GLOBAL TELESYSTEMS GROUP INC
8-A12B, 1999-09-30
TELEPHONE COMMUNICATIONS (NO RADIOTELEPHONE)
Previous: IAS COMMUNICATIONS INC, 10QSB, 1999-09-30
Next: DISCOVERY LABORATORIES INC /DE/, S-3/A, 1999-09-30


                       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

                         GLOBAL TELESYSTEMS GROUP, INC.

             (Exact name of registrant as specified in its charter)

            DELAWARE                                   94-3068423
(State of incorporation or organization)    (I.R.S. Employer Identification No.)

         1751 Pinnacle Drive
         North Tower - 12th Floor
         McLean, Virginia                                22102

(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

   Common Stock, $0.10 par value          New York Stock Exchange


        Securities to be registered pursuant to Section 12(g) of the Act:

                                      None

<PAGE>

Item 1.           DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED

         1.1      Common Stock, par value $0.10 per share.

                  The capital stock of Global Telesystems Group, Inc. (the
                  "Company" or the "Registrant") to be registered on the New
                  York Stock Exchange, Inc. (the "Exchange"), is the
                  Registrant's Common Stock, par value $0.10 per share. The
                  number of authorized shares of Common Stock is 270 million.

                  The holders of the Common Stock are entitled to one vote for
                  one share held of record on all matters upon which
                  shareholders have the right to vote. There are no cumulative
                  voting rights. The holders of the Common Stock are entitled to
                  such dividends as may be declared from time to time by the
                  board of directors out of funds legally available for that
                  purpose. Upon dissolution, the holders of the Common Stock are
                  entitled to share pro rata in the Company's assets remaining
                  after payment in full of all of the Company's liabilities and
                  obligations, including payment of the liquidation preference,
                  if any, of any preferred stock then outstanding.

                  The board of directors may authorize the issuance of one or
                  more series of preferred stock having such rights, including
                  voting, conversion and redemption rights, and such
                  preferences, including dividend and liquidation preferences,
                  as the Company's board of directors may determine, without
                  further action by the Company's shareholders. As of June 30,
                  1999, the Company had authorized 200,000 shares of Series A
                  junior participating preferred stock, par value $0.0001 per
                  share. No other series of preferred stock has been authorized.
                  There are no issued and outstanding shares of Series A
                  preferred stock. A right to purchase shares of Series A
                  preferred stock, however, is attached to each share of Common
                  Stock. The Company has authorized 200,000 shares of Series A
                  preferred stock initially for issuance upon exercise of such
                  rights.

                  Certain charter and by-law provisions. The shareholder's
                  rights and related matters are governed by the General
                  Corporation Law of the State of Delaware, (the "DGCL") and the
                  Certificate of Incorporation and By-laws of the Company.
                  Provisions of the Certificate of Incorporation and the
                  By-laws, which are summarized below, may discourage or make
                  more difficult a takeover attempt that a shareholder might
                  consider in its best interest, although certain of such
                  provisions in the By-laws are subject to final approval by the
                  Company's board of directors. Classified Board of Directors
                  and Related Provisions. The Certificate of Incorporation
                  provides that the Company's board of directors be divided into
                  three classes of directors serving staggered three-year terms.
                  The classes of directors (designated class I, class II and
                  class III) shall be, as nearly as possible, equal in number.

<PAGE>

                  Accordingly, one-third of the Company's board of directors
                  will be elected each year. The terms of the initial class I
                  directors terminated at the May 20, 1998 annual meeting of
                  stockholders and such directors were re-elected to a
                  three-year term terminating on the date of the 2001 annual
                  meeting of stockholders; the term of the initial class II
                  directors terminated at the June 16, 1999 annual meeting of
                  stockholders and such directors were re-elected to a
                  three-year term terminating on the date of the 2002 annual
                  meeting of stockholders; and the term of the initial class III
                  directors shall terminate on the date of the 2000 annual
                  meeting of stockholders. At each annual meeting of
                  stockholders beginning in 1998, successors to the class of
                  directors whose term expires at that annual meeting shall be
                  elected for a three-year term. The classified board provision
                  may prevent a party who acquires control of a majority of the
                  Company's outstanding voting stock from obtaining control of
                  the board of directors until the second annual shareholders
                  meeting following the date such party obtains the controlling
                  interest.

                  Subject to the rights of the holders of any series of
                  preferred stock or any other class of the Company's capital
                  stock (other than Common Stock) then outstanding, directors
                  may only be removed for cause by a majority vote of the
                  Company's holders of capital stock issued and outstanding and
                  entitled to vote generally in the election of directors,
                  voting together as a single class.

