SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 16, 2000
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THCG, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-26072 87-0415597
(State or Other Jurisdiction of (Commission File Number) (I.R.S. Employer
Incorporation or Organization) Identification No.)
650 Madison Avenue, 21st Floor, New York, NY 10022
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (212) 223-0440
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Item 5. Other Events
On May 15, 2000, at the Annual Meeting of Shareholders of THCG, Inc., a
Utah corporation (the "Company"), the shareholders of the Company approved a
proposal to reincorporate the Company in Delaware (the "Reincorporation")
pursuant to an Agreement and Plan of Merger, dated April 6, 2000 (the "Merger
Agreement"), between the Company and THCG, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("THCG Delaware"). The Merger Agreement
is filed with this Current Report as Exhibit 2.1. The Reincorporation was
effected on May 16, 2000 by merging the Company with and into THCG Delaware (the
"Merger"). The Reincorporation changed the legal domicile of the Company from
Utah to Delaware, but did not result in a change in the principal offices,
business, management, capitalization, assets or liabilities of the Company. By
operation of law, THCG Delaware succeeded to all the assets and assumed all the
liabilities of the Company.
Upon the effectiveness of the Merger:
(1) The Company ceased to exist and THCG Delaware continued to exist in
its present form under the name "THCG, Inc."
(2) Each outstanding share of common stock of the Company, par value
$.01 per share (the "THCG Utah Common Stock"), was automatically converted into
one (1) fully paid and nonassesable share of common stock of THCG Delaware, par
value $.01 per share (the "THCG Delaware Common Stock"). In addition, each share
of preferred stock of the Company, par value, $.01 per share, if any, was
automatically converted into one (1) fully paid and nonassessable share of
identical preferred stock of THCG Delaware, par value $.01 per share.
(3) Each option to purchase THCG Utah Common Stock was converted into
an option to purchase, for the same exercise price and on the same terms and
conditions as contained in such option, THCG Delaware Common Stock.
(4) The certificate of incorporation and bylaws of THCG Delaware
effectively replaced the articles of incorporation and bylaws of the Company. A
copy of the certificate of incorporation of THCG Delaware is filed with this
Current Report as Exhibit 3.1, and a copy of the by-laws of THCG Delaware is
filed with this Current Report as Exhibit 3.2.
The foregoing description of the Merger is qualified in its entirety
by reference to the full text of the Merger Agreement and to the description of
the Reincorporation set forth in the Company's Proxy Statement with respect to
the Annual Meeting of Shareholders of the Company held on May 15, 2000. The
Company filed the Proxy Statement (File No. 811-09677) with the Securities and
Exchange Commission on April 17, 2000.
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
Exhibit No. Description
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2.1 Agreement and Plan of Merger, dated April 6,
2000, by and between the Company and THCG
Delaware.
3.1 Certificate of Incorporation of THCG Delaware.
3.2 By-laws of THCG Delaware.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: May 17, 2000
THCG, INC.
By: /s/ Adi Raviv
---------------------------------
Name: Adi Raviv
Title: Co-Chief Executive Officer
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
THCG, INC., a Utah corporation
AND
THCG, INC., a Delaware corporation
DATED AS OF APRIL 6, 2000
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of April 6, 2000 (this
"Agreement"), by and between THCG, Inc., a Utah corporation ("THCG Utah"), and
THCG, Inc., a Delaware corporation and a wholly-owned subsidiary of THCG Utah
("THCG Delaware").
WHEREAS, the respective boards of directors of THCG Utah and THCG
Delaware, deeming it advisable and for the respective benefit of THCG Utah and
THCG Delaware and their stockholders, have approved this Agreement pursuant to
which THCG Utah will be merged with and into THCG Delaware (the "Merger ") on
the terms and conditions contained herein and in accordance with the Utah
Revised Business Corporation Act (the "URBCA") and the General Corporation Law
of the State of Delaware (the "DGCL");
NOW, THEREFORE, in consideration of the premises and agreements
herein contained, and intending to be legally bound hereby, THCG Utah and THCG
Delaware hereby agree as follows:
ARTICLE 1
THE MERGER
SECTION 1.1 The Merger. Upon the terms and subject to the conditions
of this Agreement, at the Effective Time and in accordance with the URBCA and
the DGCL, THCG Utah shall be merged with and into THCG Delaware. Following the
Merger, the separate corporate existence of THCG Utah shall cease and THCG
Delaware shall continue as the surviving corporation (the "Surviving Corporation
") under the name "THCG, Inc."
SECTION 1.2 Effective Time. The parties hereto shall cause the Merger
to be consummated by filing a certificate of merger (the "Certificate of
Merger") in such form as is required by and executed in accordance with the
relevant provisions of the URBCA and the DGCL. The Merger shall become effective
at such time as the Certificate of Merger is duly filed with the Division of
Corporations and Commercial Code of the State of Utah and the Secretary of State
of the State of Delaware or at such subsequent time as the parties shall agree
and shall be specified in the Certificate of Merger (the date and time the
Merger becomes effective being the "Effective Time").
SECTION 1.3 Certificate of Incorporation. At the Effective Time, the
certificate of incorporation of THCG Delaware, as in effect immediately prior to
the Effective Time, shall be the certificate of incorporation of the Surviving
Corporation, unless and until thereafter changed or amended as provided therein
or in accordance with applicable law.
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SECTION 1.4 By-laws. At the Effective Time, the by-laws of THCG
Delaware, as in effect immediately prior to the Effective Time, shall be the
by-laws of the Surviving Corporation, unless and until thereafter changed or
amended as provided therein or in the certificate of incorporation of the
Surviving Corporation or by applicable law.
SECTION 1.5 Directors and Officers. At the Effective Time, the
directors of THCG Utah immediately preceding the Effective Time shall become the
directors of the Surviving Corporation to serve until the earlier of their
death, resignation or removal and until their respective successors are duly
elected and qualified. At the Effective Time, the officers of THCG Utah
immediately preceding the Effective Time shall become the officers of the
Surviving Corporation until the earlier of their death, resignation or removal
and until their respective successors are duly elected or qualified.
ARTICLE 2
CONVERSION OF CAPITAL STOCK OF
THE CONSTITUENT CORPORATIONS
As of the Effective Time, by virtue of the Merger and without any
action on the part of THCG Utah, THCG Delaware or their respective stockholders:
SECTION 2.1 Conversion of Capital Stock of THCG Utah. Subject to
Section 2.6, (a) each share of common stock, par value $.01 per share, of THCG
Utah (the "THCG Utah Common Stock") issued and outstanding immediately prior to
the Effective Time shall be converted into one (1) validly issued, fully paid
and non-assessable share of common stock, par value $.01 per share, of the
Surviving Corporation (the "THCG Delaware Common Stock"), and (b) each share of
Preferred Stock, par value $.01 per share, of THCG Utah (the "THCG Utah
Preferred Stock"), if any, issued and outstanding immediately prior to the
Effective Time shall be converted into one (1) validly issued, fully paid and
non assessable share of identical Preferred Stock, par value $.01 per share, of
the Surviving Corporation ("THCG Delaware Preferred Stock").
