<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
NEOPHARM,INC.
- ------------------------------------------------------------------------------
(Exact Name of Issuer as Specified in its charter)
DELAWARE 51--0327886
- ------------------------------------------------------------------------------
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
100 CORPORATE NORTH, SUITE 215, BANNOCKBURN, ILLINOIS 60015
- -------------------------------------------------------------------------------
(Address of Principal Executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. / /
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. /X/
Securities Act registration statement file number to which this form relates:
not applicable (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $0.0002145 PAR VALUE PER SHARE
--------------------------------------------
(Title of Class)
<PAGE>
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. Description of Registrant's Securities to be Registered
COMMON STOCK
Our authorized capital consists of 15,000,000 shares of common
stock, par value $0.0002145 per share. At March 3, 2000, there were
11,047,487 shares of common stock outstanding held of record by 65
stockholders.
The holders of our common stock are entitled to one vote for each
share held of record on all matters submitted to a vote of the
stockholders. Subject to any outstanding preferred stock preference,
the holders of our common stock are entitled to receive ratably the
dividends, if any, that may be declared from time to time by our
board of directors out of funds legally available for such
dividends. We have never declared a dividend and do not anticipate
doing so. Subject to any outstanding preferred stock preference, in
the event of a liquidation, dissolution or winding up of us, the
holders of common stock are entitled to share ratably in all assets
remaining after payment of liabilities. Holders of our common stock
have no preemptive rights and no right to convert their common stock
into any other securities. There are no redemption or sinking fund
provisions applicable to the common stock. All the outstanding
shares of our common stock are validly issued, fully paid and
nonassessable.
Item 2. Exhibits
The following exhibits are being filed as part of the Registration
Statement.
1. The Company's Certificate of Incorporation, as amended;
2. The Company's By-laws, as amended.
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.
(Registrant) NEOPHARM, INC.
---------------------------------------------------------------
Date APRIL 11, 2000
-----------------------------------------------------------------------
By /s/ JAMES M. HUSSEY, PRESIDENT
--------------------------------------------------------------------------
James M. Hussey, President
*Print the name and title of the signing officer under his signature.
<PAGE>
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
----------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF
"NEOPHARM, INC." AS RECEIVED AND FILED IN THIS OFFICE.
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF INCORPORATION, FILED THE FIFTEENTH DAY OF JUNE, A.D. 1990,
AT 10 O'CLOCK A.M.
CERTIFICATE OF AMENDMENT, FILED THE THIRD DAY OF OCTOBER, A.D. 1990, AT
3:30 O'CLOCK P.M.
CERTIFICATE OF AMENDMENT, FILED THE TWENTY-FOURTH DAY OF JANUARY, A.D.
1995, AT 12 O'CLOCK P.M.
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "ONCOMED INC." TO
"NEOPHARM, INC.", FILED THE TENTH DAY OF MARCH, A.D. 1995, AT 1 O'CLOCK P.M.
CERTIFICATE OF AMENDMENT, FILED THE FOURTH DAY OF OCTOBER, A.D. 1995, AT 2
O'CLOCK P.M.
CERTIFICATE OF AMENDMENT, FILED THE SIXTH DAY OF NOVEMBER, A.D. 1996, AT 4
O'CLOCK P.M.
/s/ EDWARD J. FREEL
-----------------------------------
EDWARD J. FREEL, SECRETARY OF STATE
AUTHENTICATION: 0283553
DATE: 02-28-00
<PAGE>
CERTIFICATE OF INCORPORATION
OF
ONCOMED INC.
FIRST: The name of the Corporation is ONCOMED INC.
SECOND: The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of
New Castle. The name of the Corporation's registered agent at such address is
The Corporation Trust 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 Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is one thousand (1,000) shares of
common stock with no par value.
FIFTH: The name and mailing address of the incorporator of the
Corporation is as follows:
NAME ADDRESS
---- -------
Lyn C. Conniff c/o Shefsky & Froelich Ltd.
444 North Michigan Avenue
Suite 2300
Chicago, Illinois 60611
SIXTH: Elections of directors need not be by written ballot unless the
by-laws of the Corporation so provide.
SEVENTH: At all elections for directors, every registered owner of shares
entitled to vote may vote in person or by proxy and shall have one vote for each
such share standing in his name on the books of the Corporation.
EIGHTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
the stockholders herein are granted subject to this reservation.
NINTH: In furtherance and not in limitation of the powers conferred by
statute, the board of directors of the Corporation is expressly authorized to
make, alter or repeal the by-laws of the
<PAGE>
Corporation, subject to restrictions imposed under any applicable stockholder
agreement.
TENTH: Each person who is or was a director or officer of the Corporation,
and each person who serves or served at the request of the corporation as a
director or officer of another enterprise, shall be indemnified by the
Corporation in accordance with and to the fullest extent authorized by the
General Corporation Law of Delaware as it may be in effect from time to time.
ELEVENTH: 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 an improper
personal benefit. If, after approval of this Article by the stockholders of the
Corporation, the Delaware General corporation Law is amended to authorize the
further elimination or limitation of the liability of directors, 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.
Any repeal or modification of this Article Eleventh by the stockholders of
the Corporation shall not adversely affect any right or protection of a director
of the Corporation existing at the time of such repeal or modification.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose
of forming a corporation pursuant to the General Corporation Law of Delaware,
makes this certificate of Incorporation, hereby declaring and certifying that
the facts herein stated are true, and accordingly, has hereunto set her hand
this 14th day of June, 1990.