                  No Shareholder Action by Written Consent; Special Meetings.
                  The Certificate of Incorporation prohibits shareholders from
                  taking action by written consent in lieu of an annual or
                  special meeting, and thus shareholders may take action at an
                  annual or special meeting called in accordance with the
                  By-laws. The Certificate of Incorporation and By-laws provide
                  that special meetings of shareholders may only be called by
                  the Chairman of the board of directors, the Chief Executive
                  Officer or a majority of the board of directors. Special
                  meetings may not be called by the shareholders, except as
                  permitted by the shareholder rights By-law described below.

                  Amendments to the Certificate of Incorporation. The provisions
                  of the Certificate of Incorporation described above may not be
                  amended, altered, changed or repealed without the affirmative
                  vote of the holders of at least 75% of the shares of the
                  Company's capital stock issued and outstanding and entitled to
                  vote.

<PAGE>

         1.2      Rights associated with Common Stock, par value $0.10 per
                  share.

                  The Company has entered into a rights agreement. In connection
                  with the rights agreement, the Company's board of directors
                  declared a distribution of one right for each outstanding
                  share of Common Stock and each share of the Company's Common
                  Stock issued (including shares distributed from treasury)
                  thereafter and prior to a distribution date. Each right will
                  entitle the registered holder, subject to the terms of the
                  rights agreement, to purchase from the Company one
                  one-thousandth of a share or a unit of Series A preferred
                  stock at a purchase price of $75 per unit, subject to
                  adjustment.

                  Initially, the rights will attach to all certificates
                  representing shares of outstanding Common Stock, and no
                  separate rights certificates will be distributed. The rights
                  will separate from the Common Stock and the distribution date
                  will occur upon the earlier of (1) 10 days following a public
                  announcement that a person or group of affiliated or
                  associated persons (other than the Company, any of its
                  subsidiaries or any of its employee benefit plans or such
                  subsidiary) has acquired, obtained the right to acquire, or
                  otherwise obtained beneficial ownership of 15% or more of the
                  then outstanding shares of Common Stock and (2) 10 business
                  days (or such later date as may be determined by action of the
                  board of directors prior to such time as any person makes such
                  announcement) following the commencement of a tender offer or
                  exchange offer that would result in a person or group
                  beneficially owning 15% or more of the then outstanding shares
                  of Common Stock. Certian affliates of George Soros and Alan B.
                  Slifka and his affiliates are excluded from being an acquiring
                  person described in (1) and (2) above under the rights
                  agreement unless they increase the aggregate percentage of
                  their ownership interest in the Company to 20%.

                  Until a distribution date:

                  (1)      the rights will be evidenced by common stock
                           certificates and will be transferred with and only
                           with such common stock certificates,

                  (2)      new common stock certificates issued after date of
                           consummation of the Company's initial public
                           offerings in February 1998 (also including shares
                           distributed from treasury) will contain a notation
                           incorporating the rights agreement by reference, and

                  (3)      the surrender for transfer of any certificates
                           representing outstanding common stock will also
                           constitute the transfer of the rights associated with
                           the common stock represented by such certificates.

<PAGE>

                  The rights will not be exercisable until a distribution date
                  and will expire at the close of business on the tenth
                  anniversary of the rights agreement unless the Company redeems
                  them earlier.

                  In the event that:

                  (1)      the Company is the surviving corporation in a merger
                           with an acquiring person described above and shares
                           of Common Stock shall remain outstanding,

                  (2)      a person becomes an acquiring person,

                  (3)      an acquiring person engages in one or more
                           "self-dealing" transactions as set forth in the
                           rights agreement, or

                  (4)      during such time as there is an acquiring person, an
                           event occurs which results in such person's ownership
                           interest being increased by more than 1% (e.g., by
                           means of a recapitalization), then, in each such
                           case, each holder of a right (other than such person)
                           will thereafter have the right to receive, upon
                           exercise, units of Series A preferred stock (or, in
                           some circumstances, the Company's Common Stock, cash,
                           property or other securities) having a value equal to
                           two times the exercise price of the right. The
                           exercise price is the purchase price multiplied by
                           the number of units of Series A preferred stock
                           issuable upon exercise of a right prior to the events
                           described in this paragraph.

                  In the event that, at any time following a stock acquisition
                  date:

                  (1)      the Company is acquired in a merger or other business
                           combination transaction and the Company is not the
                           surviving corporation (other than a merger described
                           in the preceding paragraph),

                  (2)      any person consolidates or merges with the Company
                           and all or part of the Company's Common Stock is
                           converted or exchanged for securities, cash or
                           property of any other person, or

                  (3)      50% or more of the Company's assets or earning power
                           is sold or transferred, each holder of a right (other
                           than an acquiring person) shall thereafter have the
                           right to receive, upon exercise, Common Stock of the
                           ultimate parent of such person having a value equal
                           to two times the exercise price of the right.