SECTION 2.2 THCG Utah Stock Options. At the Effective Time, the
Surviving Corporation shall assume and continue THCG Utah's (a) Walnut Capital
Corporation 1987 Stock Option Plan (the "1987 Plan"), (b) Amended and Restated
1994 Walnut Financial Services, Inc. Stock Incentive Plan (the "1994 Plan"), (c)
1999 Walnut Financial Services, Inc. Stock Incentive Plan (the "1999 Plan"), (d)
THCG, Inc. 2000 Employee Stock Purchase Plan (the "Purchase Plan"), (e) 2000
THCG, Inc. Stock Incentive Plan (the "2000 Plan"), (f) 2000 Non-Employee
Directors Stock Option Plan (the "Directors Plan"), (g) any other option plan
heretofore adopted by the Board of Directors of THCG Utah and in effect on the
date hereof (the "Other Plans," and, together with the 1987 Plan, the 1994 Plan,
the 1999 Plan, the Purchase Plan, the Directors Plan and the 2000 Plan, the
"Plans") and (h) each option or warrant to purchase THCG Utah Common Stock,
whether or not granted pursuant to the Plans (each, a "THCG Utah Option"), shall
be assumed by THCG Delaware and shall be converted into and shall constitute an
option to purchase, for the same exercise price per share and on the same terms
and conditions as are contained in such THCG Utah
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Option on the Effective Date, one fully paid and non-assessable share of THCG
Delaware Common Stock. As soon as practicable following the Effective Time, THCG
Delaware shall cause to be delivered to each holder of an outstanding THCG Utah
Option an appropriate notice setting forth such holder's rights pursuant thereto
and that such THCG Utah Option shall continue in effect on the same terms and
conditions.
SECTION 2.3 Conversion of Capital Stock of THCG Delaware. Each share
of THCG Delaware Common Stock issued and outstanding immediately prior to the
Effective Time and held by THCG Utah shall be cancelled and retired and cease to
exist, without any conversion thereof.
SECTION 2.4 Treasury Shares. Each share of THCG Utah Common Stock and
THCG Delaware Common Stock held in treasury by THCG Utah and THCG Delaware,
respectively, immediately prior to the Effective Time shall be cancelled and
retired and cease to exist, without any conversion thereof.
SECTION 2.5 Stock Certificates. On or after the Effective Time, all of
the outstanding stock certificates which prior to that time represented shares
of THCG Utah Common Stock or THCG Utah Preferred Stock, if any, shall be deemed
for all purposes to evidence ownership of and to represent the shares of THCG
Delaware Common Stock and THCG Delaware Preferred Stock, respectively, into
which the shares of THCG Utah Common Stock or THCG Utah Preferred Stock, if any,
represented by such certificates have been converted as provided by Section 2.1
and shall be so registered on the books and records of the Surviving Corporation
or its transfer agent. The registered owner of any such outstanding stock
certificate shall, until such certificate shall been surrendered for transfer or
conversion to the Surviving Corporation or its transfer agent, have and be
entitled to exercise any voting and other rights with respect to and to receive
any dividend and other distributions upon the shares of THCG Delaware Common
Stock or THCG Delaware Preferred Stock, if any, evidenced by such outstanding
stock certificate as provided in this Section 2.5.
SECTION 2.6 Dissenters' Rights. Notwithstanding any provision of this
Agreement to the contrary, any shares of THCG Utah Common Stock or THCG Utah
Preferred Stock, if any, outstanding immediately prior to the Effective Time
held by a holder who has demanded and perfected the right, if any, for appraisal
of those shares in accordance with the provisions of Section 16-10a-1302 of the
URBCA and as of the Effective Time has not withdrawn or lost such right to
appraisal shall not be converted into or represent a right to receive THCG
Delaware Common Stock or THCG Delaware Preferred Stock, as the case may be,
pursuant to Sections 2.1, but the holder shall only be entitled to such rights
as are granted by said Section of the URBCA. If a holder of shares of THCG Utah
Common Stock or THCG Utah Preferred Stock, if any, who demands appraisal of
those shares under the URBCA shall effectively withdraw or lose (through failure
to perfect or otherwise) the right to appraisal, then, as of the Effective Time
or the occurrence of such event, whichever last occurs, those shares shall be
converted into and represent only the right to receive THCG Delaware Common
Stock or THCG Delaware Preferred Stock, as the case may be, as provided in
Sections 2.1, without interest.
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SECTION 2.7 Tax Consequences. It is intended by the parties hereto
that the Merger shall constitute a reorganization within the meaning of Section
368 of the Code and the regulations promulgated thereunder. The parties hereto
hereby adopt this Agreement as a "plan of reorganization" within the meaning of
Sections 1.368-2(g) and 1.368-3(a) of the United States Treasury Regulations
with respect to the Merger.
ARTICLE 3
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION 3.1 Conditions to Each Party's Obligations to Effect the
Merger. The respective obligations of each party hereto to effect the Merger and
the other transactions contemplated by this Agreement are subject to the
satisfaction at or prior to the Effective Time of the following conditions:
(a) this Agreement (including the Merger) shall have been
approved and adopted by the applicable requisite vote of the shareholders of
THCG Utah in accordance with the applicable provisions of the URBCA;
(b) this Agreement (including the Merger) shall have been
approved and adopted by THCG Utah, as the sole stockholder of THCG Delaware, in
accordance with the applicable provisions of the DGCL;
(c) no statute, rule, regulation, executive order, decree, ruling
or injunction shall have been enacted, entered, promulgated or enforced by any
governmental entity which prohibits, restrains, enjoins or restricts the
consummation of the transactions contemplated by this Agreement (including the
Merger) or which subjects any party to substantial damages as a result of the
consummation of the transactions contemplated by this Agreement (including the
Merger); and
(d) all required consents, approvals, waivers and authorizations
of any governmental entity or regulatory agency which are necessary to effect
the transactions contemplated by this Agreement (including the Merger) shall
have been obtained.
ARTICLE 4
MISCELLANEOUS
SECTION 4.1 Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, notwithstanding
approval thereof by the shareholders of THCG Utah or the sole stockholder of
THCG Delaware, by the Board of Directors of either THCG Utah or THCG Delaware or
both if, in the opinion of the Boards of Directors of THCG Utah and THCG
Delaware, such action would be in the best interest of such corporations. In the
event that this Agreement is terminated and the Merger abandoned pursuant to
this Section 4.1, no party hereto and none of their respective subsidiaries or
any of the officers or directors of any of them shall have any liability of any
nature whatsoever hereunder, or in connection with the transactions contemplated
hereby.
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SECTION 4.2 Amendment. This Agreement may be amended by action taken
by THCG Utah and THCG Delaware at any time before or after approval of the
Merger by the shareholders of THCG Utah and the sole stockholder of THCG
Delaware but, after any such approval, no amendment shall be made which requires
the approval of such stockholders under applicable law without such approval.
This Agreement may not be amended except by an instrument in writing signed on
behalf of the parties hereto
SECTION 4.3 Entire Agreement; Assignment. This Agreement (a)
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and (b) shall not be assigned by operation of law or
otherwise.
SECTION 4.4 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
SECTION 4.5 Interpretation. The headings herein are for convenience of
reference only, do not constitute part of this Agreement and shall not be deemed
to limit or otherwise affect any of the provisions hereof. Where a reference in
this Agreement is made to a Section or Article, such reference shall be to a
Section or Article of this Agreement unless otherwise indicated. Where the
reference "hereby" or "herein" appears in this Agreement, such reference shall
be deemed to be a reference to this Agreement as a whole. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation." Words denoting the
singular include the plural, and vice versa, and references to it or its or
words denoting any gender shall include all genders.
SECTION 4.6 Further Assurances. By its signature hereto, each party
consents and agrees to all of the transactions contemplated hereby. Each party
hereto shall execute, deliver, file and record any and all instruments,
certificates, agreements and other documents, and take any and all other
actions, as reasonably requested by the other party hereto in order to
consummate the transactions contemplated hereby.
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement
to be duly executed on its behalf as of the day and year first above written.
THCG, INC., a Utah corporation
By /s/ Joseph D. Mark
-------------------------------
Name: Joseph D. Mark
Title: co-Chief Executive Officer
THCG, INC., a Delaware corporation
By /s/ Adi Raviv
--------------------------------
Name: Adi Raviv
Title: co-Chief Executive Officer
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Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
THCG, INC.
