2 The officers of the corporation, except such officers as may be elected or
appointed in accordance with the provisions of this Article, shall be chosen
annually by, and shall serve at the pleasure of, the Board of Directors, and
shall hold their respective offices until their resignation, removal, or other
disqualification from service, or until their respective successors shall be
elected.
SUBORDINATE OFFICERS
4.3 The Board of Directors may elect, and may empower the President to appoint,
such other officers as the business of the corporation may require, each of whom
shall hold office for such period, have such authority and perform such duties
as are provided in these Bylaws or as the Board of Directors may from time to
time determine.
REMOVAL AND RESIGNATION
4.4 Any officer may be removed, either with or without cause, by the Board of
Directors at any time or, except in the case of an officer chosen by the Board
of Directors, by any officer upon whom such power of removal may be conferred by
the Board of Directors. Any such removal shall be without prejudice to the
rights, if any, of the officer under any contract of employment of the officer.
Any officer may resign at any time by giving written notice to the
corporation, but without prejudice to the rights, if any, of the corporation
under any contract to which the officer is a party. Any such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
VACANCIES
4.5 A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these Bylaws for regular election or appointment to such office.
THE CHAIRMAN OF THE BOARD
4.6 The Chairman of the Board, if any, shall preside at all meetings of the
Board of Directors and he or she shall have and may exercise such powers as are,
from time to time, assigned to him or her by the Board of Directors and as may
be provided by law.
4.7 In the absence of the Chairman of the Board, the Vice Chairman of the
Board, if any, shall preside at all meetings of the Board of Directors and he or
she shall have and may exercise such powers as are, from time to time, assigned
to him or her by the Board of Directors and as may be provided by law.
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THE PRESIDENT AND VICE-PRESIDENTS
4.8 Subject to such powers, if any, as may be given by the Board of Directors
to the Chairman of the Board, if there be such an officer, the President is the
general manager and chief executive officer of the corporation and has, subject
to the control of the Board of Directors, general supervision, direction and
control of the business and officers of the corporation. The President shall
preside at all meetings of the stockholders and, in the absence of the Chairman
of the Board, or if there be none, at all meetings of the Board of Directors.
The President has the general powers and duties of management usually vested in
the office of President and general manager of a corporation and such other
powers and duties as may be prescribed by the Board of Directors.
4.9 In the absence or disability of the President, the Vice Presidents in order
of their rank as fixed by the Board of Directors, or, if not ranked, the Vice
President designated by the Board of Directors, shall perform all the duties of
the President and, when so acting, shall have all the powers of, and be subject
to all the restrictions upon, the President. The Vice Presidents shall have such
other powers and perform such other duties as from time to time may be
prescribed for them respectively by the Board of Directors.
THE SECRETARY AND ASSISTANT SECRETARY
4.10 The Secretary shall keep or cause to be kept, at the principal executive
office and such other place as the Board of Directors may order, a book of
minutes of all meetings of stockholders, the Board of Directors and its
committees, with the time and place of holding, whether regular or special, and
if special, how authorized, the notice thereof given, the names of those present
at Board of Directors and committee meetings, the number of shares present or
represented at stockholders' meetings, and the proceedings thereof. The
Secretary shall keep, or cause to be kept, a copy of these Bylaws of the
corporation at the principal executive office or such other place as the Board
of Directors may order.
The Secretary shall keep, or cause to be kept, at the principal executive
office or at the office of the corporation's transfer agent or registrar, if one
has been appointed, a share register, or a duplicate share register, showing the
names of the stockholders and their addresses, the number and classes of shares
held by each, the number and date of certificates issued for the same, and the
number and date of cancellation of every certificate surrendered for
cancellation.
The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and of the Board of Directors and any committees thereof
required by these Bylaws or by law to be given, shall keep the seal of the
corporation in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors.
4.11 The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election) shall, in absence of
the Secretary or in the event of his or her inability or refusal to act, perform
the duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
THE TREASURER AND ASSISTANT TREASURER
4.12 The Treasurer is the chief financial officer of the corporation and shall
keep and maintain, or cause to be kept and maintained, adequate and correct
accounts of the properties and business transactions of the corporation, and
shall send or cause to be sent to the stockholders of the corporation such
financial statements and reports as are by law or these Bylaws required to be
sent to them. The books of account shall at all times be open to inspection by
any director.
The Treasurer shall deposit all moneys and other valuables in the name and
to the credit of the corporation with such depositaries as may be designated by
the Board of Directors. The Treasurer shall
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disburse the funds of the corporation as may be ordered by the Board of
Directors, shall render to the President and the directors, whenever they
request it, an account of all transactions as Treasurer and of the financial
condition of the corporation, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors.
4.13 The Assistant Treasurer, or if there be more than one, the Assistant
Treasurers in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election) shall, in absence of
the Treasurer or in the event of his or her inability or refusal to act, perform
the duties and exercise the powers of the Treasurer and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
ARTICLE 5. CERTIFICATE OF STOCK
5.1 Every holder of stock in the corporation shall be entitled to have a
certificate, signed by, or in the name of the corporation by, the Chairman or
Vice Chairman of the Board, or the President or a Vice President and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary,
certifying the number of shares owned by the holder in the corporation.