/s/ Lyn C. Conniff
----------------------------------
Lyn C. Conniff, Incorporator
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF ONCOMED INC.
ONCOMED INC. (the "Corporation"), a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify that:
FIRST: The Board of Directors of the Corporation, by unanimous written
consent, adopted a resolution proposing and declaring advisable the
following amendment to the certificate of Incorporation of the Corporation:
RESOLVED, that the Certificate of Incorporation of the
Corporation be amended by changing the FOURTH ARTICLE thereof
so that, as amended, ARTICLE FOURTH shall be and read as
follows:
"ARTICLE FOURTH: Each of the previously authorized
One Thousand (1,000) shares of common stock of the
Corporation of no par value is split-up and converted
into Three Thousand (3,000) shares of common stock
with a par value of One Tenth of One Cent ($0.001),
and the total number of shares of all classes which
the Corporation shall have authority to issue is
Three Million (3,000,000) shares of common stock with
a par value of One Tenth of One Cent ($0.001)."
SECOND: That the stockholder of the Corporation has given written consent
to the foregoing amendment to the Certificate of Incorporation in accordance
with the provisions of Section 228 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by Dr. John Kapoor, its Vice President and attested by Robert J.
Sullivan, its Secretary, this 19th day of September, 1990.
ONCOMED, INC.
/s/ John Kapoor
----------------------------------
By: John Kapoor, Vice President
Attest:
By: /s/ Robert J. Sullivan
-------------------------------
Robert J. Sullivan, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ONCOMED INC.
ONCOMED INC. (the "Corporation"), a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify that:
FIRST: The Board of Directors of the Corporation, by UNANIMOUS consent,
adopted a resolution proposing and declaring advisable the following
amendment to the Certificate of Incorporation of the Corporation:
RESOLVED, that the Certificate of Incorporation be amended by changing
the FOURTH ARTICLE thereof so that, as amended, ARTICLE FOURTH shall
be stated in its entirety as follows:
"ARTICLE FOURTH: This Corporation is authorized to issue Fifteen
Million (15,000,000) shares of Common Stock with a par value of
$0.000333 per share."
SECOND: That the stockholders of the Corporation have given written consent
to the foregoing amendment to the Certificate of Incorporation in
accordance with the provisions of Section 228 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate
to be signed by William Govier, its President and attested by Mahendra Shah,
its Secretary, this 17th day of January, 1995.
ONCOMED INC.
/s/ William Govier
--------------------------
By: William Govier, President
Attest:
By: /s/ Mahendra Shah
------------------------
Mahendra Shah, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
OF ONCOMED INC.
ONCOMED INC. (the "Corporation"), a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify that:
FIRST: That the meeting of the Board of Directors of the Corporation,
resolutions were adopted declaring advisable the following amendment to the
Certificate of Incorporation of the Corporation:
RESOLVED, that the Certificate of Incorporation of this Corporation be
amended by changing the FIRST ARTICLE thereof so that, as amended,
ARTICLE FIRST shall be stated in its entirety as follows:
"FIRST: The name of the Corporation is NEOPHARM, INC."
SECOND: That the stockholders of the Corporation have given written consent
to the foregoing amendment to the Certificate of Incorporation in
accordance with the provisions of Sections 228 and 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate
to be signed by William Govier, its President and attested by Christopher D.
Mitchell, its Assistant Secretary, this 8th day of March, 1995.
ONCOMED INC.
/s/ William Govier
---------------------------
By: William Govier, President
Attest:
By: /s/ Christopher D. Mitchell
--------------------------------------------
Christopher D. Mitchell, Assistant Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NEOPHARM, INC.
NEOPHARM, INC. (the "Corporation"), a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify that:
FIRST: The Board of Directors of the Corporation, by unanimous written
consent, adopted a resolution proposing and declaring advisable the
following amendment to the Certificate of Incorporation of the Corporation:
RESOLVED, that the Certificate of Incorporation be amended by changing
the FOURTH ARTICLE thereof so that, as amended, ARTICLE FOURTH shall
be stated in its entirety as follows:
"ARTICLE FOURTH: This Corporation is authorized to issue Fifteen
Million (15,000,000) shares of Common Stock with a par value of
$0.000429 per share."
SECOND: Upon the effective date of the filing of this certificate of
Amendment, each outstanding 1.28681 shares of Common Stock of the
Corporation, with a par value of $0.000333 per share, shall be converted
into one (1) share of Common Stock of the Corporation, with a par value of
$0.000429 per share.
THIRD: That the stockholders of the Corporation have given written consent
to the foregoing amendment to the Certificate of Incorporation in
accordance with the provisions of Sections 228 and 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be signed by Timothy R. Kelly its Chief Financial Officer and
attested by Mahendra Shah, its Secretary, this 3rd day of October, 1995.
NEOPHARM, INC.
/s/ Timothy R. Kelly
--------------------------
By: Timothy R. Kelly,
Chief Financial Officer
Attest:
By: /s/ Mahendra Shah
---------------------------------
Mahendra Shah, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NEOPHARM, INC.
NEOPHARM, INC. (the "Corporation), a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify that:
FIRST: The Board of Directors of the Corporation adopted a resolution
proposing and declaring advisable the following amendment to the
Certificate of Incorporation of the Corporation:
RESOLVED, that the Certificate of Incorporation be amended by changing
the FOURTH ARTICLE thereof so that, as amended, ARTICLE FOURTH shall
be stated in its entirety as follows:
"ARTICLE FOURTH: This Corporation is authorized to issue
Fifteen Million (15,000,000) shares of Common Stock with a
par value of $0.0002145 per share."