<PAGE>

                  The purchase price payable, and the number of units of Series
                  A preferred stock issuable, upon exercise of the rights are
                  subject to adjustment from time to time to prevent dilution:

                  (1)      in the event of a stock dividend on, or a
                           subdivision, combination or reclassification of, the
                           Series A preferred stock,

                  (2)      if holders of the Series A preferred stock are
                           granted certain rights or warrants to subscribe for
                           Series A preferred stock or convertible securities at
                           less than the current market price of the Series A
                           preferred stock, or

                  (3)      upon the distribution to the holder of the Series A
                           preferred stock of evidence of indebtedness, cash or
                           assets (excluding regular quarterly cash dividends)
                           or of subscription rights or warrants (other than
                           those referred to above).

                  At any time until ten business days following a stock
                  acquisition date, either (1) 75% of our board of directors or
                  (2) a majority of our board of directors and a majority of the
                  continuing directors, may redeem the rights in whole, not in
                  part, at a nominal price. Immediately upon the action of a
                  majority of our board of directors ordering the redemption of
                  the rights, the rights will terminate and the only right of
                  the holders of rights will be to receive such redemption
                  price. As used in the rights agreement, a continuing director
                  means any person (other than a person attempting to acquire
                  the Company or an affiliate or associate of such a person or a
                  representative of such person or of any such affiliate or
                  associate) who was a director prior to the date of the rights
                  agreement and any person (other than an acquiring person or an
                  affiliate or associate of an acquiring person or a
                  representative of an acquiring person or of any such affiliate
                  or associate) nominated for selection or elected to the board
                  of directors pursuant to the approval of a majority of the
                  continuing directors.

                  At its option, either (1) 75% of the Company's board of
                  directors or (2) a majority of the Company's board of
                  directors and a majority of the continuing directors, may
                  exchange each right for (a) one unit of Series A preferred
                  stock or (b) such number of units of Series A preferred stock
                  as will equal the spread between the market price of each unit
                  to be issued and the purchase price of such unit set forth in
                  the rights agreement.

                  Any of the provisions of the rights agreement may be amended
                  without the approval of either (1) 75% of the Company's board
                  of directors or (2) a majority of the Company's board of
                  directors and a majority of continuing directors in order to
                  cure any ambiguity, defect or inconsistency, to make

<PAGE>

                  changes which do not adversely affect the interests of holders
                  of rights (excluding the interests of any acquiring person),
                  or to shorten or lengthen any time period under the rights
                  agreement; provided, however, that no amendment to adjust the
                  time period governing redemption shall be made at such time as
                  the rights are not redeemable.

                  Shareholder Rights By-Law. If a fully financed tender offer is
                  made publicly to purchase all of the Company's outstanding
                  shares of Common Sock for cash or marketable securities at a
                  price that is at least 40%greater than the average closing
                  price of such shares on the principal exchange on which such
                  shares are listed during the 30 days prior to the date on
                  which such offer is first published or sent to security
                  holders and the board of directors opposes such offer, the
                  holders of more than 50% of the outstanding shares of Common
                  Stock may, at any time subsequent to the date that is nine
                  calendar months after the date of an offer, call a special
                  meeting of the stockholders, notwithstanding the provisions
                  described in--"Certain Charter and By-Law Provisions--No
                  Shareholder Action by Written Consent; Special Meetings," at
                  which meeting stockholders may be asked to vote upon a
                  proposal to request that the board of directors amend the
                  rights agreement to exempt such offer from the terms of the
                  rights agreement; provided, however, if prior to the
                  expiration of such nine-month period, the board of directors
                  determines that it is in the best interests of the
                  shareholders to undertake efforts to sell the Company, such
                  period shall be extended as long as the board of directors
                  continues its efforts to solicit, evaluate and negotiate
                  alternative bids to acquire the Company. If the proposal to
                  amend the rights agreement is approved by a vote of 70% of the
                  votes cast for or against such proposal at such meeting of
                  stockholders at which a quorum is present, the board of
                  directors shall amend the rights agreement to exempt such
                  offer from its terms no later than 60 days after the date of
                  such stockholders' meeting.

                  "Marketable securities" means any securities that are traded
                  on a nationally recognized exchange and, in the opinion of an
                  independent investment bank, provide sufficient value and
                  liquidity so that they would be treated as substantially
                  equivalent to cash consideration.

Item 2.           EXHIBITS

                  The following exhibits are filed herewith (or incorporated by
reference as indicated below):

         1.1      Specimen Stock Certificate for Common Stock of SFMT, Inc.
                  (incorporated by reference to Exhibit 4.1 of the Registration
                  Statement on Form S-1 (Registration No. 333-36555) (the "S-1
                  Registration Statement") filed by the Registrant with the
                  Securities and Exchange Commission (the "Commission") on
                  September 26, 1997).