FIRST: The name of the Corporation is THCG, Inc. (the
"Corporation").
SECOND: The address of the registered office of the
Corporation in Delaware is 1013 Centre Road, City of Wilmington, County of New
Castle, and the name of the registered agent of the Corporation at such address
is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware (the "Delaware General Corporation
Law").
FOURTH: The name and mailing address of the Sole Incorporator
are as follows:
Name Mailing Address
---- ---------------
Sherri Hawkins c/o Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
FIFTH: The total number of shares of all classes of stock
which the Corporation is authorized to issue is 110,000,000 shares, of which
100,000,000 shall be designated Common Stock, par value $0.01 per share, and
10,000,000 shall be designated Preferred Stock, par value $0.01 per share.
(a) The Common Stock:
The holders of Common Stock shall be entitled to one
vote for each Share so held and shall be entitled to notice of any stockholders
meeting and to vote upon any such matters as provided in the by-laws of the
Corporation or as may be provided by law. Except for and subject to those rights
expressly granted to holders of Preferred Stock, and except as may be provided
by the laws of the State of Delaware, the holders of Common Stock shall have all
other rights of stockholders, including, without limitation, (i) the right to
receive dividends, when, as and if declared by the Board of Directors of the
Corporation, out of assets lawfully available therefor, and (ii) in the event of
any distribution of assets upon a liquidation or otherwise, the right to receive
all the assets and funds of the Corporation remaining after the payment to the
holders of the Preferred Stock, if any, of the specific amounts which they are
entitled to receive upon such distribution.
(b) The Preferred Stock:
The Board of Directors is hereby expressly authorized
to provide for, designate and issue, out of the authorized but unissued shares
of Preferred Stock, one or more series of Preferred Stock, subject to the terms
and conditions set forth herein. Before any shares of any such series are
issued, the Board of Directors shall fix, and hereby is expressly empowered to
fix, by resolution or resolutions, the following provisions of the shares of any
such series:
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(i) the designation of such series, the number of
shares to constitute such series and the stated value thereof, if different from
the par value thereof;
(ii) whether the shares of such series shall have
voting rights or powers, in addition to any voting rights required by law, and,
if so, the terms of such voting rights or powers, which may be full or limited;
(iii) the dividends, if any, payable on such series,
whether any such dividends shall be cumulative, and, if so, from what dates, the
conditions and dates upon which such dividends shall be payable, the preference
or relation which such dividends shall bear to the dividends payable on any
other series of Preferred Stock or on any other class or classes of stock of the
Corporation or any series of any such class;
(iv) whether the shares of such series shall be
subject to redemption at the option of the Corporation or at the option of the
holder thereof, and, if so, the times, prices and other conditions of such
redemption;
(v) the amount or amounts payable on shares of such
series upon, and the rights of the holders of such series in, the voluntary or
involuntary liquidation, dissolution or winding up, or upon any distribution of
the assets, of the Corporation and the preference or relation which such amounts
shall bear to the amounts payable on any other series of Preferred Stock or on
any other class or classes of stock of the Corporation or any series of any such
class ;
(vi) whether the shares of such series shall be
subject to the operation of a retirement or sinking fund and, if so, the extent
to and manner in which any such retirement or sinking fund shall be applied to
the purchase or redemption of the shares of such series for retirement or other
corporate purposes and the terms and provisions relative to the operation
thereof;
(vii) whether the shares of such series shall be
convertible into, or exchangeable for, shares of Preferred Stock of any other
series or any other class or classes of stock of the Corporation or any series
of any such class or any other securities and, if so, the price or prices or the
rate or rates of conversion or exchange and the method, if any, of adjusting the
same, and any other terms and conditions of such conversion or exchange;
(viii) the limitations and restrictions, if any, to
be effective while any shares of such series are outstanding upon the payment of
dividends or the making of other distributions on, and upon the purchase,
redemption or other acquisition by the Corporation of, the Common Stock or
shares of Preferred Stock of any other series or any other class or classes of
stock of the Corporation or any series of any such class;
(ix) the conditions or restrictions, if any, to be
effective while any shares of such series are outstanding upon the creation of
indebtedness of the Corporation or upon the issuance of any additional stock,
including additional shares of such series or of any other series of Preferred
Stock or of any other class or classes of stock of the Corporation or any series
of any such class; and
(x) any other powers, designations, preferences and
relative, participating, optional or other special rights, and any
qualifications, limitations or restrictions thereof.
The powers, designations, preferences and relative,
participating, optional or other special rights of each series of Preferred
Stock, and the qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding. The Board
of Directors is hereby expressly authorized from time to time to increase (but
not above the total number of authorized shares of Preferred Stock) or decrease
(but not below the number of shares thereof then outstanding) the number of
shares of stock of any series of Preferred Stock.
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SIXTH: (a) The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors except as
otherwise provided herein, in the by-laws of the Corporation or as required by
law.
(b) Election of directors need not be by written
ballot unless the by-laws of the Corporation shall so provide.
(c) The number of directors of the Corporation shall
be fixed by, or in the manner provided in, the by-laws of the Corporation.
Commencing on the effective time of the merger (the "Merger") of THCG, Inc., a
Utah corporation and the parent of the Corporation, with and into the
Corporation, the directors, other than those who may be elected by the holders
of any series of Preferred Stock, shall be classified, with respect to the term
for which they severally hold office, into three classes, as nearly equal in
number as possible. The initial Class I, II and III directors shall be appointed
by the Board of Directors upon the effective time of the Merger. The initial
Class I directors shall serve until the first annual meeting of stockholders
after the Merger. The initial Class II directors shall serve until the second
annual meeting of stockholders after the Merger. The initial Class III directors
shall serve until the third annual meeting of stockholders after the Merger.
Members of each class shall hold office until their successors are duly elected
and qualified or until their earlier death, disqualification, resignation or
removal. At each succeeding annual meeting of the stockholders of the
Corporation, the successors of the class of directors whose term expires at that
meeting shall be elected by a plurality vote of all votes cast at such meeting
to hold office for a term expiring at the annual meeting of stockholders held in
the third year following the year of their election and until their successors
are duly elected and qualified or until their earlier death, disqualification,
resignation or removal.
Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filing of
vacancies and other features of such directorships shall be governed by the
provisions of this Certificate of Incorporation applicable thereto, such
directors so elected shall not be divided into classes pursuant to this Article
SIXTH and the number of such directors shall not be counted in determining the
maximum number of directors permitted under the foregoing provisions of this
Article SIXTH, in each case unless expressly provided by such provisions.
(d) No director of the Corporation shall be removed
from office as a director by vote, consent or other action of the stockholders
or otherwise except for cause.
SEVENTH: (a) Any action required or permitted to be taken by
the stockholders of the Corporation must be effected at a duly called annual or
special meeting of the stockholders and may not be effected by a consent in
writing by any such stockholders.
(b) Special meetings of the stockholders of the
Corporation may be called only by a Co-Chief Executive Officer of the
Corporation, the Chief Executive Officer of the Corporation, if there is one, or
the Board of Directors pursuant to a resolution approved by the affirmative vote
of a majority of directors then in office.
EIGHTH: A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived any
improper personal benefit. If the Delaware General Corporation Law is amended
after the date hereof 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 Delaware General Corporation Law, as so amended. No amendment
to
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or repeal of this Article EIGHTH shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment.