SECOND: Each outstanding share of Common Stock of the Corporation, with
a par value of $0.000429 per share, shall be converted into two (2)
shares of Common Stock of the Corporation, with a par value of
$0.0002145 per share.
THIRD: That holders of a majority of the issued and outstanding shares
of the Corporation's Common Stock have given written consent to the
foregoing amendment to the Certificate of Incorporation in accordance
with the provisions of Sections 228 and 242 of the General Corporation
Law of the State of Delaware.
FOURTH: Written notice of this Amendment has been given to those
stockholders of the Corporation who did not consent in writing to this
Amendment.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by William Govier, M.D., its President and attested by David E. Riggs,
its Secretary, this 5th day of November, 1996.
NEOPHARM, INC.
/s/ William Govier
-----------------------------------
By: William Govier, M.D., President
Attest:
By: /s/ David E. Riggs
-----------------------------
David E. Riggs, Secretary
<PAGE>
BY-LAWS
OF
NEOPHARM, INC.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE I CORPORATE OFFICES.......................................................1
1.1 REGISTERED OFFICE.......................................................1
1.2 OTHER OFFICES...........................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS................................................1
2.1 PLACE OF MEETINGS.......................................................1
2.2 ANNUAL MEETING..........................................................1
2.3 SPECIAL MEETING.........................................................1
2.4 NOTICE OF STOCKHOLDERS' MEETINGS........................................2
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE............................2
2.6 QUORUM..................................................................2
2.7 ADJOURNED MEETING; NOTICE...............................................3
2.8 VOTING..................................................................3
2.9 WAIVER OF NOTICE........................................................3
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT
A MEETING...............................................................3
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING;
GIVING CONSENTS.........................................................4
2.12 PROXIES.................................................................4
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE...................................5
ARTICLE III DIRECTORS...............................................................5
3.1 POWERS..................................................................5
3.2 NUMBER OF DIRECTORS.....................................................5
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS.................6
3.4 RESIGNATION AND VACANCIES...............................................6
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE................................7
3.6 FIRST MEETINGS..........................................................7
3.7 REGULAR MEETINGS........................................................7
3.8 SPECIAL MEETINGS; NOTICE................................................7
3.9 QUORUM..................................................................8
3.10 WAIVER OF NOTICE........................................................8
3.11 ADJOURNED MEETING; NOTICE...............................................8
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.......................9
3.13 FEES AND COMPENSATION OF DIRECTORS......................................9
3.14 APPROVAL OF LOANS TO OFFICERS...........................................9
i
<PAGE>
3.15 REMOVAL OF DIRECTORS....................................................9
ARTICLE IV COMMITTEES..............................................................9
4.1 COMMITTEES OF DIRECTORS.................................................9
4.2 COMMITTEE MINUTES......................................................10
4.3 MEETINGS AND ACTION OF COMMITTEES......................................10
ARTICLE V OFFICERS...............................................................11
5.l OFFICERS...............................................................11
5.2 ELECTION OF OFFICERS...................................................11
5.3 SUBORDINATE OFFICERS...................................................11
5.4 REMOVAL AND RESIGNATION OF OFFICERS....................................11
5.5 VACANCIES IN OFFICES...................................................11
5.6 CHAIRMAN OF THE BOARD..................................................12
5.7 PRESIDENT..............................................................12
5.8 VICE PRESIDENT.........................................................12
5.9 SECRETARY..............................................................12
5.10 TREASURER..............................................................13
5.11 ASSISTANT SECRETARY....................................................13
5.12 ASSISTANT TREASURER....................................................13
5.13 AUTHORITY AND DUTIES OF OFFICERS.......................................13
ARTICLE VI INDEMNITY..............................................................14
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS..............................14
6.2 INDEMNIFICATION OF OTHERS..............................................14
6.3 INSURANCE..............................................................14
ARTICLE VII RECORDS AND REPORTS....................................................15
7.1 MAINTENANCE AND INSPECTION OF RECORDS..................................15
7.2 INSPECTION BY DIRECTORS................................................15
7.3 ANNUAL STATEMENT TO STOCKHOLDERS.......................................16
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS.........................16
ARTICLE VIII GENERAL MATTERS........................................................16
8.1 CHECKS.................................................................16
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS.......................16
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES.................................16
8.4 SPECIAL DESIGNATION ON CERTIFICATES....................................17
8.5 LOST CERTIFICATES......................................................17
8.6 CONSTRUCTION; DEFINITIONS..............................................17
ii
<PAGE>
8.7 DIVIDENDS..............................................................18
8.8 FISCAL YEAR............................................................18
8.9 SEAL...................................................................18
8.10 TRANSFER OF STOCK......................................................18
8.11 STOCK TRANSFER AGREEMENTS..............................................18
8.12 REGISTERED STOCKHOLDERS................................................18
ARTICLE IX AMENDMENTS.............................................................19
ARTICLE X DISSOLUTION............................................................19
ARTICLE XI CUSTODIAN..............................................................20
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES............................20
11.2 DUTIES OF CUSTODIAN....................................................20
</TABLE>
iii
<PAGE>
BY-LAWS
OF
NEOPHARM, INC.
(AS AMENDED THROUGH JUNE 10, 1999)
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE
The registered office of the corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware. The name of the
registered agent of the corporation at such location is Corporation Trust
Center.