<PAGE>

         1.2      Form of Rights Certificate for the Rights (set forth as
                  Exhibit A to the form of Rights Agreement included as Exhibit
                  4.1 hereto).

         2.1      Certificate of Incorporation of SFMT, Inc. (incorporated by
                  reference to Exhibit 3.1 of the S-1 Registration Statement).

         2.2      Certificate of Correction to the Certificate of Incorporation
                  of SFMT, Inc., filed October 8, 1993 (incorporated by
                  reference to Section titled "Description of Capital Stock -
                  Common Stock" from the S-1 Registration Statement.

         2.3      Certificate of Ownership and Merger Merging San
                  Francisco/Moscow Teleport, Inc. into SFMT, Inc., filed
                  November 3, 1993 (incorporated by reference to Exhibit 3.3 of
                  the S-1 Registration Statement).

         2.4      Certificate of Amendment to the Certificate of Incorporation
                  of SFMT, Inc., filed January 12, 1995 (incorporated by
                  reference to Exhibit 3.4 of the S-1 Registration Statement).

         2.5      Certificate of Amendment to the Certificate of Incorporation
                  of SFMT, Inc., filed February 22, 1995 (incorporated by
                  reference to Exhibit 3.5 of the S-1 Registration Statement).

         2.6      Certificate of Amendment to the Certificate of Incorporation
                  of SFMT, Inc., filed October 16, 1996 (incorporated by
                  reference to Exhibit 3.6 of the S-1 Registration Statement).

         2.7      By-laws of the Registrant.

         4.1      Form of Rights Agreement between the Registrant and The Bank
                  of New York, as Rights Agent (incorporated by reference to
                  Exhibit 4.6 of the S-1 Registration Statement).

<PAGE>

                                    SIGNATURE

                  Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, as amended, the Registrant has duly caused this
registration statement to be signed on its behalf by the undersigned, thereto
duly authorized.

                                   GLOBAL TELESYSTEMS
                                     GROUP, INC.

Date: September 30, 1999           By:    /s/Grier C. Raclin
                                        ---------------------------------------
                                   Name:  Grier C. Raclin
                                   Title: Senior Vice President - External
                                          Affairs, General Counsel and
                                          Secretary


                                                                     EXHIBIT 2.7
                                     BY-LAWS

                                       OF

                         GLOBAL TELESYSTEMS GROUP, INC.

                            (A Delaware Corporation)

                                  June 17, 1999

                                    ARTICLE I
                                     OFFICES

         Section 1. The registered office of Global TeleSystems Group, Inc. (the
"Corporation") in the state of Delaware shall be in the city of Dover, county of
Kent, and the name of the resident agent in charge thereof is National Corporate
Research, Ltd.

         Section 2. The Corporation may also have offices at such other places,
both within and without the state of Delaware, as the Board of Directors may
from time to time determine or the business of the Corporation may require.

                                   ARTICLE II
                            MEETINGS OF STOCKHOLDERS

         Section 1. All meetings of the stockholders for the election of
directors shall be held at such place within or without the state of Delaware as
may be fixed from time to time by the Board of Directors and stated in the
notice of meeting or in the duly executed waiver of notice thereof.

         Section 2. Annual meetings of stockholders shall be held on such date
and at such time as may be fixed from time to time by the Board of Directors and
stated in the notice of meeting or in a duly executed waiver of notice thereof,
at which the stockholders shall elect, by a plurality vote, or such other vote
as may be required by the provisions of any agreement among the stockholders of
the Corporation, a class of the Board of Directors in accordance with Article
Eleventh of the Corporation's Certificate of Incorporation, as it may be amended
from time to time (the "Certificate of Incorporation"), and transact such other
business as may properly be brought before the meeting

         Section 3. Special meetings of stockholders may be held at such time
and place within or without the state of Delaware as shall be stated in the
notice of the meeting or in a duly executed

<PAGE>

waiver of notice thereof.

         Section 4. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute, Article II, Section 6 of the
By-laws, or by the Certificate of Incorporation, may only be called by the Board
of Directors, the Chairman of the Board of Directors or the Chief Executive
Officer.