NINTH: (a) The Corporation shall to the fullest extent
permitted by Delaware law, as in effect from time to time (but, in the case of
any amendment of the Delaware General Corporation Law, only to the extent that
such amendment permits the Corporation to provide broader indemnification rights
than said law permitted the Corporation to provide prior to such amendment),
indemnify each person who is or was a director or officer of the Corporation (or
any predecessor) or of any of its wholly-owned subsidiaries who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, or was or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that such director of officer is or was a director, officer, employee or
agent of the Corporation or of any of its subsidiaries, or is or was at any time
serving, at the request of the Corporation, any other corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against all expense, liability and loss (including,
but not limited to, attorneys' fees, judgments, fines, excise taxes or penalties
with respect to any employee benefit plan or otherwise, and amounts paid or to
be paid in settlement) incurred or suffered by such director or officer in
connection with such proceeding; provided, however, that the Corporation shall
not be obligated to indemnify any person under this Article NINTH in connection
with a proceeding (or part thereof) if such proceeding (or part thereof) was
initiated by such person, but was not authorized by the Board of Directors of
the Corporation against (i) the Corporation or any of its subsidiaries, (ii) any
person who is or was a director, officer, employee or agent of the Corporation
or any of its subsidiaries and/or (iii) any person or entity which is or was
controlled, controlled by or under common control with the Corporation or has or
had business relations with the Corporation or any of its subsidiaries.
(b) Expenses incurred by a person who is or was a director or
officer of the Corporation (or any predecessor) or any of its wholly-owned
subsidiaries in defending a proceeding shall be paid by the Corporation as they
are incurred in advance of the final disposition of such proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation. Such expenses incurred by former directors or
officers may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
(c) For purposes of this Article NINTH, the term "Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed by the
Corporation in a consolidation or merger; the term "other enterprise" shall
include, without limitation, any corporation, partnership, joint venture,
limited liability company, trust or employee benefit plan; service "at the
request of the Corporation" shall include, without limitation, service as a
director, officer or employee of the Corporation or any of its subsidiaries
which imposes duties on, or involves service by, such director, officer or
employee with respect to an employee benefit plan, its participants or
beneficiaries; any excise taxes assessed on a person with respect to an employee
benefit plan shall be deemed to be indemnifiable expenses; and action by a
person with respect to any employee benefit plan which such person reasonably
believes to be in the interest of the participants and beneficiaries of such
plan shall be deemed to be action in or not opposed to the best interests of the
Corporation.
(d) Notwithstanding any other provision of this Certificate of
Incorporation or the by-laws of the Corporation, no action by the Corporation,
either by amendment to or repeal of this Article NINTH or the by-laws of the
Corporation or otherwise shall diminish or adversely affect any right or
protection granted under this Article NINTH to any director or officer or former
director or officer of the Corporation (or any predecessor) or of any of its
wholly-owned subsidiaries which shall have become vested as aforesaid prior to
the date that any such amendment, repeal or other corporate action is taken.
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TENTH: (a) Except as provided otherwise by law or in the
by-laws of the Corporation, the by-laws of the Corporation may be amended or
repealed or new by-laws (not inconsistent with any provision of law or this
Certificate of Incorporation) may be adopted by the Board of Directors.
(b) The by-laws of the Corporation may be amended or repealed
at any annual meeting of stockholders, or special meeting of stockholders called
for such purpose, by the affirmative vote of a majority of the total votes
eligible to be cast on such amendment or repeal by holders of voting stock,
voting together as a single class.
Signed at New York, New York
on April 6, 2000
/s/ Sherri Hawkins
-------------------
Sherri Hawkins
Sole Incorporator
5
Exhibit 3.2
BY-LAWS
OF
THCG , INC.
ARTICLE I
Stockholders
SECTION 1. Annual Meeting. The annual meeting of stockholders
shall be held at the hour, date and place within or without the United States
which is fixed by the Board of Directors or an officer designated by the Board
of Directors, which time, date and place may subsequently be changed at any time
by vote of the Board of Directors.
SECTION 2. Matters to be Considered at Annual Meetings. At any
annual meeting or special meeting of stockholders in lieu thereof (the "Annual
Meeting"), only such business shall be conducted, and only such proposals shall
be acted upon as shall have been properly brought before such Annual Meeting. To
be considered as properly brought before an Annual Meeting, business must be:
(a) specified in the notice of meeting, (b) otherwise properly brought before
the meeting by, or at the direction of, the Board of Directors, or (c) otherwise
properly brought before the meeting by any holder of record (both as of the time
notice of such proposal is given by the stockholder as set forth below and as of
the record date for the Annual Meeting in question) of any shares of capital
stock of the Corporation entitled to vote at such Annual Meeting on such
business who complies with the requirements set forth in this Section 2.
In addition to any other applicable requirements, for business
to be properly brought before an Annual Meeting by a stockholder of record of
any shares of capital stock entitled to vote at such Annual Meeting, such
stockholder shall: (i) give timely notice as required by this Section 2 to the
Secretary of the Corporation, and (ii) be present at such meeting, either in
person or by a representative. For the first Annual Meeting following the merger
(the "Merger") of THCG, Inc., a Utah corporation and the parent of the
Corporation, with and into the Corporation, a stockholder's notice shall be
timely if delivered to, or mailed to and received by, the Corporation at its
principal executive office not later than the close of business on the later of
(A) the 75th day prior to the scheduled date of such Annual Meeting or (B) the
15th day following the day on which public announcement of the date of such
Annual Meeting is first made by the Corporation. For all subsequent Annual
Meetings, a stockholder's notice shall be timely if delivered to, or mailed to
and received by, the Corporation at its principal executive office not less than
75 days nor more than 120 days prior to the anniversary date of the immediately
preceding Annual Meeting (the "Anniversary Date"); provided, however, that in
the event the Annual Meeting is scheduled to be held on a date more than 30 days
before the Anniversary Date or more than 60 days after the Anniversary Date, a
stockholder's notice shall be timely if delivered to, or mailed to and received
by, the Corporation at its principal executive office not later than the close
of business on the later of (A) the 75th day prior to the scheduled date of such
Annual Meeting, or (B) the 15th day following the day on which public
announcement of the date of such Annual Meeting is first made by the
Corporation.
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For purposes of these By-Laws, "public announcement" shall
mean: (i) disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service, (ii) a report or other
document filed publicly with the Securities and Exchange Commission (including,
without limitation, a Form 8-K), or (iii) a letter or report sent to
stockholders of record of the Corporation at the close of business on the day of
the mailing of such letter or report.
A stockholder's notice to the Secretary shall set forth as to
each matter proposed to be brought before an Annual Meeting: (i) a brief
description of the business the stockholder desires to bring before such Annual
Meeting and the reasons for conducting such business at such Annual Meeting,
(ii) the name and address, as they appear on the Corporation's stock transfer
books, of the stockholder proposing such business, (iii) the class and number of
shares of the Corporation's capital stock beneficially owned by the stockholder
proposing such business, (iv) the names and addresses of the beneficial owners,
if any, of any capital stock of the Corporation registered in such stockholder's
name on such books, and the class and number of shares of the Corporation's
capital stock beneficially owned by such beneficial owners, (v) the names and
addresses of other stockholders known by the stockholder proposing such business
to support such proposal, and the class and number of shares of the
Corporation's capital stock beneficially owned by such other stockholders, and
(vi) any material interest of the stockholder proposing to bring such business
before such meeting (or any other stockholders known to be supporting such
proposal) in such proposal.