1.2 OTHER OFFICES
The board of directors may at any time establish other offices at any
place or places where the corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place, within or outside
the State of Delaware, designated by the board of directors. In the absence
of any such designation, stockholders' meetings shall be held at the
registered office of the corporation.
2.2 ANNUAL MEETING
The annual meeting of stockholders shall be held each year on a date
and at a time designated by the board of directors. In the absence of such
designation, the annual meeting of stockholders shall be held on the 18th of
June in each year at 10:00 a.m. However, if such day falls on a legal
holiday, then the meeting shall be held at the same time and place on the
next succeeding full business day. At the meeting, directors shall be elected
and any other proper business may be transacted.
2.3 SPECIAL MEETING
A special meeting of the stockholders may be called at any time by the
board of directors, or by the chairman of the board, or by the president, or
by one or more of the stockholders holding
<PAGE>
shares in the aggregate entitled to cast not less than ten percent of the
votes at the meeting.
If a special meeting is called by any person or persons other than the
board of directors, the request shall be in writing, specifying the time of
such meeting and the general nature of the business proposed to be
transacted, and shall be delivered personally or sent by registered mail or
by telegraphic or other facsimile transmission to the chairman of the board,
the president or the secretary of the corporation. No business may be
transacted at such special meeting otherwise than specified in such notice.
The officer receiving the request shall cause notice to be promptly given to
the stockholders entitled to vote, in accordance with the provisions of
Sections 2.4 and 2.5 of this Article II, that a meeting will be held at the
time requested by the person or persons calling the meeting, not less than
ten (10) nor more than sixty (60) days after the receipt of the request.
Nothing contained in this paragraph of this Section 2.3 shall be construed as
limiting, fixing, or affecting the time when a meeting of stockholders called
by action of the board of directors may be held.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS
All notices of meetings with stockholders shall be in writing and
shall be sent or otherwise given in accordance with Section 2.5 of these
bylaws not less than ten (10) nor more than sixty (60) days before the date
of the meeting to each stockholder entitled to vote at such meeting. The
notice shall specify the place, date, and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders, if mailed, is given
when deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the corporation.
An affidavit of the secretary or an assistant secretary or of the transfer
agent of the corporation that the notice has been given shall, in the absence
of fraud, be prima facie evidence of the facts stated therein.
2.6 QUORUM
The holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction
of business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum is not present or represented at any
meeting of the stockholders, then the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum is present or represented. At such adjourned meeting
at which a quorum is present or represented, any business may be transacted
that might have been transacted at the meeting as originally noticed.
2
<PAGE>
2.7 ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time or place, unless these
bylaws otherwise require, notice need not be given of the 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 that might have been transacted at the original meeting. If the
adjournment is for more than thirty (30) days, or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
2.8 VOTING
The stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of Section 2.11 of these
bylaws, subject to the provisions of Sections 217 and 218 of the General
Corporation Law of Delaware (relating to voting rights of fiduciaries,
pledgers and joint owners of stock and to voting trusts and other voting
agreements).
Except as may otherwise be provided in the certificate of
incorporation, each stockholder shall be entitled to one vote for each share
of capital stock held by such stockholder.
2.9 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the
General Corporation Law of Delaware or of the certificate of incorporation or
these bylaws, a written waiver thereof, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in any
written waiver of notice unless so required by the certificate of
incorporation or these bylaws.
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless otherwise provided in the certificate of incorporation, any
action required by this chapter to be taken at any annual or special meeting
of stockholders of a corporation, or any action that may be taken at any
annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice, and without a vote if a consent in writing,
setting forth the action so taken, is signed by the holders of outstanding
stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders
who have not consented in writing. If the action which is consented to is
such as would have required the filing of a certificate under any section of
3
<PAGE>
the General Corporation Law of Delaware if such action had been voted on by
stockholders at a meeting thereof, then the certificate filed under such
section shall state, in lieu of any statement required by such section
concerning any vote of stockholders, that written notice and written consent
have been given as provided in Section 228 of the General Corporation Law of
Delaware.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
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 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, in advance, a
record date, which shall not be more than sixty (60) nor less than ten (10)
days before the date of such meeting, nor more than sixty (60) days prior to
any other action.
If the board of directors does not so fix a record date:
(i) 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.
(ii) The record date for determining stockholders entitled
to express consent to corporate action in writing without a meeting, when no
prior action by the board of directors is necessary, shall be the day on
which the first written consent is expressed.
(iii) 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.
2.12 PROXIES
Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting
may authorize another person or persons to act for him by a written proxy,
signed by the stockholder and filed with the secretary of the corporation,
but no such proxy shall be voted or acted upon after seven (7) years from its
date, unless the proxy provides for a longer period. A proxy shall be deemed
signed if the stockholder's name is placed on the proxy (whether by manual
signature, typewriting, telegraphic transmission or otherwise) by the
stockholder or the stockholder's attorney-in-fact. The revocability of a
proxy that states on its face that it is irrevocable shall be governed by the
provisions of Section 212(c) of the General
4
<PAGE>
Corporation Law of Delaware.
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of a corporation shall
prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the 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 ten (10) days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The 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.
ARTICLE III
DIRECTORS
3.1 POWERS
Subject to the provisions of the General Corporation Law of Delaware
and any limitations in the certificate of incorporation or these bylaws
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.