         Section 5. Written notice of every meeting of stockholders, stating the
purpose or purposes to which the meeting is called, the date and time and the
place where it is to be held and, if the list of stockholders required by
Section 7, Article IX is not to be at such place at least ten days prior to the
meeting, the place where such list will be, shall be served, not less than ten
nor more than sixty days before the meeting, either personally or by mail, upon
each stockholder entitled to vote at such meeting and upon each stockholder of
record who, by reason of any action proposed at such meeting, would be entitled
to have his or her stock appraised if such action were taken, If mailed, such
notice shall be deemed given when deposited in the mail directed to a
stockholder at his or her address as it shall appear on the books of the
Corporation unless he or she shall have filed with the Secretary of the
Corporation a written request that notices intended for such stockholder be
mailed to some other address, in which case it shall be mailed to the address
designated in such request. The attendance of any stockholder at a meeting, in
person or by proxy, shall constitute a waiver of notice by such stockholder,
except when the stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.

         Section 6. (a) If a fully financed tender offer is made publicly to
purchase all the Corporation's outstanding shares of common stock, par value
$.10 ("Common Stock") for cash or Marketable Securities (as defined below) at a
price that is at least forty percent (40%) greater than the average closing
price of such shares on the principal exchange on which such shares are listed
during the thirty (30) days prior to the date on which such offer is first
published or sent to security holders (the "Offer Date"), and the Corporation's
Board of Directors opposes such offer, the holders of more than fifty percent
(50%) of the outstanding shares of Common Stock may, at any time subsequent to
the date that is nine (9) calendar months after the Offer Date, call a special
meeting of the stockholders, notwithstanding anything contained in Article II,
Section 4 of the By-Laws, at which meeting stockholders may be asked to vote
upon a proposal to request that the Board of Directors amend the Rights
Agreement between the Corporation and The Bank of New York, as Rights Agent,
dated as of February 2, 1998 (the "Rights Agreement") to exempt such offer from
the terms of the Rights Agreement; provided that, if prior to the expiration of
such nine-month period, the Board of Directors determines that it is in the best
interests of the shareholders to undertake efforts to sell the Corporation, such
period shall be extended for as long as the Board of Directors continues its
efforts to solicit, evaluate and/or negotiate alternative


                                       2
<PAGE>

bids to acquire the Corporation. If the proposal to amend the Rights Agreement
as described herein is approved by a vote of seventy percent (70%) of the votes
cast for or against such proposal at such meeting of the stockholders at which a
quorum is present, the Board of Directors shall amend the Rights Agreement to
exempt such offer from its terms no later than 60 days after the date of such
stockholders' meeting. This Section may only be amended or repealed by a
stockholder vote pursuant to Article III, Section 2 of the By-Laws.

         (b) "Marketable Securities" means any securities that are traded on a
nationally recognized exchange and, in the opinion of an independent investment
bank, provide sufficient value and liquidity so that they would be treated as
substantially equivalent to cash consideration.

                                   ARTICLE III
                           QUORUM AND VOTING OF STOCK

         Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or 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 of the Corporation, or by the provisions of any agreement among
the stockholders of the Corporation. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the stockholders
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 shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. Notice of the adjourned meeting shall be given when required by law.

         Section 2. If a quorum is present, the affirmative vote of a majority
of the shares of stock represented at the meeting shall be the act of the
stockholders, unless the vote of a greater or lesser number of shares of stock
is required by law, or the Certificate of Incorporation of the Corporation, or
pursuant to Article II, Section 2 above, or pursuant to Article II, Section 6
above, or pursuant to the provisions of any agreement of the Stockholders of the
Corporation. Cumulative voting shall not be allowed.

         Section 3. Each outstanding share of stock having voting power shall be
entitled to one vote on each matter submitted to a vote at a meeting of the
stockholders. A stockholder may vote either in person or by proxy executed in
writing by the stockholder or by his or her duly authorized attorney-in-fact.

         Section 4. The Board of Directors in advance of any stockholders'
meeting may appoint


                                       3
<PAGE>

one or more inspectors to act at the meeting or any adjournment thereof. If
inspectors are not so appointed, the person presiding at a stockholders' meeting
may, and, on the request of any stockholder entitled to vote thereat, shall,
appoint one or more inspectors. In case any person appointed as inspector fails
to appear or act, the vacancy may be filled by the Board of Directors in advance
of the meeting or at the meeting by the person presiding thereat. Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of his or her ability.

                                   ARTICLE IV
                                    DIRECTORS

         Section 1. The Board of Directors of the Corporation shall consist of
eleven members. The number of directors constituting the entire Board of
Directors may be changed from time to time by resolution adopted by the Board of
Directors or the stockholders, provided no decrease made in such number shall
shorten the term of any incumbent director.

         Section 2. Directors shall be at least eighteen years of age and need
not be residents of the state of Delaware nor stockholders of the Corporation.
The directors, other than the first Board of Directors, shall be elected at the
annual meeting of the stockholders pursuant to statute and as provided in the
Certificate of Incorporation. The Board of Directors, by the affirmative vote of
a majority of the directors, may from time to time elect former Directors of the
Corporation to the position of Director Emeritus who shall not be empowered to
vote on matters presented to the Board of Directors, but who may participate in
activities of the Board of Directors to the extent, and for such term, as may be
determined by the Board of Directors.