5.2 Certificates may be issued for partly paid shares and in such case upon the
face or back of the certificates issued to represent any such partly paid
shares, the total amount of the consideration to be paid therefor, and the
amount paid thereon shall be specified.
5.3 If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of Delaware, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the corporation shall issue to represent such class or
series of stock, a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
5.4 Any of or all the signatures on the certificate may be facsimile. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
5.5 The Board of Directors may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his or her legal representative, to
advertise the same in such manner as it shall require and/or to give the
corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
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TRANSFER OF STOCK
5.6 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, assignation or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
FIXING RECORD DATE
5.7 In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of the stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date: (a) in the case of
determination of stockholders entitled to vote at any meeting of stockholders or
adjournment thereof, shall, unless otherwise required by law, not be more than
60 nor less than 10 days before the date of such meeting; (b) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than 10 days from the date upon
which the resolution fixing the record date is adopted by the Board of Directors
and (c) in the case of any other action, shall not be more than 60 days prior to
such other action. If no record date is fixed: (a) the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (b) the record date
for determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action of the Board of Directors is
required by law or the Certificate of Incorporation, shall be the first date on
which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the corporation in accordance with applicable law, or, if
prior action by the Board of Directors is required by law or the Certificate of
Incorporation, shall be at the close of business on the day on which the Board
of Directors adopts the resolution taking such prior action and (c) the record
date for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
REGISTERED STOCKHOLDERS
5.8 The corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, and
to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE 6. GENERAL PROVISIONS
MAINTENANCE AND INSPECTION OF RECORDS
6.1 Any stockholder of record, in person or by attorney or other agent, shall,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
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records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanies by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in the State of Delaware or at its
principal executive office.
6.2 Any director shall have the right to examine the corporation's stock
ledger, a list of its stockholders, and its other books and records for a
purpose reasonably related to the director's position as a director. The Court
of Chancery is hereby vested with the exclusive jurisdiction to determine
whether a director is entitled to the inspection sought. The Court may summarily
order the corporation to permit the director to inspect any and all books and
records, the stock ledger, and the stock list and to make copies or extracts
therefrom. The Court may, in its discretion, prescribe any limitations or
conditions with reference to the inspection, or award such other and further
relief as the Court may deem just and proper.
ANNUAL REPORT TO STOCKHOLDERS
6.3 At any point at which the corporation has less than 100 holders of record
of its shares, this corporation expressly waives the annual report to
stockholders. Notwithstanding the waiver of such annual report by the
corporation, nothing herein shall be interpreted as prohibiting the Board of
Directors from issuing voluntary annual or other periodic reports to
stockholders during such time as the corporation has less than 100 holders of
record.
CHECKS; DRAFTS; EVIDENCE OF INDEBTEDNESS
6.4 From time to time, the Board of Directors shall determine by resolution
which person or persons may sign or endorse all checks, drafts, other orders for
the payment of money, notes or other evidences of indebtedness that are issued
in the name of or payable to the corporation, and only the persons so authorized
shall sign or endorse those instruments.
ENDORSEMENT OF DOCUMENTS; CONTRACTS
6.5 Subject to the provisions of applicable law, any note, mortgage, evidence
of indebtedness, contract, share certificate, conveyance or other instrument in
writing and any assignment or endorsements thereof executed or entered into
between the corporation and any other person, when signed by the Chairman of the
Board, the President or any Vice President and the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the corporation shall be
valid and binding on the corporation in the absence of actual knowledge on the
part of the other person that the signing officers had no authority to execute
the same. Any such instruments may be signed by any other person or persons and
in such manner as from time to time shall be determined by the Board of
Directors, and, unless so authorized by the Board of Directors, no officer,
agent or employee shall have any power or authority to bind the corporation by
any contract or engagement or to pledge its credit or to render it liable for
any purpose or amount.
REPRESENTATION OF SHARES OF OTHER CORPORATIONS
6.6 The President or any other officer or officers authorized by the Board of
Directors or the President are each authorized to vote, represent and exercise
on behalf of the corporation all rights incident to any and all shares of any
other corporation or corporations standing in the name of the corporation. The
authority herein granted may be exercised either by any such officer in person
or by any other person authorized so to do by proxy or power of attorney duly
executed by said officer.
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STOCK PURCHASE PLANS
6.7 The corporation may adopt and carry out a stock purchase plan or agreement
or stock option plan or agreement providing for the issue and sale for such
consideration as may be fixed of its unissued shares, or of issued shares
acquired or to be acquired, to one or more of the employees or directors of the
corporation or of a subsidiary or to a trustee on their behalf and for the
payment for such shares in installments or at one time, and may provide for
aiding any such persons in paying for such shares by compensation for services
rendered, promissory notes or otherwise.