3.2 NUMBER OF DIRECTORS
The authorized number of directors shall be five (5). This number may
be changed by a duly adopted amendment to the certificate of incorporation or
by an amendment to this bylaw adopted by the vote or written consent of the
holders of a majority of the stock issued and outstanding and entitled to
vote or by resolution of the board of directors.
No reduction of the authorized number of directors shall have the
effect of removing any director before that director's term of office expires.
5
<PAGE>
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
Except as provided in Section 3.4 of these bylaws, directors shall
be elected at each annual meeting of stockholders to hold office until the
next annual meeting. Directors need not be stockholders unless so required by
the certificate of incorporation or these bylaws, wherein other
qualifications for directors may be prescribed. Each director, including a
director elected to fill a vacancy, shall hold office until his successor is
elected and qualified or until his earlier resignation or removal.
Elections of directors need not be by written ballot.
3.4 RESIGNATION AND VACANCIES
Any director may resign at any time upon written notice to the
corporation. When one or more directors so resigns and the resignation is
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided in this section in the filling of other vacancies.
Unless otherwise provided in the certificate of incorporation or
these bylaws:
(i) Vacancies and newly created directorships resulting
from any increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by
a sole remaining director.
(ii) Whenever the holders of any class or classes of
stock or series thereof are entitled to elect one or more directors by the
provisions of the certificate of incorporation, vacancies and newly created
directorships of such class or classes or series may be filled by a majority
of the directors elected by such class or classes or series thereof then in
office, or by a sole remaining director so elected.
If at any time, by reason of death or resignation or other cause,
the corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a
stockholder, or other fiduciary entrusted with like responsibility for the
person or estate of a stockholder, may call a special meeting of stockholders
in accordance with the provisions of the certificate of incorporation or
these bylaws, or may apply to the Court of Chancery for a decree summarily
ordering an election as provided in Section 211 of the General Corporation
Law of Delaware.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), then
the Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten (10) percent of the total number of the shares at the time
outstanding having the
6
<PAGE>
right to vote for such directors, summarily order an election to be held to
fill any such vacancies or newly created directorships, or to replace the
directors chosen by the directors then in office as aforesaid, which election
shall be governed by the provisions of Section 211 of the General Corporation
Law of Delaware as far as applicable.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
The board of directors of the corporation may hold meetings, both
regular and special, either within or outside the State of Delaware.
Unless otherwise restricted by the certificate of incorporation or
these bylaws, members of the board of directors, or any committee designated
by the board of directors, may participate in a meeting of the board of
directors, or any committee, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
3.6 FIRST MEETINGS
The first meeting of each newly elected board of directors shall be
held at such time and place as shall be fixed by the vote of the stockholders
at the annual meeting and no notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting, provided
a quorum shall be present. In the event of the failure of the stockholders to
fix the time or place of such first meeting of the newly elected board of
directors, or in the event such meeting is not held at the time and place so
fixed by the stockholders, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the board of directors, or as shall be specified in a written
waiver signed by all of the directors.
3.7 REGULAR MEETINGS
Regular meetings of the board of directors may be held without
notice at such time and at such place as shall from time to time be
determined by the board.
3.8 SPECIAL MEETINGS; NOTICE
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, any vice president, the secretary or any two (2) directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at that director's address
as it is shown on the records of the corporation. If the notice is mailed, it
shall be deposited in the United States mail at least four (4) days before the
time of the holding of the meeting. If the notice is delivered personally or by
telephone or by telegram, it shall be delivered personally or by telephone or to
the telegraph company at least forty-eight (48) hours before the time of the
holding of the meeting. Any oral notice given personally or by telephone may be
7
<PAGE>
communicated either to the director or to a person at the office of the
director who the person giving the notice has reason to believe will promptly
communicate it to the director. The notice need not specify the purpose or
the place of the meeting, if the meeting is to be held at the principal
executive office of the corporation.
3.9 QUORUM
At all meetings of the board of directors, a majority of the
authorized number of directors shall constitute a quorum for the transaction
of business and the act of a majority of the directors present at any meeting
at which there is a quorum shall be the act of the board of directors, except
as may be otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum is not present at any meeting of the board of
directors, then the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum is present.
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 that
meeting.
3.10 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the
General Corporation Law of Delaware or of the certificate of incorporation or
these bylaws, a written waiver thereof, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the directors, or members of a committee of
directors, need be specified in any written waiver of notice unless so
required by the certificate of incorporation or these bylaws.
3.11 ADJOURNED MEETING; NOTICE
If a quorum is not present at any meeting of the board of directors,
then the directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum is
present
8
<PAGE>
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless otherwise restricted by the certificate of incorporation or
these bylaws, any action required or permitted to be taken at any meeting of
the board of directors, or of any committee thereof, may be taken without a
meeting if all members of the board or committee, as the case may be, consent
thereto in writing and the writing or writings are filed with the minutes of
proceedings of the board or committee.
3.13 FEES AND COMPENSATION OF DIRECTORS
Unless otherwise restricted by the certificate of incorporation or
these bylaws, the board of directors shall have the authority to fix the
compensation of directors.
3.14 APPROVAL OF LOANS TO OFFICERS
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 subsidiary, including any officer or employee who is a director of the
corporation or its subsidiary, whenever, in the judgment of the directors,
such loan, guaranty or assistance may reasonably be expected to benefit the
corporation. The loan, guaranty 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 this section contained shall be deemed
to deny, limit or restrict the powers of guaranty or warranty of the
corporation at common law or under any statute.