If the Board of Directors or a designated committee thereof
determines that any stockholder proposal was not made in a timely fashion in
accordance with the provisions of this Section 2 or that the information
provided in a stockholder's notice does not satisfy the information requirements
of this Section 2 in any material respect, such proposal shall not be presented
for action at the Annual Meeting in question. If neither the Board of Directors
nor such committee makes a determination as to the validity of any stockholder
proposal in the manner set forth above, the presiding officer of the Annual
Meeting shall determine whether the stockholder proposal was made in accordance
with the terms of this Section 2. If the presiding officer determines that any
stockholder proposal was not made in a timely fashion in accordance with the
provisions of this Section 2 or that the information provided in a stockholder's
notice does not satisfy the information requirements of this Section 2 in any
material respect, such proposal shall not be presented for action at the Annual
Meeting in question. If the Board of Directors, a designated committee thereof
or the presiding officer determines that a stockholder proposal was made in
accordance with the requirements of this Section 2, the presiding officer shall
so declare at the Annual Meeting and ballots shall be provided for use at the
meeting with respect to such proposal.
Notwithstanding the foregoing provisions of these By-Laws, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations thereunder with respect to the matters set forth in this By-Law, and
nothing in this By-Law shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation's proxy statement, or the
Corporation's right to refuse inclusion thereof, pursuant to Rule 14a-8 under
the Exchange Act.
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SECTION 3. Special Meetings. Except as otherwise required by
law, special meetings of the stockholders of the Corporation may be called only
by a Co-Chief Executive Officer of the Corporation, the Chief Executive Officer
of the Corporation, if there is one, or the Board of Directors pursuant to a
resolution approved by the affirmative vote of a majority of the Directors then
in office.
SECTION 4. Matters to be Considered at Special Meetings. Only
those matters set forth in the notice of the special meeting may be considered
or acted upon at a special meeting of stockholders of the Corporation, unless
otherwise provided by law.
SECTION 5. Notice of Meetings; Adjournments. A written notice
of all Annual Meetings stating the hour, date and place of such Annual Meetings
shall be given by the Secretary (or other person authorized by these By-Laws or
by law) not less than 10 days nor more than 60 days before the Annual Meeting,
to each stockholder entitled to vote thereat and to each stockholder who, by law
or under the Certificate of Incorporation of the Corporation ("Certificate of
Incorporation") or under these By-Laws, is entitled to such notice, by
delivering such notice to him or by mailing it, postage prepaid, addressed to
such stockholder at the address of such stockholder as it appears on the
Corporation's stock transfer books. Such notice shall be deemed to be delivered
when hand delivered to such address or deposited in the mail so addressed, with
postage prepaid.
Notice of all special meetings of stockholders shall be given
in the same manner as provided for Annual Meetings, except that the written
notice of all special meetings shall state the purpose or purposes for which the
meeting has been called.
Notice of an Annual Meeting or special meeting of stockholders
need not be given to a stockholder if a written waiver of notice is signed
before or after such meeting by such stockholder or if such stockholder attends
such meeting, unless such attendance was for the express purpose of objecting at
the beginning of the meeting to the transaction of any business because the
meeting was not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any Annual Meeting or special meeting of
stockholders need be specified in any written waiver of notice.
The Board of Directors may adjourn, postpone and reschedule
any previously scheduled Annual Meeting or special meeting of stockholders and
any record date with respect thereto, regardless of whether any notice or public
disclosure with respect to any such meeting has been sent or made pursuant to
Section 2 of this Article I or Section 3 of Article II of these By-Laws or
otherwise. In no event shall the public announcement of an adjournment,
postponement or rescheduling of any previously scheduled meeting of stockholders
commence a new time period for the giving of a stockholder's notice under
Section 2 of this Article I or Section 3 of Article II of these By-Laws.
When any Annual Meeting or special meeting of stockholders is
convened, the presiding officer may adjourn the meeting if (a) no quorum is
present for the transaction of business, (b) the Board of Directors determines
that adjournment is necessary or appropriate to enable the stockholders to
consider fully information which the Board of Directors determines has not been
made sufficiently or timely available to stockholders, or (c) the Board of
Directors
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determines that adjournment is otherwise in the best interests of the
Corporation. When any Annual Meeting or special meeting of stockholders is
adjourned to another hour, date or place, notice need not be given of the
adjourned meeting other than an announcement at the meeting at which the
adjournment is taken of the hour, date and place to which the meeting is
adjourned; provided, however, that 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 thereat and each stockholder who, by law or under the
Certificate of Incorporation or under these By-Laws, is entitled to such notice.
SECTION 6. Quorum. The holders of shares of voting stock
representing a majority of the voting power of the outstanding shares of voting
stock issued, outstanding and entitled to vote at a meeting of stockholders,
represented in person or by proxy at such meeting, shall constitute a quorum;
but if less than a quorum is present at a meeting, the holders of voting stock
representing a majority of the voting power present at the meeting or the
presiding officer may adjourn the meeting from time to time, and the meeting may
be held as adjourned without further notice, except as provided in Section 5 of
this Article I. At such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally noticed. The stockholders present at a duly constituted meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
SECTION 7. Voting and Proxies. Stockholders shall have one
vote for each share of stock entitled to vote owned by them of record according
to the books of the Corporation, unless otherwise provided by law or by the
Certificate of Incorporation. Stockholders may vote either in person or by
written proxy, but no proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. Proxies shall be filed
with the Secretary of the meeting before being voted. Except as otherwise
limited therein or as otherwise provided by law, proxies shall entitle the
persons authorized thereby to vote at any adjournment of such meeting. A proxy
with respect to stock held in the name of two or more persons shall be valid if
executed by or on behalf of any one of them unless at or prior to the exercise
of the proxy the Corporation receives a specific written notice to the contrary
from any one of them. A proxy purporting to be executed by or on behalf of a
stockholder shall be deemed valid, and the burden of proving invalidity shall
rest on the challenger.
SECTION 8. Action at Meeting. When a quorum is present, any
matter properly brought before any meeting of stockholders shall be decided by
the vote of a majority of the voting power of shares of voting stock present in
person or represented by proxy at such meeting and entitled to vote on such
matter, except where a larger vote is required by law, by the Certificate of
Incorporation or by these By-Laws. Any election of Directors by stockholders
shall be determined by a plurality of the votes cast, except where a larger vote
is required by law, by the Certificate of Incorporation or by these By-Laws. The
Corporation shall not directly or indirectly vote any shares of its own stock;
provided, however, that the Corporation may vote shares which it holds in a
fiduciary capacity to the extent permitted by law.
SECTION 9. Stockholder Lists. The Secretary (or the
Corporation's transfer agent or other person authorized by these By-Laws or by
law) shall prepare and make, at least 10 days before every Annual Meeting or
special meeting of stockholders, a complete list of the
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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
hour, date and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
SECTION 10. Presiding Officer. The Chairman of the Board or if
there is no Chairman of the Board, or in his absence, one of the Co-Chief
Executive Officers of the Corporation or the Chief Executive Officer of the
Corporation, if there is one, in their or his absence, such other officer as
shall be designated by the Board of Directors shall preside at all Annual
Meetings or special meetings of stockholders and shall have the power, among
other things, to adjourn such meeting at any time and from time to time, subject
to Sections 5 and 6 of this Article I. The order of business and all other
matters of procedure at any meeting of the stockholders shall be determined by
the presiding officer.
SECTION 11. Voting Procedures and Inspectors of Elections. The
Corporation shall, in advance of, or at, any meeting of stockholders, appoint
one or more inspectors to act at the meeting and make a written report thereof.
The Corporation may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the presiding officer shall appoint one or
more inspectors to act at the meeting. Any inspector may, but need not, be an
officer, employee or agent of the Corporation. Each inspector, before entering
upon the discharge of his duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall perform such duties as are
required by the General Corporation Law of the State of Delaware, as amended
from time to time, including the counting of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors. The presiding
officer may review all determinations made by the inspector(s), and in so doing
the presiding officer shall be entitled to exercise his or her sole judgment and
discretion and he or she shall not be bound by any determinations made by the
inspector(s). All determinations by the inspector(s) and, if applicable, the
presiding officer shall be subject to further review by any court of competent
jurisdiction.