Any such stock purchase plan or agreement or stock option plan or agreement
may include, among other features, the fixing of eligibility for participation
therein, the class and price of shares to be issued or sold under the plan or
agreement, the number of shares which may be subscribed for, the method of
payment therefor, the reservation of title until full payment therefor, the
effect of the termination of employment, an option or obligation on the part of
the corporation to repurchase the shares upon termination of employment,
restrictions upon transfer of the shares, the time limits of and termination of
the plan, and any other matters, not in violation of applicable law, as may be
included in the plan as approved or authorized by the Board of Directors or any
committee of the Board of Directors.
CONSTRUCTION AND DEFINITIONS
6.8 Unless the context otherwise requires, the general provisions, rules of
construction and definitions contained in the General Corporation Law of
Delaware shall govern the construction of these Bylaws.
AMENDMENTS
6.9 These Bylaws may be amended or repealed either by approval of 66- 2/3% of
the outstanding shares of the corporation entitled to vote on such action or by
the approval of the Board of Directors, for those amendments to the Bylaws for
which approval of the Board of Directors alone is sufficient under the General
Corporation Law of Delaware.
FISCAL YEAR
6.10 The fiscal year of the corporation shall be fixed by resolution of the
Board of Directors.
DIVIDENDS
6.11 Dividends upon the capital stock of the corporation, subject to the
provisions of the Certificate of Incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property, or in shares of the capital stock, subject to
the provisions of the Certificate of Incorporation.
6.12 Before payment of any dividend, there may be set aside out of any funds of
the corporation available for dividends such sum or sums as the directors from
time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for such other purposes as the
directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
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LOANS TO OFFICERS AND EMPLOYEES
6.13 The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or of its
subsidiaries, including any officer or employee who is a director of the
corporation or its subsidiaries, whenever, in the judgment of the Board of
Directors, such loan, guarantee or assistance may reasonably be expected to
benefit the corporation. The loan, guarantee or other assistance may be with or
without interest and may be unsecured, or secured in such manner as the Board of
Directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing in these Bylaws shall be deemed to deny, limit
or restrict the powers of guaranty or warranty of the corporation at common law
or under any statute.
ARTICLE 7. INDEMNIFICATION
RIGHT TO INDEMNIFICATION
7.1 The corporation shall indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be amended,
any person (an "INDEMNITEE") who was or is made or is threatened to be made a
party or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "PROCEEDING"), by reason of the
fact that such person, or a person for whom he or she is the legal
representative, is or was a director or officer of the corporation or, while a
director or officer of the corporation, is or was serving at the written request
of the corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise or non-profit
entity, including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorneys' fees) reasonably
incurred by such Indemnitee. Notwithstanding the preceding sentence, except as
otherwise provided in Section 7.3, the corporation shall be required to
indemnify an Indemnitee in connection with a proceeding (or part thereof)
commenced by such Indemnitee only if the commencement of such proceeding (or
part thereof) by the Indemnitee was authorized by the Board of Directors.
PREPAYMENT OF EXPENSES
7.2 The corporation shall pay the expenses (including attorneys' fees) incurred
by an Indemnitee in defending any proceeding in advance of its final
disposition, PROVIDED, HOWEVER, that, to the extent required by law, such
payment of expenses in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Indemnitee to repay all
amounts advanced if it should be ultimately determined that the Indemnitee is
not entitled to be indemnified under this Article or otherwise.
CLAIMS
7.3 If a claim for indemnification of advancement of expenses under this
Article is not paid in full within 60 days after a written claim therefor by the
Indemnitee has been received by the corporation, the Indemnitee may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the corporation shall have the burden of proving that the Indemnitee is
not entitled to the requested indemnification or advancement of expenses under
applicable law.
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NONEXCLUSIVITY OF RIGHTS
7.4 The rights conferred on any Indemnitee by this Article shall not be
exclusive of any other rights which such Indemnitee may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation, these
Bylaws, agreement, vote of the stockholders or disinterested directors or
otherwise.
OTHER SOURCES
7.5 The corporation's obligation, if any, to indemnify or to advance expenses
to any Indemnitee who was or is serving at its request as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
enterprise or non-profit entity shall be reduced by any amount such Indemnitee
may collect as indemnification or advancement of expenses from such other
corporation, partnership, joint venture, trust, enterprise or non-profit entity.
AMENDMENT OR REPEAL
7.6 Any repeal or modification of the foregoing provisions of this Article
shall not adversely affect any right or protection hereunder of any Indemnitee
in respect of any act or omission occurring prior to the time of such repeal or
modification.
OTHER INDEMNIFICATION AND PREPAYMENT OF EXPENSES
7.7 This Article shall not limit the right of the corporation, to the extent
and in the manner permitted by law, to indemnify and to advance expenses to
persons other than Indemnitees when and as authorized by appropriate corporate
action.
INSURANCE
7.8 The corporation may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the corporation would have the power
to indemnify such person against such expense, liability or loss under the law.
INDEMNITY AGREEMENTS
7.9 The corporation may enter into agreements with any director, officer,
employee or agent of the corporation, providing for indemnification to the
fullest extent permissible under the law and the Certificate of Incorporation.
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