3.15 REMOVAL OF DIRECTORS
Unless otherwise restricted by statute, by the certificate of
incorporation or by these bylaws, any director or the entire board of
directors may be removed, with or without cause, by the holders of a majority
of the shares then entitled to vote at an election of directors.
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of such director's
term of office.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The board of directors may, by resolution passed by a majority of
the whole board, designate one or more committees, with each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously
9
<PAGE>
appoint another member of the board of directors to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the board of directors or in the bylaws
of the corporation, shall have and may exercise all the powers and authority
of the board of directors in the management of the business and affairs of
the corporation, and may authorize the seal of the corporation to be affixed
to all papers that may require it; but no such committee shall have the power
or authority to (i) amend the certificate of incorporation (except that a
committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of
directors as provided in Section 151(a) of the General Corporation Law of
Delaware, fix any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of such shares for,
shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation), (ii) adopt an agreement
of merger or consolidation under Sections 251 or 252 of the General
Corporation Law of Delaware, (iii) recommend to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property
and assets, (iv) recommend to the stockholders a dissolution of the
corporation or a revocation of a dissolution, or (v) amend the bylaws of the
corporation; and, unless the board resolution establishing the committee, the
bylaws or the certificate of incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend, to
authorize the issuance of stock, or to adopt a certificate of ownership and
merger pursuant to Section 253 of the General Corporation Law of Delaware.
4.2 COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report
the same to the board of directors when required.
4.3 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and held
and taken in accordance with, the provisions of Article III of these bylaws,
Section 3.5 (place of meetings and meetings by telephone), Section 3.7
(regular meetings), Section 3.8 (special meetings and notice), Section 3.9
(quorum), Section 3.10 (waiver of notice), Section 3.11 (adjournment and
notice of adjournment), and Section 3.12 (action without a meeting), with
such changes in the context of those bylaws as are necessary to substitute
the committee and its members for the board of directors and its members;
provided, however, that the time of regular meetings of committees may also
be called by resolution of the board of directors and that notice of special
meetings of committees shall also be given to all alternate members, who
shall have the right to attend all meetings of the committee. The board of
directors may adopt rules for the government of any committee not
inconsistent with the provisions of these bylaws.
10
<PAGE>
ARTICLE V
OFFICERS
5.1 OFFICERS
The officers the corporation shall be a president, one or more vice
presidents, 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 assistant vice presidents, assistant secretaries, assistant treasurers,
and any such other officers as may be appointed in accordance with the
provisions of Section 5.3 of these bylaws. Any number of offices may be held
by the same person.
5.2 ELECTION OF OFFICERS
The officers of the corporation, except such officers as may be
appointed in accordance with the provisions of Sections 5.3 or 5.5 of these
bylaws, shall be chosen by the board of directors, subject to the rights, if
any, of an officer under any contract of employment.
5.3 SUBORDINATE OFFICERS
The board of directors may appoint, or empower the president to
appoint, such other officers and agents 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.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without cause, by an
affirmative vote of the majority of the board of directors at any regular or
special meeting of the board 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 officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless
otherwise specified in that notice, the acceptance of the resignation shall
not be necessary to make it effective. Any resignation is without prejudice
to the rights, if any, of the corporation under any contract to which the
officer is a party.
5.5 VACANCIES IN OFFICES
Any vacancy occurring in any office of the corporation shall be
filled by the board of directors.
11
<PAGE>
5.6 CHAIRMAN OF THE BOARD
The chairman of the board, if such an officer be elected, shall, if
present, preside at meetings of the board of directors and exercise and
perform such other powers and duties as may from time to time be assigned to
him by the board of directors or as may be prescribed by these bylaws. If
there is no president, then the chairman of the board shall also be the chief
executive officer of the corporation and shall have the powers and duties
prescribed in Section 5.7 of these bylaws.
5.7 PRESIDENT
Subject to such supervisory 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 shall be the chief executive officer of the corporation and
shall, subject to the control of the board of directors, have general
supervision, direction, and control of the business and the officers of the
corporation. He shall preside at all meetings of the shareholders and, in the
absence or nonexistence of a chairman of the board, at all meetings of the
board of directors. He shall have the general powers and duties of management
usually vested in the office of president of a corporation and shall have
such other powers and duties as may be prescribed by the board of directors
or these bylaws.
5.8 VICE PRESIDENT
In the absence or disability of the president, the vice presidents,
if any, in order of their rank as fixed by the board of directors or, if not
ranked, a 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, these bylaws, the president or the chairman of the board.
5.9 SECRETARY
The secretary shall keep or cause to be kept, at the principal
executive office of the corporation or such other place as the board of
directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors, and shareholders. The minutes shall show
the time and place of each meeting, whether regular or special (and, if
special, how authorized and the notice given), the names of those present at
directors' meetings or committee meetings, the number of shares present or
represented at shareholders' meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the corporation's
transfer agent or registrar, as determined by resolution of the board of
directors, a share register, or a duplicate share register, showing the names
of all shareholders and their addresses, the number and classes of shares
held by each, the number and date of certificates evidencing such shares, 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 shareholders and of the board of directors required to be given by law or
by these bylaws. He shall keep' the seal of the corporation, if one be adopted,
in safe custody and shall have such other powers and perform
12
<PAGE>
such other duties as may be prescribed by the board of directors or by these
bylaws.