SECTION 11. No Action by Written Consent. Any action required or
permitted to be taken by the stockholders of the Corporation must be effected at
a duly called annual or special meeting of the stockholders and may not be
effected by a consent in writing by any such stockholders.
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ARTICLE II
Directors
SECTION 1. Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors except as
otherwise provided by the Certificate of Incorporation or required by law.
SECTION 2. Number and Terms. The number of Directors
constituting the entire Board of Directors of the Corporation shall not be less
than 3 nor more than 12 as fixed by resolution duly adopted from time to time by
the Board of Directors.
Commencing on the effective time of the Merger, the Directors
shall be classified, with respect to the term for which they severally hold
office, into three classes, as nearly equal in number as possible. The initial
Class I, II and III Directors shall be appointed by the Board of Directors upon
the effective time of the Merger. The initial Class I Directors shall serve
until the first Annual Meeting after the Merger. The initial Class II Directors
shall serve until the second Annual Meeting after the Merger. The initial Class
III Directors shall serve until the third Annual Meeting after the Merger.
Members of each class shall hold office until their successors are duly elected
and qualified or until their earlier death, disqualification, resignation or
removal. At each succeeding Annual Meeting, the successors of the class of
Directors whose term expires at that meeting shall be elected by a plurality
vote of all votes cast at such meeting to hold office for a term expiring at the
Annual Meeting held in the third year following the year of their election.
SECTION 3. Director Nominations. Nominations of candidates for
election as Directors of the Corporation at any Annual Meeting may be made only
(a) by, or at the direction of, the Board of Directors or (b) by any holder of
record (both as of the time notice of such nomination is given by the
stockholder as set forth below and as of the record date for the Annual Meeting
in question) of any shares of the capital stock of the Corporation entitled to
vote for the election of Directors at such Annual Meeting who complies with the
timing, informational and other requirements set forth in this Section 3. Any
stockholder who seeks to make such a nomination or his representative must be
present in person at the Annual Meeting. Only persons nominated in accordance
with the procedures set forth in this Section 3 shall be eligible for election
as Directors at an Annual Meeting.
Nominations, other than those made by, or at the direction of,
the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation as set forth in this Section 3. For the first
Annual Meeting following the Merger, a stockholder's notice shall be timely if
delivered to, or mailed to and received by, the Corporation at its principal
executive office not later than the close of business on the later of (A) the
75th day prior to the scheduled date of such Annual Meeting or (B) the 15th day
following the day on which public announcement of the date of such Annual
Meeting is first made by the Corporation. For all subsequent Annual Meetings, a
stockholder's notice shall be timely if delivered to, or mailed to and received
by, the Corporation at its principal executive office not less than 75 days nor
more than 120 days prior to the Anniversary Date; provided, however, that in the
event the Annual Meeting is scheduled to be held on a date more than 30 days
before the Anniversary Date or more than 60 days after the Anniversary Date, a
stockholder's notice shall be timely if
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delivered to, or mailed and received by, the Corporation at its principal
executive office not later than the close of business on the later of (i) the
75th day prior to the scheduled date of such Annual Meeting or (ii) the 15th day
following the day on which public announcement of the date of such Annual
Meeting is first made by the Corporation.
A stockholder's notice to the Secretary shall set forth as to
each person whom the stockholder proposes to nominate for election or
re-election as a Director: (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) the class and number of shares of the Corporation's capital stock
which are beneficially owned by such person on the date of such stockholder
notice, (iv) the consent of each nominee to serve as a Director if elected, and
(v) such information concerning such person as is required to be disclosed
concerning a nominee for election as a Director of the Corporation pursuant to
the rules and regulations under the Exchange Act. A stockholder's notice to the
Secretary shall further set forth as to the stockholder giving such notice: (i)
the name and address, as they appear on the Corporation's stock transfer books,
of such stockholder and of the beneficial owners (if any) of the Corporation's
capital stock registered in such stockholder's name and the name and address of
other stockholders known by such stockholder to be supporting such nominee(s),
(ii) the class and number of shares of the Corporation's capital stock which are
held of record, beneficially owned or represented by proxy by such stockholder
and by any other stockholders known by such stockholder to be supporting such
nominee(s) on the record date for the Annual Meeting in question (if such date
shall then have been made publicly available) and on the date of such
stockholder's notice, and (iii) a description of all arrangements or
understandings between such stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by such stockholder or in connection therewith.
If the Board of Directors or a designated committee thereof
determines that any stockholder nomination was not timely made in accordance
with the terms of this Section 3 or that the information provided in a
stockholder's notice does not satisfy the informational requirements of this
Section 3 in any material respect, then such nomination shall not be considered
at the Annual Meeting in question. If neither the Board of Directors nor such
committee makes a determination as to whether a nomination was made in
accordance with the provisions of this Section 3, the presiding officer of the
Annual Meeting shall determine whether a nomination was made in accordance with
such provisions. If the presiding officer determines that any stockholder
nomination was not timely made in accordance with the terms of this Section 3 or
that the information provided in a stockholder's notice does not satisfy the
information requirements of this Section 3 in any material respect, then such
nomination shall not be considered at the Annual Meeting in question. If the
Board of Directors, a designated committee thereof or the presiding officer
determines that a nomination was made in accordance with the terms of this
Section 3, the presiding officer shall so declare at the Annual Meeting and such
nominee shall be eligible for election at the meeting.
No person shall be elected by the stockholders as a Director
of the Corporation unless nominated in accordance with the procedures set forth
in this Section. Election of Directors at the Annual Meeting need not be by
written ballot, unless otherwise provided by the Board of Directors or the
presiding officer at such Annual Meeting. If written ballots are to be used,
ballots bearing the names of all the persons who have been nominated for
election as
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Directors at the Annual Meeting in accordance with the procedures set forth in
this Section 3 shall be provided for use at the Annual Meeting.
SECTION 4. Qualification. No Director need be a stockholder of
the Corporation.
SECTION 5. Vacancies. Any and all vacancies occurring on the
Board of Directors, including, without limitation, any vacancy created by reason
of an increase in the number of Directors, or resulting from death, resignation,
disqualification, removal or any other cause, may be filled by the affirmative
vote of a majority of the remaining Directors then in office, even if such
remaining Directors constitute less than a quorum of the Board of Directors, or
if such vacancy is not so filled by the remaining Directors, by the stockholders
of the Corporation. Any Director appointed or elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
class of Directors in which the new directorship was created or the vacancy
occurred and until such Director's successor shall have been duly elected and
qualified or until his or her earlier death, disqualification, resignation or
removal. When the number of Directors is increased or decreased, the Board of
Directors shall determine the class or classes to which the increased or
decreased number of Directors shall be apportioned; provided, however, that no
decrease in the number of Directors shall shorten the term of any incumbent
Director unless such Director is removed as permitted in the Certificate of
Incorporation. In the event of a vacancy in the Board of Directors, the
remaining Directors, except as otherwise provided by law, may exercise the
powers of the full Board of Directors until the vacancy is filled.
SECTION 6. Removal. Directors may be removed from office in
the manner provided in the Certificate of Incorporation.
SECTION 7. Resignation. A Director may resign at any time by
giving written notice to the Corporation addressed to a Co-Chief Executive
Officer, the Chief Executive Officer of the Corporation, if there is one, or the
Secretary. A resignation shall be effective upon receipt, unless the resignation
otherwise provides, and need not be accepted by the Corporation.
SECTION 8. Regular Meetings. The regular annual meeting of the
Board of Directors shall be held, without notice other than this By-Law, on the
same date and at the same place as the Annual Meeting following the close of
such meeting of stockholders. Other regular meetings of the Board of Directors
may be held at such hour, date and place as the Board of Directors may by
resolution from time to time determine without notice other than such
resolution.