         Section 3. Subject to the provisions of any agreement among the
stockholders of the Corporation, any or all of the directors may be removed for
cause (as defined by applicable law), at any time by the vote of a majority of
the stockholders entitled to vote upon the election of directors at a special
meeting of stockholders called for that purpose.

         Section 4. Subject to the provisions of any agreement among the
stockholders of the Corporation, vacancies and newly created directorships
resulting from an increase in the authorized number of directors may be filled
in accordance with the Certificate of Incorporation.

         Section 5. The business affairs of the Corporation shall be managed by
its Board of Directors, which may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation of the Corporation or by these By-laws directed or
required to be exercised or done by the stockholders.


                                       4
<PAGE>

         Section 6. The directors may keep the books of the Corporation, except
such as are required by law to be kept within the state of Delaware, outside the
state of Delaware, at such place or places as they may from time to time
determine.

         Section 7. The Board of Directors, by the affirmative vote of a
majority of the directors, or such other number of directors required pursuant
to the provisions of any agreement among the stockholders, then in office, and
irrespective of any personal interest of any of its members, shall have
authority to establish reasonable compensation of all directors for services to
the Corporation as directors, officers or otherwise.

         Section 8. The directors may close the stock transfer books for a
period not exceeding twenty (20) days prior to stockholders' meetings or payment
of dividends or for such other reasons as they may see fit.

                                    ARTICLE V
                       MEETINGS OF THE BOARD OF DIRECTORS

         Section 1. Meetings of the Board of Directors, regular or special, may
be held either within or without the state of Delaware, at such places as the
Board of Directors may from time to time determine. The Chairman of the Board of
Directors shall preside at all meetings of the Board of Directors and
stockholders of the Corporation.

         Section 2. Regular meetings of the Board of Directors may be held
without notice at such time as the Board of Directors may from time to time
determine. Special meetings of the Board of Directors shall be held whenever
called at the direction of the President or any of the directors then in office.
The Secretary or some other officer or director of the Corporation shall give
notice to each director of the time and place of each special meeting by mailing
the same at least five days before the meeting or telecopying or telephoning the
same not later than one day before the meeting, at the residence address of each
director or at such director's usual place of business, or such shorter time as
may be permitted by the General Corporation Law of the State of Delaware and by
the Certificate of Incorporation of the Corporation. Special meetings of the
Board of Directors shall be held at such place, within or without the State of
Delaware, as shall be provided in the notice for the meeting.

         Section 3. Notice of a meeting need not be given to any director who
submits a signed waiver of notice, whether before or after the meeting, or who
attends the meeting without protesting prior thereto or at its commencement, the
lack of notice. Neither the business to be transacted at, nor the purpose of,
any regular or special meeting of the Board of Directors need be specified in
the notice or waiver of notice of such meeting.


                                       5
<PAGE>

         Section 4. A majority of the entire Board of Directors shall constitute
a quorum for the transaction of business unless a greater or lesser number is
required by law or by the Certificate of Incorporation of the Corporation. The
vote of a majority of the directors present at any meeting at which a quorum is
present shall be the act of the Board of Directors, unless the vote of a greater
number is required by law or by the Certificate of Incorporation of the
Corporation or a larger number of directors shall be required under the
provisions of any agreement among the stockholders. If a quorum shall not be
present at any meeting of directors, the directors present may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.

         Section 5. Any action required or permitted to be taken by the Board of
Directors, or any committee thereof, may be taken without a meeting if all
members of the Board of Directors, or the committee, consent thereto in writing
and the writing or writings are filed with the minutes of the proceedings of the
Board of Directors or the committee.

         Section 6. Any one or more members of the Board of Directors, or any
committee thereof, may participate in a meeting of such Board of Directors or
committee by means of a conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other at the same
time. Participation by such means shall constitute presence in person at a
meeting.

                                   ARTICLE VI
                      COMMITTEES OF THE BOARD OF DIRECTORS

         Section 1. The Board of Directors, by a resolution passed by a vote of
a majority of the whole Board, may appoint an Executive Committee and such other
committees, each consisting of one or more directors. To the extent permitted by
law and as directed by resolutions adopted by the Board of Directors from time
to time, the Executive Committee shall have and exercise the powers of the Board
of Directors, during the intervals between meetings of the Board of Directors,
in the management of the property, business and affairs of the Corporation.