5.10 TREASURER
The treasurer shall keep and maintain, or cause to be kept and
maintained, adequate and correct books and records of accounts of the
properties and business transactions of the corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings, and shares. The books of account shall at all reasonable
times be open to inspection by any director.
The treasurer shall deposit all money 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. He shall disburse the funds of the
corporation as may be ordered by the board of directors, shall render to the
president and directors, whenever they request it, an account of all of his
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 or these bylaws.
5.11 ASSISTANT SECRETARY
The assistant secretary, or, if there is more than one, the
assistant secretaries in the order determined by the stockholders or board of
directors (or if there be no such determination, then in the order of their
election) shall, in the 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 or the stockholders may from time to time
prescribe.
5.12 ASSISTANT TREASURER
The assistant treasurer, or, if there is more than one, the
assistant treasurers, in the order determined by the stockholders or board of
directors (or if there be no such determination, then in the order of their
election), shall, in the 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 or the stockholders may from time to time
prescribe.
5.13 AUTHORITY AND DUTIES OF OFFICERS
In addition to the foregoing authority and duties, all officers of
the corporation shall respectively have such authority and perform such
duties in the management of the business of the corporation as may be
designated from time to time by the board of directors or the stockholders.
13
<PAGE>
ARTICLE VI
INDEMNITY
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the manner
permitted by the General Corporation Law of Delaware, indemnify each of its
directors and officers against expenses (including attorneys' fees),
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding, arising by reason of the fact
that such person is or was an agent of the corporation. For purposes of this
Section 6.1, a "director" or "officer" of the corporation includes any person
(i) who is or was a director or officer of the corporation, (ii) who is or
was serving at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise,
or (iii) who was a director or officer of a corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation.
6.2 INDEMNIFICATION OF OTHERS
The corporation shall have the power, to the extent and in the
manner permitted by the General Corporation Law of Delaware, to indemnify
each of its employees and agents (other than directors and officers) against
expenses (including attorneys' fees), judgments, fines, settlements, and
other amounts actually and reasonably incurred in connection with any
proceeding, arising by reason of the fact that such person is or was an agent
of the corporation. For purposes of this Section 6.2, an "employee" or
"agent" of the corporation (other than a director or officer) includes any
person (i) who is or was an employee or agent of the corporation, (ii) who is
or was serving at the request of the corporation as an employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
or (iii) who was an employee or agent of a corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation.
6.3 INSURANCE
The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of the General
Corporation Law of Delaware.
14
<PAGE>
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS
The corporation shall, either at its principal executive office or
at such place or places as designated by the board of directors, keep a
record of its shareholders listing their names and addresses and the number
and class of shares held by each shareholder, a copy of these bylaws as
amended to date, accounting books, and other records.
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 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 accompanied
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 Delaware or
at its principal place of business.
The officer who has charge of the stock ledger of a corporation
shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the 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 ten (10) days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The 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.
7.2 INSPECTION BY DIRECTORS
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 his 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.
15
<PAGE>
7.3 ANNUAL STATEMENT TO STOCKHOLDERS
The board of directors shall present at each annual meeting, and at
any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairman of the board, the president, any vice president, the
treasurer, the secretary or assistant secretary of this corporation, or any
other person authorized by the board of directors or the president or a vice
president, is authorized to vote, represent, and exercise on behalf of this
corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this corporation. The
authority granted herein may be exercised either by such person directly or
by any other person authorized to do so by proxy or power of attorney duly
executed by such person having the authority.
ARTICLE VIII
GENERAL MATTERS
8.1 CHECKS
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 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.
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
The board of directors, except as otherwise provided in these
bylaws, may authorize any officer or officers, or agent or agents, to enter
into any contract or execute any instrument in the name of and on behalf of
the corporation; such authority may be general or confined to specific
instances. Unless so authorized or ratified by the board of directors or
within the agency power of an officer, 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
for any amount.
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of a corporation shall be represented by certificates,
provided that the board of directors of the corporation may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not apply
to shares represented by a certificate until such certificate is surrendered
to the corporation. Notwithstanding the adoption of such a resolution by the
board of directors, every holder of stock represented by certificates and
upon request every holder of uncertificated shares 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 of directors, or the president or vice-president,
and by the treasurer or an assistant
16
<PAGE>
treasurer, or the secretary or an assistant secretary of such corporation
representing the number of shares registered in certificate form. Any or all
of the signatures on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been placed upon a certificate has 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 date of issue.
The corporation may issue the whole or any part of its shares as
partly paid and subject to call for the remainder of the consideration to be
paid therefor. Upon the face or back of each stock certificate issued to
represent any such partly paid shares, upon the books and records of the
corporation in the case of uncertificated partly paid shares, the total
amount of the consideration to be paid therefor and the amount paid thereon
shall be stated. Upon the declaration of any dividend on fully paid shares,
the corporation shall declare a dividend upon partly paid shares of the same
class, but only upon the basis of the percentage of the consideration
actually paid thereon.
8.4 SPECIAL DESIGNATION ON CERTIFICATES
If the corporation is authorized to issue more than one class of
stock or more than one series of any class, then the powers, the
designations, the preferences, and the 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
shall be set forth in full or summarized on the face or back of the
certificate that the corporation shall issue to represent such class or
series of stock; provided, however, 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 that 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, the designations, the
preferences, and the 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.