SECTION 9. Special Meetings. Special meetings of the Board of
Directors may be called, orally or in writing, by or at the request of a
majority of the Directors then in office or by one of the Co-Chief Executive
Officers of the Corporation or the Chief Executive Officer of the Corporation,
if there is one. The person calling any such special meeting of the Board of
Directors may fix the hour, date and place thereof.
SECTION 10. Notice of Meetings. Notice of the hour, date and
place of all special meetings of the Board of Directors shall be given to each
Director by the Secretary or the
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person calling such meeting, or in case of the death, absence, incapacity or
refusal of such person, by a Co-Chief Executive Officer of the Corporation, the
Chief Executive Officer of the Corporation, if there is one, or such other
officer as shall be designated by the Board of Directors. Notice of any special
meeting of the Board of Directors shall be given to each Director in person, by
telephone, or by telex, telegram, telecopy, e-mail or other written form of
electronic communication, sent to his business or home address, at least 24
hours in advance of the meeting, or by written notice sent by next-day delivery
courier service to his business or home address, at least 48 hours in advance of
the meeting. Such notice shall be deemed to be delivered when hand delivered to
such address, read to such Director by telephone, deposited in the mail so
addressed, with postage thereon prepaid if mailed, dispatched or transmitted if
telexed, telecopied, e-mailed or effected by another written form of electronic
communication, or when delivered to the telegraph company if sent by telegram.
When any Board of Directors meeting, either regular or
special, is adjourned for 30 days or more, notice of the adjourned meeting shall
be given as in the case of an original meeting. It shall not be necessary to
give any notice of the hour, date or place of any meeting adjourned for less
than 30 days or of the business to be transacted thereat, other than an
announcement at the meeting at which such adjournment is taken of the hour, date
and place to which the meeting is adjourned.
A written waiver of notice signed before or after a meeting by
a Director and filed with the records of the meeting shall be deemed to be
equivalent to notice of the meeting. The attendance of a Director at a meeting
shall constitute a waiver of notice of such meeting, except where a Director
attends a meeting for the express purpose of objecting at the beginning of the
meeting to the transaction of any business because such meeting is not lawfully
called or convened. Except as otherwise required by law, by the Certificate of
Incorporation or by these By-Laws, neither the business to be transacted at, nor
the purpose of, any meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
SECTION 11. Quorum. At any meeting of the Board of Directors,
a majority of the Directors then in office (but in no event less than one-third
of the entire Board of Directors) shall constitute a quorum for the transaction
of business, but if less than a quorum is present at a meeting, a majority of
the Directors present may adjourn the meeting from time to time, and the meeting
may be held as adjourned without further notice, except as provided in Section
10 of this Article II. Any business which might have been transacted at the
meeting as originally noticed may be transacted at such adjourned meeting at
which a quorum is present.
SECTION 12. Action at Meeting. At any meeting of the Board of
Directors at which a quorum is present, a majority of the Directors present may
take any action on behalf of the Board of Directors, unless otherwise required
by law, by the Certificate of Incorporation or by these By-Laws.
SECTION 13. Action by Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if all members of the Board of Directors consent thereto in
writing. Such written consent shall be filed with the records of the meetings of
the Board of Directors and shall be treated for all purposes as a vote at a
meeting of the Board of Directors.
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SECTION 14. Manner of Participation. Directors may participate
in meetings of the Board of Directors by means of conference telephone or
similar communications equipment by means of which all Directors participating
in the meeting can hear each other, and participation in a meeting in accordance
herewith shall constitute presence in person at such meeting for purposes of
these By-Laws.
SECTION 15. Committees. The Board of Directors, by vote of a
majority of the Directors then in office, may elect from its number, one or more
committees, including but not limited to, an Executive Committee, a Compensation
Committee and an Audit Committee, and may delegate thereto some or all of its
powers except those which by law, by the Certificate of Incorporation or by
these By-Laws may not be delegated. Except as the Board of Directors may
otherwise determine, any such committee may make rules for the conduct of its
business, but unless otherwise provided by the Board of Directors or in such
rules, its business shall be conducted so far as possible in the same manner as
is provided by these By-Laws for the Board of Directors. All members of such
committees shall hold such offices at the pleasure of the Board of Directors.
The Board of Directors may abolish any such committee at any time. Any committee
to which the Board of Directors delegates any of its powers or duties shall keep
records of its meetings and shall report its action to the Board of Directors.
The Board of Directors shall have power to rescind any action of any committee,
to the extent permitted by law, but no such rescission shall have retroactive
effect.
SECTION 16. Compensation of Directors. Directors shall receive
such compensation for their services as shall be determined by a majority of the
Directors then in office provided that Directors who are serving the Corporation
as employees and who receive compensation for their services as such, shall not
receive any salary or other compensation for their services as Directors of the
Corporation.
ARTICLE III
Officers
SECTION 1. Enumeration. The officers of the Corporation shall
consist of Co-Chief Executive Officers, a President, a Chief Operating Officer,
a Chief Financial Officer, a Secretary and such other officers, including,
without limitation, a Treasurer, a Chairman of the Board and one or more
Vice-Chairmen of the Board, Vice-Presidents (including Executive Vice Presidents
or Senior Vice Presidents), Assistant Vice Presidents, Assistant Treasurers and
Assistant Secretaries, as the Board of Directors may determine.
SECTION 2. Election. At the regular annual meeting of the
Board following the annual meeting of stockholders, the Board of Directors shall
elect the Co-Chief Executive Officers, the President, the Chief Operating
Officer, the Chief Financial Officer and the Secretary. Other officers may be
elected or appointed by the Board of Directors at such regular annual meeting of
the Board of Directors or at any other regular or special meeting.
SECTION 3. Qualification. No officer need be a stockholder or
a Director. Any person may occupy more than one office of the Corporation at any
time. Any officer may be required by the Board of Directors to give bond for the
faithful performance of his duties in such amount and with such sureties as the
Board of Directors may determine.
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SECTION 4. Tenure. Except as otherwise provided by the
Certificate of Incorporation or by these By-Laws, each of the officers of the
Corporation shall hold office until the regular annual meeting of the Board of
Directors following the next Annual Meeting and until his successor is elected
and qualified or until his earlier death, disqualification, resignation or
removal.
SECTION 5. Resignation. Any officer may resign by giving
written notice to the Corporation addressed to a Co-Chief Executive Officer or
the Secretary. A resignation shall be effective upon receipt unless the
resignation otherwise provides, and need not be accepted by the Corporation.
SECTION 6. Removal. Except as otherwise provided by law, the
Board of Directors may remove any officer with or without cause at any time.
SECTION 7. Absence or Disability. In the event of the absence
or disability of any officer, the Board of Directors may designate another
officer to act temporarily in place of such absent or disabled officer.
SECTION 8. Vacancies. Any vacancy in any office may be filled
for the unexpired portion of the term by the Board of Directors.
SECTION 9. Powers and Duties. Each of the officers of the
Corporation shall, unless otherwise ordered by the Board of Directors, have such
powers and duties as generally pertain to the officer's respective office as
well as such powers and duties as from time to time may be conferred upon the
officer by the Board of Directors.
ARTICLE IV
Capital Stock
SECTION 1. Certificates of Stock. Each stockholder shall be
entitled to a certificate of the capital stock of the Corporation in such form
as may from time to time be prescribed by the Board of Directors. Such
certificate shall be signed by the Chairman or Vice-Chairman of the Board or a
Co-Chief Executive Officer, the President, the Chief Operating Officer or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary. The corporate seal and the signatures by Corporation
officers, the transfer agent or the registrar may be facsimiles. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed on such 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 he were such officer, transfer
agent or registrar at the time of its issue. Every certificate for shares of
stock which are subject to any restriction on transfer and every certificate
issued when the Corporation is authorized to issue more than one class or series
of stock shall contain such legend with respect thereto as is required by law.