                                   ARTICLE VII
                                     NOTICES

         Section 1. Whenever, under statute, the Certificate of Incorporation or
these By-laws, notice is required to be given to any director or stockholder,
such notice may be given in writing, either personally or by courier, facsimile
or telegram or by mail, addressed to such director or stockholder, at his or her
address as it appears on the records of the Corporation, with postage thereon
prepaid, in which case such notice shall be deemed to be given at the time when
the same shall be deposited in the United States Mail.


                                       6
<PAGE>

         Section 2. Whenever any notice or a meeting is required to be given
under statute, the provisions of the Certificate of Incorporation or these
By-laws, a waiver thereof in writing signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be transacted
at nor the purpose of the meeting need be specified in any written waiver of
notice.

                                  ARTICLE VIII
                                    OFFICERS

         Section 1. The officers of the Corporation shall be appointed by the
Board of Directors and shall be a President, one or more Executive Vice
Presidents, Senior Vice Presidents, or Vice Presidents, a Treasurer and a
Secretary. The Board of Directors may also appoint one or more Assistant
Secretaries and Assistant Treasurers.

         Section 2. The Board of Directors, at its first meeting after each
annual meeting of stockholders, shall appoint a President, one or more Executive
Vice Presidents, Senior Vice Presidents, or Vice Presidents, a Treasurer and a
Secretary, none of whom need to be a member of the Board of Directors. Any two
or more offices may be held by the same person, except that there shall always
be two persons who hold offices which entitle them to sign instruments and stock
certificates.

         Section 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board of Directors.

         Section 4. The salaries of all officers of the Corporation shall be
fixed by the Board of Directors or by a committee thereof.

         Section 5. The officers of the Corporation, unless removed by the Board
of Directors as herein provided, shall hold office until their successors are
chosen and qualify or until their earlier death, resignation or removal. Any
officer elected or appointed by the Board of Directors may be removed at any
time, with or without cause, by the affirmative vote of a majority of the Board
of Directors. Any officer may resign his or her office at any time upon written
notice to the Corporation. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.

         Section 6. In the event of the absence of any officer of the
Corporation or for any other reason that the Board of Directors may deem
sufficient, the Board of Directors may at any time or from time to time delegate
all or any part of the powers or duties of any officer to any other


                                       7
<PAGE>

officer or officers or to any director or directors.

                                    PRESIDENT

         Section 7. The President shall exercise such authority and control over
the affairs of the Corporation, and shall perform such other duties as may be
assigned to the President by the Board of Directors.

                                 VICE PRESIDENTS

         Section 8. If there shall be appointed one or more Executive Vice
Presidents, Senior Vice Presidents, or Vice Presidents, each officer shall
perform such duties and have such powers as may be prescribed by the Board of
Directors or the President, under whose supervision he, she or they shall be.

                     THE SECRETARY AND ASSISTANT SECRETARIES

         Section 9. The Secretary shall record all the proceedings of the
meetings of the stockholders and of the Board of Directors in a book to be kept
for that purpose. The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of Directors, and
shall perform such other duties as may be prescribed by the Board of Directors
or President, under whose supervision he or she shall be. The Secretary shall
have custody of the corporate seal of the Corporation and the Secretary, or an
Assistant Secretary, shall have authority to affix the same to any instrument
requiring it and, when so affixed, it may be attested by his or her signature or
by the signature of such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his or her signature.

         Section 10. The Assistant Secretary or, if there be more than one, the
Assistant Secretaries in the order determined by the Board of Directors, shall,
in the absence or disability of the Secretary, perform the duties and exercise
the powers of the Secretary and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.

                     THE TREASURER AND ASSISTANT TREASURERS

         Section 11. The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors.


                                       8
<PAGE>

         Section 12. The Treasurer shall disburse the funds of the Corporation
as may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors at
its regular meetings, or when the Board of Directors so requires, an account of
all his or her transactions as Treasurer and of the financial condition of the
Corporation.

         Section 13. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance of
the duties of the office and for the restoration to the Corporation, in case of
the Treasurer's death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his or her
possession or under his or her control belonging to the Corporation.

         Section 14. The Assistant Treasurer, or, if there shall be more than
one, the Assistant Treasurers in the order determined by the Board of Directors,
shall, in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.

                                   ARTICLE IX
                             CERTIFICATE FOR SHARES

         Section 1. Every holder of shares of stock in the Corporation shall be
entitled to have a certificate certifying the number of shares owned by such
holder in the Corporation. Each such certificate shall be numbered and entered
in the books of the Corporation as they are issued. They shall exhibit the
holder's name and the number of shares and shall be signed by the Chairman,
President, Executive Vice President, Senior Vice President or any Vice President
and by the Secretary or any Assistant Secretary or the Treasurer or an Assistant
Treasurer of the Corporation and may be sealed with the seal of the Corporation
or a facsimile thereof. When the Corporation is authorized to issue shares of
more than one class, there shall be set forth upon the face or back of the
certificate a statement that the Corporation will furnish to any shareholder
upon request and without charge, a full statement of the designation, relative
rights, preferences, and limitations of the shares of each class authorized to
be issued, and, if the Corporation is authorized to issue any class of preferred
shares in series, the designation, relative rights, preferences and limitations
of each such series so far as the same have been fixed and the authority of the
Board of Directors to designate and fix the relative rights, preferences and
limitations of other series.