8.5 LOST CERTIFICATES
Except as provided in this Section 8.5, no new certificates for
shares shall be issued to replace a previously issued certificate unless the
latter is surrendered to the corporation and cancelled at the same time. The
corporation may issue a new certificate of stock or uncertificated shares in
the place of any certificate theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the corporation may require the owner of the
lost, stolen or destroyed certificate; or his legal representative, to give
the corporation a bond sufficient to indemnify it against any claim that may
be made against it on account of the alleged loss, theft or destruction of
any such certificate or the issuance of such new certificate or
uncertificated shares.
8.6 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules
of construction, and definitions in the Delaware General Corporation Law
shall govern the construction of these bylaws.
17
<PAGE>
Without limiting the generality of this provision, the singular number
includes the plural, the plural number includes the singular, and the term
"person" includes both a corporation and a natural person.
8.7 DIVIDENDS
The directors of the corporation, subject to any restrictions
contained in the certificate of incorporation, may declare and pay dividends
upon the shares of its capital stock pursuant to the General Corporation Law
of Delaware. Dividends may be paid in cash, in property, or in shares of the
corporation's capital stock.
The directors of the corporation may set apart out of any of the
funds of the corporation available for dividends a reserve or reserves for
any proper purpose and may abolish any such reserve. Such purposes shall
include but not be limited to equalizing dividends, repairing or maintaining
any property of the corporation, and meeting contingencies.
8.8 FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of
the board of directors and may be changed by the board of directors.
8.9 SEAL
The corporation may adopt a corporate seal, which shall be adopted
and which may be altered by the board of directors, and may use the same by
causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
8.10 TRANSFER OF STOCK
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 in
its books.
8.11 STOCK TRANSFER AGREEMENTS
The corporation shall have power to enter into and perform any
agreement with any number of shareholders of any one or more classes of stock
of the corporation to restrict the transfer of shares of stock of the
corporation of any one or more classes owned by such stockholders in any
manner not prohibited by the General Corporation Law of Delaware.
8.12 REGISTERED STOCKHOLDERS
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, shall be entitled to hold liable for
calls and assessments the person registered on its books as the owner of
shares, and
18
<PAGE>
shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of another person, whether or not it
shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE IX
AMENDMENTS
The original or other bylaws of the corporation may be adopted,
amended or repealed by the stockholders entitled to vote; provided, however,
that the corporation may, in its certificate of incorporation, confer the
power to adopt, amend or repeal bylaws upon the directors. The fact that such
power has been so conferred upon the directors shall not divest the
stockholders of the power, nor limit their power to adopt, amend or repeal
bylaws.
ARTICLE X
DISSOLUTION
If it should be deemed advisable in the judgment of the board of
directors of the corporation that the corporation should be dissolved, the
board, after the adoption of a resolution to that effect by a majority of the
whole board at any meeting called for that purpose, shall cause notice to be
mailed to each stockholder entitled to vote thereon of the adoption of the
resolution and of a meeting of stockholders to take action upon the
resolution.
At the meeting a vote shall be taken for and against the proposed
dissolution. If a majority of the outstanding stock of the corporation
entitled to vote thereon votes for the proposed dissolution, then a
certificate stating that the dissolution has been authorized in accordance
with the provisions of Section 275 of the General Corporation Law of Delaware
and setting forth the names and residences of the directors and officers
shall be executed, acknowledged, and filed and shall become effective in
accordance with Section 103 of the General Corporation Law of Delaware. Upon
such certificate's becoming effective in accordance with Section 103 of the
General Corporation Law of Delaware, the corporation shall be dissolved.
Whenever all the stockholders entitled to vote on a dissolution
consent in writing, either in person or by duly authorized attorney, to a
dissolution, no meeting of directors or stockholders shall be necessary. The
consent shall be filed and shall become effective in accordance with Section
103 of the General Corporation Law of Delaware. Upon such consent's becoming
effective in accordance with Section 103 of the General Corporation Law of
Delaware, the corporation shall be dissolved. If the consent is signed by an
attorney, then the original power of attorney or a photocopy thereof shall be
attached to and filed with the consent. The consent filed with the Secretary
of State shall have attached to it the affidavit of the secretary or some
other officer of the corporation stating that the consent has been signed by
or on behalf of all the stockholders entitled to vote on a dissolution; in
addition, there shall be attached to the consent a certification by the
secretary or some other officer of the corporation setting forth the names
and residences of the directors and officers of the corporation.
19
<PAGE>
ARTICLE XI
CUSTODIAN
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES
The Court of Chancery, upon application of any stockholder, may
appoint one or more persons to be custodians and, if the corporation is
insolvent, to be receivers, of and for the corporation when:
(i) at any meeting held for the election of directors the
stockholders are so divided that they have failed to elect successors to
directors whose terms have expired or would have expired upon qualification
of their successors; or
(ii) the business of the corporation is suffering or is
threatened with irreparable injury because the directors are so divided
respecting the management of the affairs of the corporation that the required
vote for action by the board of directors cannot be obtained and the
stockholders are unable to terminate this division; or
(iii) the corporation has abandoned its business and has
failed within a reasonable time to take steps to dissolve, liquidate or
distribute its assets.
11.2 DUTIES OF CUSTODIAN
The custodian shall have all the powers and title of a receiver
appointed under Section 291 of the General Corporation Law of Delaware, but
the authority of the custodian shall be to continue the business of the
corporation and not to liquidate its affairs and distribute its assets,
except when the Court of Chancery otherwise orders and except in cases
arising under Sections 226(a)(3) or 352(a)(2) of the General Corporation Law
of Delaware.
20