SECTION 2. Transfers. Subject to any restrictions on transfer
and unless otherwise provided by the Board of Directors, shares of stock may be
transferred only on the books of the Corporation by the surrender to the
Corporation or its transfer agent of the certificate theretofore properly
endorsed or accompanied by a written assignment or power of
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attorney properly executed, with transfer stamps (if necessary) affixed, and
with such proof of the authenticity of signature as the Corporation or its
transfer agent may reasonably require.
SECTION 3. Record Holders. Except as may otherwise be required
by law, by the Certificate of Incorporation or by these By-Laws, the Corporation
shall be entitled to treat the record holder of stock as shown on its books as
the owner of such stock for all purposes, including the payment of dividends and
the right to vote with respect thereto, regardless of any transfer, pledge or
other disposition of such stock, until the shares have been transferred on the
books of the Corporation in accordance with the requirements of these By-Laws.
It shall be the duty of each stockholder to notify the
Corporation of his or her post office address and any changes thereto.
SECTION 4. Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof or entitled to receive payments 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: (1) in the case of determination of stockholders entitled to
vote at any meeting of stockholders, shall, unless otherwise required by law,
not be more than sixty nor less than ten days before the date of such meeting,
and (2) in the case of any other action, shall not be more than sixty days prior
to such other action. If no record date is fixed: (1) 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 the meeting is held, and (2) 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.
ARTICLE V
Indemnification
The Corporation shall to the fullest extent permitted by
Delaware law, as in effect from time to time (but, in the case of any amendment
of the Delaware General Corporation Law, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), indemnify each
person who is or was a Director or officer of the Corporation (or any
predecessor) or of any of its wholly-owned subsidiaries who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, or was or is involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that such
Director or officer is or was a Director, officer, employee or agent of the
Corporation or of any of its subsidiaries, or is or was at any time serving, at
the request of the Corporation, any other corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against all expense, liability and loss (including,
but not limited to, attorneys' fees, judgments, fines, excise taxes or penalties
with respect to any employee benefit plan or otherwise, and amounts paid or to
be paid in settlement) incurred or
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suffered by such Director or officer in connection with such proceeding;
provided, however, that the Corporation shall not be obligated to indemnify any
person under this Article in connection with a proceeding (or part thereof) if
such proceeding (or part thereof) was initiated by such person, but was not
authorized by the Board of Directors of the Corporation against (i) the
Corporation or any of its subsidiaries, (ii) any person who is or was a
Director, officer, employee or agent of the Corporation or any of its
subsidiaries and/or (iii) any person or entity which is or was controlled,
controlled by or under common control with the Corporation or has or had
business relations with the Corporation or any of its subsidiaries.
Expenses incurred by a person who is or was a Director or
officer of the Corporation (or any predecessor) or any of its wholly-owned
subsidiaries in defending a proceeding shall be paid by the Corporation as they
are incurred in advance of the final disposition of such proceeding upon receipt
of an undertaking by or on behalf of such Director or officer to repay such
amount if it shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation. Such expenses incurred by former Directors or
officers may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
For purposes of this Article, the term "Corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed by the Corporation in a
consolidation or merger; the term "other enterprise" shall include, without
limitation, any corporation, partnership, joint venture, limited liability
company, trust or employee benefit plan; service "at the request of the
Corporation" shall include, without limitation, service as a Director, officer
or employee of the Corporation or of any of its subsidiaries which imposes
duties on, or involves service by, such Director, officer or employee with
respect to an employee benefit plan, its participants or beneficiaries; any
excise taxes assessed on a person with respect to an employee benefit plan shall
be deemed to be indemnifiable expenses; and action by a person with respect to
any employee benefit plan which such person reasonably believes to be in the
interest of the participants and beneficiaries of such plan shall be deemed to
be action in or not opposed to the best interests of the Corporation.
Notwithstanding any other provision of these By-laws, no
action by the Corporation, either by amendment to or repeal of this Article or
otherwise, shall diminish or adversely affect any right or protection granted
under this Article to any Director or officer or former Director or officer of
the Corporation (or any predecessor) or of any of its wholly-owned subsidiaries
which shall have become vested as aforesaid prior to the date that any such
amendment, repeal or other corporate action is taken.
ARTICLE VI
Miscellaneous Provisions
SECTION 1. Fiscal Year. Except as otherwise determined by the
Board of Directors, the fiscal year of the Corporation shall end on the last day
of December of each year.
SECTION 2. Seal. The Board of Directors shall have power to
adopt and alter the seal of the Corporation.
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SECTION 3. Execution of Instruments. All deeds, leases,
transfers, contracts, bonds, notes and other obligations to be entered into by
the Corporation in the ordinary course of its business without Board of
Directors action may be executed on behalf of the Corporation by the Chairman of
the Board, a Co-Chief Executive Officer, the Chief Executive Officer of the
Corporation, if there is one, the President, the Chief Operating Officer, the
Chief Financial Officer, any Vice President, or any other officer, employee or
agent of the Corporation as the Board of Directors may authorize.
SECTION 4. Voting of Securities. Unless otherwise ordered by
the Board of Directors, the Chairman of the Board, a Co-Chief Executive Officer,
the President, the Chief Operating Officer, the Chief Financial Officer, and any
Vice President each shall have full power and authority on behalf of the
Corporation to attend and to vote at any meeting of stockholders of any
corporation or other entity in which this Corporation may hold stock or an
ownership interest, and may exercise on behalf of this Corporation any and all
of the rights and powers incident to the ownership of such stock or ownership
interest at any such meeting and shall have power and authority to execute and
deliver proxies, waivers and consents on behalf of the Corporation in connection
with the exercise by the Corporation of the rights and powers incident to the
ownership of such stock or ownership interest. The Board of Directors, from time
to time, may confer like powers upon any other person or persons.
SECTION 5. Resident Agent. The Board of Directors may appoint
a resident agent upon whom legal process may be served in any action or
proceeding against the Corporation.
SECTION 6. Corporate Records. The original or attested copies
of the Certificate of Incorporation, By-Laws and records of all meetings of the
incorporators, stockholders and the Board of Directors (and committees thereof)
and the stock transfer books, which shall contain the names of all stockholders,
their record addresses and the number of shares of stock held by each, may be
kept outside the State of Delaware and shall be kept at the principal office of
the Corporation, at the office of its counsel or at an office of its transfer
agent or at such other place or places as may be designated from time to time by
the Board of Directors.
SECTION 7. Certificate of Incorporation. All references in
these By-Laws to the Certificate of Incorporation shall be deemed to refer to
the Certificate of Incorporation of the Corporation as in effect from time to
time (including all certificates and other instruments which are filed with the
Secretary of State of the State of Delaware pursuant to the provisions of the
Delaware General Corporation Law and which have the effect of amending or
supplementing in some respect the Certificate of Incorporation of the
Corporation).
SECTION 8. Amendment of By-Laws.
(a) Amendment by Directors. Except as provided otherwise by
law, these By-Laws may be amended or repealed or new By-Laws (not inconsistent
with any provision of law or the Certificate of Incorporation) may be adopted by
the Board of Directors.
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(b) Amendment by Stockholders. These By-Laws may be amended or
repealed at any Annual Meeting, or at any special meeting of stockholders called
for such purpose, by the affirmative vote of a majority of the total votes
eligible to be cast on such amendment or repeal by holders of voting stock,
voting together as a single class.
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