         Section 2. The signatures of the officers of the Corporation upon a
certificate may be


                                       9
<PAGE>

facsimiles if the certificate is countersigned by a transfer agent or registered
by a registrar other than the Corporation itself or an employee of the
Corporation. In case any officer who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person were such officer at the date of issue.

                                LOST CERTIFICATES

         Section 3. The Board of Directors or an officer of the Corporation may
direct a new certificate or certificates to be issued in place of any
certificates theretofore issued by the Corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificates has been lost or destroyed. When authorizing such issue of a
new certificate, the Board of Directors or an officer of the Corporation, in its
or such officer's discretion and as a condition precedent to the issuance
thereof, may prescribed such terms and conditions as it deems expedient, and may
require such indemnities as it deems adequate, to protect the Corporation from
any claims that may be made against it with respect to any such certificate
alleged to have been lost or destroyed.

                               TRANSFERS OF SHARES

         Section 4. Upon surrender to the Corporation or the transfer agent of
the Corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate canceled and the transaction recorded upon the books of the
Corporation.

                               FIXING RECORD DATE

         Section 5. For the purpose of determining stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof
or for the purpose of determining stockholders entitled to receive payment of
any dividend or the allotment of any rights, or for the purpose of any other
action, the Board of Directors shall fix, in advance, a date as the record date
for any such determination of stockholders in compliance with the General
Corporation Laws of the State of Delaware When a determination of stockholders
of record entitled to notice of or to vote at any meeting of stockholders has
been made as provided in this section, such determination shall apply to any
adjournment thereof, unless the Board of Directors fixes a new record date for
the adjourned meeting.

                             REGISTERED STOCKHOLDERS

         Section 6. The Corporation shall be entitled to recognize the exclusive
right of a person


                                       10
<PAGE>

registered on its books as the owner of shares to receive dividends and to vote
as such owner, and shall be entitled to hold liable for calls and assessments a
person registered on its books as the owner, and the Corporation shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of Delaware.

                              LIST OF STOCKHOLDERS

         Section 7. A list of stockholders as of the record date, certified by
the corporate officer responsible for its preparation or by a transfer agent,
shall be produced at any meeting upon the request thereat or prior thereto of
any stockholder. If the right to vote at any meeting is challenged, the
inspectors of election, or person presiding thereat, shall require such list of
stockholders to be produced as evidence of the right of the persons challenged
to vote at such meeting and all persons who appear from such list to be
stockholders entitled to vote thereat may vote at such meeting.

                                    ARTICLE X
                                INDEMNIFICATION

         Section 1. Any and every person made a party to any action, suit or
proceeding by reason of the fact that such person, his or her testator or
intestate, is or was a director, officer, employee or agent of this Corporation,
or of any corporation, partnership, joint venture, trust or other enterprise
which he or she served as such at the request of this Corporation, shall be
indemnified by the Corporation, to the fullest extent permissible under the laws
of the state of Delaware, against any and all reasonable expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
necessarily incurred by such person connection with the defense of any such
action, suit or proceedings. Such right of indemnification shall not be deemed
exclusive of any other rights to which such person may be entitled apart from
this provision. The Board of Directors is authorized to provide for the
discharge of the Corporation's responsibilities under this Article by way of
insurance or any other feasible and proper means.

                                   ARTICLE XI
                               GENERAL PROVISIONS

                                    DIVIDENDS

         Section 1. Subject to the provisions of the Certificate of
Incorporation relating thereto, if any, dividends may be declared by the Board
of Directors at any regular or special meeting, pursuant to law. Dividends may
be paid in cash, in shares of the capital stock or in the Corporation's bonds or
its property, including the shares or bonds of other corporations, subject


                                       11
<PAGE>

to any provisions of law and of the Certificate of Incorporation.

         Section 2. Before payment of any dividend, there may be set aside out
of any funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall deem to be in the best interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.

                                     CHECKS

         Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.

                                   FISCAL YEAR

         Section 4. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.


                                       12
<PAGE>

                                      SEAL

         Section 5. The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization and the word "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.

                                   ARTICLE XII
                                   AMENDMENTS

         These By-laws may be amended or repealed or new By-laws may be adopted
by the stockholders entitled to vote or by the Board of Directors.

                                      * * *




© 2019 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission