SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) November 11, 1998
STORAGE TECHNOLOGY CORPORATION
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(Exact Name of Registrant As Specified In Its Charter)
Delaware 1-7534 84-0593263
(State or other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
2270 South 88th Street, Louisville, Colorado 80028-4309
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (303) 673-5151
Not applicable
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(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
ITEM 5. OTHER EVENTS
On November 11, 1998, the Board of Directors of the Registrant approved an
amendment to Article II, Section 11, entitled "Stockholders--Notice of
Stockholder Business", of the Restated Bylaws of the Registrant. The amendment
changes the advance notice period with respect to the submission of proposals to
be presented by a stockholder at the Registrant's annual meeting of stockholders
that are not intended to be included in the Registrant's proxy statement
pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended.
The amended Bylaws provide that, in order to be deemed properly presented, a
stockholder must provide the Registrant with prior notice of the stockholder's
proposal in writing. A stockholder's notice must be delivered to, or mailed to
and received by, the Registrant not less than 60 days nor more than 90 days
prior to the first anniversary of the date on which notice of the prior year's
annual meeting was mailed to stockholders.
In order to be considered timely for purposes of the Registrant's 1999
Annual Meeting of Stockholders, a stockholder must provide notice of the
stockholder's proposal to the Secretary of the Registrant on or after January 6,
1999 and on or before February 5, 1999. A stockholder's notice must set forth,
as to each proposed matter: (a) a brief description of the business and reason
for conducting such business at the meeting; (b) the name and address (as they
appear on the Registrant's books) of the stockholder proposing such business, or
the name and address of the beneficial holder or other party on whose behalf the
proposal is made; (c) the class and number of shares of the Registrant owned by
the stockholder or beneficial holder or other party on whose behalf the proposal
is made; and (d) any material interest of the stockholder or beneficial holder
or other party on whose behalf the proposal is made in such business. The
presiding officer of the meeting may refuse to acknowledge any matter not
presented in compliance with the foregoing procedure.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The following financial statements, pro forma financial information and
exhibits, if any, are filed as part of this report:
(A) Financial statements of businesses acquired.
Not applicable
(B) Pro forma financial information.
Not applicable
Page 2
<PAGE>
(C) Exhibits.
3.1 Restated Bylaws of Storage Technology Corporation,
as Amended November 11, 1998
Page 3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Storage Technology Corporation
By: /s/ Jeffrey M. Dumas
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Jeffrey M. Dumas
Corporate Vice President
and General Counsel
Date: November 19, 1998
Page 4
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
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3.1 Restated Bylaws of Storage Technology Corporation, as Amended
November 11, 1998
Page 5
RESTATED BYLAWS
OF
STORAGE TECHNOLOGY CORPORATION
AS AMENDED NOVEMBER 11, 1998
ARTICLE I
Offices
Section 1. Business Offices. The principal office of the corporation
shall be located in Louisville, Colorado. The corporation may also have offices
at such other places both within and without the State of Delaware or Colorado
as the Board of Directors may from time to time determine or the business of the
corporation may require.
Section 2. Registered Office. The registered office of the corporation
shall be 1209 Orange Street in the City of Wilmington, County of New Castle,
State of Delaware. The registered office may be changed from time to time by the
Board of Directors.
ARTICLE II
Stockholders
Section 1. Annual Meeting. An annual meeting of the stockholders shall
be held for the purpose of electing directors and for the transaction of such
other business as may come before the meeting on the third Tuesday in May or
such other date as may be designated by the Board of Directors at such time and
place, either within or without the State of Delaware, as may be designated by
resolution of the Board of Directors from time to time.
Section 2. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, may be called at any time by the Board of Directors, a
committee of the Board of Directors which has been duly designated by the Board
of Directors and whose powers and authority, as expressly provided in a
resolution of the Board of Directors, include the power to call such meetings,
any two directors or stockholders possessing in the aggregate at least 10% of
the outstanding shares of capital stock entitled to vote generally upon the
election of directors, considered for such purpose as one class, but such
special meetings may not be called by any other person or persons. Business
transacted at any special meeting of the stockholders shall be limited to the
purpose or purposes stated in the notice.
Section 3. Place of Meeting. Each meeting of the stockholders shall be
held at such place or places either within or outside the State of Delaware or
Colorado as may be designated in the notice of meeting, or, if no place is
designated in the notice, at the principal office of the corporation.
Section 4. Fixing Date for Determination of Stockholders of Record. For
the purpose of determining stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, 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 any other lawful action, the Board of Directors may fix, in
advance, a date as the record date for any such determination of stockholders,
which date shall not be more than 60 nor less than 10 days before the date of
such meeting, nor more than 60 days prior to any other action. If no record date
is fixed then the record date shall be: (a) for determining stockholders
entitled to notice of or to vote at a meeting of stockholders, the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, the close of business on the day next preceding the day on
which the meeting is held; (b) for determining stockholders entitled to express
consent to corporate action without a meeting, when no prior action by the Board
of Directors is necessary, the day on which the first written consent is
expressed; and (c) for determining stockholders for any other purpose 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.
Section 5. Notice of Meeting. Except as otherwise provided by statute,
written notice stating the place, day and hour of the meeting, and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given not less than 10 nor more than 60 days before the date of the
meeting, unless otherwise required by statute, either personally or by mail, to
each stockholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be 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. When a meeting is adjourned to another time or
place, 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 which might have
been transacted at the original meeting. If the adjournment is for more than 30
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 6. Voting Lists. The secretary of the corporation shall cause
to be prepared, at least 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 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. The stock books
shall be the only evidence of who are the stockholders entitled to examine the
stock books, the list of stockholders or other books or records of the
corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 7. Quorum. Except as otherwise provided by statute or by the
certificate of incorporation, the holders of a majority of the outstanding
shares of the corporation entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of stockholders, and the affirmative vote
of a majority of the shares represented at a meeting at which a quorum is
present and entitled to vote on the subject matter shall be the act of the
stockholders. If less than a majority of the outstanding shares entitled to vote
are represented at a meeting, a majority of the shares so represented may
adjourn the meeting from time to time in accordance with Section 5 of this
Article II, until a quorum shall be present or represented.
Section 8. Voting of Shares. Unless otherwise provided in the
certificate of incorporation or a resolution of the Board of Directors fixing
the designations, powers, preferences and other rights of any series of
Preferred Stock and subject to the provisions of Section 4 of this Article, each
stockholder entitled to vote at any meeting of stockholders shall be entitled to
one vote at any meeting of stockholders shall be entitled to one vote for each
share of capital stock held by him which has voting power upon the matter in
question. In the election of directors each record holder of stock entitled to
vote at such election shall have the right to vote the number of shares owned by
him for as many persons as there are directors to be elected, and for whose
election he has the right to vote. Cumulative voting for any purpose shall not
be allowed.
Section 9. Voting of Shares by Certain Holders. Persons holding voting
stock in a fiduciary capacity shall be entitled to vote the shares so held.
Persons whose voting stock is pledged shall be entitled to vote, unless in the
transfer by the pledgor on the books of the corporation he has expressly
empowered the pledgee to vote thereon, in which case only the pledgee or his
proxy may represent such shares and vote thereon. If shares entitled to vote
stand of record in the names of two or more persons, whether fiduciaries,
members of a partnership, joint tenants, tenants in common, tenants by the
entirety or otherwise, or if two or more persons have the same fiduciary
relationship respecting the same shares, unless the secretary of the corporation
is given written notice to the contrary and is furnished with a copy of the
instrument or order appointing them or creating the relationship wherein it is
so provided, their acts with respect to voting shall be as set forth in the
General Corporation Law of the State of Delaware.
Section 10. Conduct of Meetings. The chairman of the annual or any
special meeting of the stockholders shall be the chairman of the Board of
Directors (or any person designated by the Board of Directors), unless and until
a different person is elected by a majority of the shares of stock entitled to
vote, represented in person or by proxy present at a duly constituted meeting at
which a quorum is present.
Meeting of stockholders shall be conducted in accordance with the
following rules:
(a) The chairman of the meeting shall have
absolute authority over matters of procedure and there shall be no appeal from
the ruling of the chairman. If the chairman, in his absolute discretion, deems
it advisable to dispense with the rules of parliamentary procedures as to any
one meeting of stockholders or part thereof, the chairman shall so state and
shall clearly state the rules under which the meeting or appropriate part
thereof shall be conducted.
(b) If disorder should arise which prevents
continuation of the legitimate business of the meeting, the chairman may
quit the chair and announce the adjournment of the meeting; and upon his so
doing, the meeting is immediately adjourned; provided, however, if a majority of
the shares entitled to vote, represented in person or by proxy, present at a
duly constituted meeting at which a quorum is present desire to continue
such meeting, they may by, affirmative vote, elect a new chairman and continue
such meeting.
(c) The chairman may ask or require that anyone
not a bona fide stockholder or proxy leave the meeting.
(d) A resolution or motion shall be considered
for vote only if proposed by a stockholder or a duly authorized proxy and
seconded by an individual, who is a stockholder or a duly authorized proxy,
other than the individual who proposed the resolution or motion.
Section 11. Notice of Stockholder Business. At an annual meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors (including any
shareholder proposals included therein pursuant to Rule 14a-8 under the
Securities Exchange Act of 1934, as amended), (b) otherwise properly brought
before the meeting by or at the direction of the Board of Directors, or (c)
otherwise properly brought before the meeting by a stockholder. For business to
be properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the secretary of the
Corporation, and be presented in the manner provided in Section 10 of this
Article II. To be timely, a stockholders notice must be delivered to, or mailed
and received at, the principal executive offices of the Corporation not less
than sixty (60) days nor more than ninety (90) days prior to the first
anniversary of the date on which notice of the prior years annual meeting was
mailed to stockholders. A stockholders notice to the secretary shall set forth
as to each such matter the stockholder proposes to bring before the annual
meeting: (a) a brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting; (b) the name and address, as they appear on the Corporations books, of
the stockholder(s) proposing such business, or the name and address of the
beneficial holder(s) or other party on whose behalf the proposal is made; (c)
the class and number of shares of the Corporation that are beneficially owned by
the stockholder(s) or beneficial holder(s) or other party on whose behalf the
proposal is made; and (d) any material interest of the stockholder(s) or
beneficial holder(s) or other party on whose behalf the proposal is made in such
business. Notwithstanding anything in the Bylaws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the procedures
set forth in Article II, Section 10 and this Section 11. The chairman of the
annual meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting, and, if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
ARTICLE III
Board of Directors
Section 1. General Powers. The business and affairs of the corporation
shall be managed by or under the direction of its Board of Directors, except as
otherwise provided in the General Corporation Law of the State of Delaware or
the certificate of incorporation. Directors shall be removable in the manner
provided in Section 2 of this Article III.
Section 2. Number, Tenure, Qualifications and Nomination. The number of
directors of the corporation shall be not fewer than three nor more than 15, the
exact number of directors to be determined from time to time by resolution
adopted by the affirmative vote of the whole Board of Directors or by the
affirmative vote of a majority of the outstanding shares of capital stock
entitled to vote generally upon the election of directors (considered for such
purpose as one class). As used in these Bylaws, the term "whole board of
Directors" shall mean the total number of directors that the corporation would
have if there were no vacancies.
Directors shall be elected to one-year terms, to succeed those whose
terms expire. Each director shall hold office until his successor shall have
been elected and qualified or until his death, resignation or removal. Directors
need not be residents of Delaware or stockholders of the corporation.
Only persons who are nominated in accordance with the procedures set
forth in this Section 2 of Article III shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors of the
corporation may be made at a meeting of stockholders by or at the direction of
the Board of Directors or by any stockholder of the corporation entitled to vote
for the election of directors at the meeting who complies with the notice
procedures set forth in this Section 2 of Article III. Such nominations, other
than those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the secretary of the corporation. To be
timely, a stockholders' notice shall be delivered to or mailed and received at
the principal executive offices of the corporation not less than 60 days nor
more than 90 days prior to the meeting; provided, however, that in the event
that less than 70 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. Such stockholder's notice shall set forth: (a)
as to each person whom the stockholder proposes to nominate for election or
re-election as a director, (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) the class and number of shares of the corporation which are owned
by such person and (iv) any other information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including without limitation such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director if elected); and (b) as to the stockholder giving the
notice, (i) the name and address, as they appear on the corporation's books, of
such stockholder and (ii) the class and number of shares of the corporation
which are beneficially owned by such stockholder.
At the request of the Board of Directors, any person nominated by the
Board of Directors for election as a director shall furnish to the secretary of
the corporation that information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee. No person shall be eligible
for election as a director of the corporation unless nominated in accordance
with the procedures set forth in this Section 2 of Article III. The chairman of
the meeting shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the procedures prescribed by
these Bylaws, and if he should so determine, he shall so declare to the meeting
and the defective nomination shall be disregarded. Notwithstanding the
foregoing, nothing contained herein shall limit the authority of stockholders to
act by consent without following the foregoing procedures with respect to the
election of directors without a meeting, without notice and without a vote.
Section 3. Vacancies. Any director may resign at any time by giving
written notice to the corporation. A director's resignation shall take effect at
the time specified therein; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective. Any
vacancy for any reason or any newly created directorship resulting from any
increase in the authorized number of directors may be filled by a majority of
directors then in office, although less than a quorum, or by the affirmative
vote of two directors if there are only two directors remaining, or by a sole
remaining director, or by the stockholders if there are no directors remaining,
and a director so chosen shall hold office until the next election of the class
for which such director has been chosen and until his successor is duly elected
and qualified, unless soon displaced. No decrease in the number of directors
shall shorten the term of any incumbent director.
If the holders of any class or classes of stock or series thereof are
entitled to elect one or more directors, 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 then in office, or by
the affirmative vote of two such directors if there are only two directors if
there are only two directors remaining of such class or classes or series, or by
a sole remaining director so elected, or by the stockholders of such class or
classes or series if there are no such directors remaining, and a director so
chosen shall hold office until the next succeeding annual meeting of
stockholders and until his successor is duly elected and qualified, unless
sooner displaced.
When one or more directors shall resign from the board, effective at a
future date, a majority of directors then in office, including those who have so
resigned, shall have the 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 3 of Article III for the filling of other vacancies.
Section 4. Regular Meetings. A regular meeting of the Board of
Directors shall be held immediately after and at the same place as the annual
meeting of stockholders, or as soon as practicable thereafter at the time and
place, either within or without Delaware or Colorado, determined by the Board of
Directors, for the purpose of electing officers and for the transaction of such
other business as may come before the meeting. The Board of Directors may
provide by resolution the time and place, either within or outside Delaware or
Colorado for the holding of additional regular meetings. Notices of any regular
meetings of the Board of Directors need not be given.
Section 5. Special Meetings. Special meetings of the Board of Directors
may be called by or at the request of the chief executive officer, the president
or any two voting members of the Board of Directors. The person or persons
authorized to call special meetings of the Board of Directors may fix any place,
either within or outside Delaware or Colorado as the place for holding any
special meeting of the Board of Directors called by him or them.
Section 6. Organization. Meetings of the Board of Directors shall be
presided over by the chairman of the board, if any, or in his absence by the
vice chairman of the board, if any, or in their absence by a chairman chosen at
the meeting. The secretary shall act as secretary of the meeting, but in his
absence the chairman of the meeting may appoint any person to act as secretary
of the meeting.
Section 7. Notice. Except as provided in Section 4 of this Article III,
notice of each meeting of the Board of Directors stating the place, day and hour
of the meeting shall be given to each director at least four days prior thereto
by the mailing of written notice by first class, certified or registered mail,
or at least one day prior thereto by personal delivery of written notice or by
telephonic or telegraphic notice. The method of notice need not be the same to
each director. Notice shall be deemed to be given, if mailed, when deposited in
the United States mail, with postage thereon prepaid, addressed to the director
at his business or residence address; if personally delivered, when delivered to
the director or to any responsible employee of the director if delivered to his
business; if telegraphed, when the telegram is delivered to the telegraph
company; if telephoned, when communicated to the director or to any responsible
employee of the director at his place of business. 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 any waiver of notice of such
meeting.
Section 8. Quorum and Voting. A quorum for the transaction of any
business at a meeting of the Board of Directors shall consist of a majority of
the number of directors fixed by Section 2 of this Article III, present in
person, and, except as otherwise provided in the certificate of incorporation or
these Bylaws, the vote of a majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors. If less
than a quorum is present at a meeting, the directors present may adjourn the
meeting from time to time without further notice other than announcement at the
meeting, until a quorum shall be present. No director may vote or act by proxy
or power of attorney at any meeting of the Board of Directors.
Section 9. Committees. The Board of Directors may, from time to time
designate one or more committees as provided by law. Unless the Board of
Directors otherwise provides, any committee designated by the Board of Directors
may make, alter and repeal rules for the conduct of its business. In the absence
of such rules each committee shall conduct its business in the same manner as
the Board of Directors conducts its business pursuant to this Article III of
these Bylaws. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
Section 10. Compensation. The Board of Directors shall have the
authority to fix the compensation of directors. No such payment of compensation
shall preclude any director from serving the corporation in any other capacity
and receiving compensation therefor. Members of any committee of the Board of
Directors may be allowed like compensation for attending committee meetings.
ARTICLE IV
Officers and Agents
Section 1. Enumeration. The president together with the Board of
Directors of the corporation shall have such authority to elect or appoint such
officers as may be necessary to conduct the business of the corporation and to
perform such undertakings, acts and deeds as may be required by law. Any number
of offices may be held by the same person, except that no person may
simultaneously hold the offices of president and secretary.
Section 2. Election and Term of Office. The officers of the corporation
shall be elected by the Board of Directors annually at the first meeting of the
Board of Directors held after each annual meeting of the stockholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. The Board of Directors may
delegate to any officer the power to appoint, or remove subordinate officers,
agents or employees. Each officer shall hold office until his successor shall
have been duly elected and qualified or until his earlier death, resignation or
removal.
Section 3. Salaries. The salaries of the officers shall be as fixed
from time to time by the Board of Directors and no officer shall be prevented
from receiving a salary by reason of the fact that he is also a director of the
corporation.
Section 4. Removal. Any officer or agent elected or appointed by the
Board of Directors may be removed at any time by the Board of Directors, or a
duly authorized committee thereof, as provided in the contract, if any, with
such officer or agent or whenever in the judgment of the Board of Directors or
such committee the best interests of the corporation will be served thereby.
Such removal shall be without prejudice to the contract rights, if any, of the
person so removed. Election or appointment of an officer or agent shall not in
itself create contract rights.
Section 5. Vacancies. Any officer may resign at any time, subject to
any rights or obligations under any existing contracts between the officer and
the corporation, by giving written notice to the corporation. An officer's
resignation shall take effect at the time specified in such notice; and unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Any vacancy occurring in any office by the
death, resignation, removal or otherwise shall be filled by the Board of
Directors for the unexpired portion of the term.
Section 6. Authority and Duties of Officers. The officers of the
corporation shall have the authority and shall exercise the powers and perform
the duties specified below and additional officers may be appointed to perform
such other duties as may be additionally specified by the president, the Board
of Directors or these Bylaws, except that in any event, each officer shall
exercise such powers and perform such duties as may be required by law.
(a) President. The president shall be the
chief executive officer of the corporation unless such title is assigned
to a Chairman of the Board. The president shall, subject to the direction of
the Board of Directors, have general charge and supervision of the corporation.
Unless otherwise provided by the Board of Directors, he shall preside at all
meetings of the stockholders and of the Board of Directors. The president
shall perform such other duties and shall have such other powers as the Board of
Directors may from time to time prescribe.
(b) Vice Presidents. The vice president, (or if
there is more than one then each vice president) shall assist any chief officers
and shall perform such duties as may be assigned to them by any chief officer or
the Board of Directors. The vice president, (or if there is more than one, then
the vice president designated by the Board of Directors, or if there be no such
designation, then the vice presidents in order of their election), shall, at the
request of the appropriate chief officer, or in his absence or inability or
refusal to act, perform the duties of the president and chief operating officer,
and when so acting shall have all of the powers of and be subject to all of the
restrictions upon such chief officer.
(c) Secretary. The secretary shall: (i) keep the
minutes of the proceedings of the stockholders, the Board of Directors and any
Committee of the board; (ii) see that all notices are duly given in accordance
with the provisions of these Bylaws or as required by law; (iii) be custodian of
the corporate records and of the seal of the corporation; (iv) keep at the
corporation's registered office or principal place of business a record
containing the names and addresses of all stockholders and the number and class
of shares held by each, unless such record shall be kept at the office of the
corporation's transfer agent or registrar; (v) have general charge of the
stock books of the corporation, unless the corporation has a transfer agent;
and (vi)in general, perform all duties incident to the office of secretary and
such other duties as from time to time may be assigned to him by the president
or the Board of Directors.
(d) Treasurer. The treasurer shall: (i) have care and
custody of all funds, securities, evidence of indebtedness and other personal
property of the corporation and deposit the same in accordance with the
instructions of the Board of Directors; (ii) receive and give receipts and
acquittances for moneys paid in on account of the corporation, and pay out of
funds on hand all bills, payrolls and other just debts of the corporation of
whatever nature upon maturity; and (iii) perform all other duties incident to
the office of treasurer and such other duties as from time to time may be
assigned by the president or the Board of Directors.
Section 7. Surety Bonds. The Board of Directors may require any
officer, employee or agent of the corporation to execute to the corporation a
bond in such sums and with such sureties as shall be satisfactory to the Board
of Directors, conditioned upon the faithful performance of his duties and for
the restoration to the corporation of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the corporation.
ARTICLE V
Stock
Section 1. Issuance of Shares. The issuance or sale by the corporation
of any shares of its authorized capital stock of any class, including treasury
shares, shall be made only upon authorization by the Board of Directors or a
duly authorized committee thereof, except as otherwise may be provided by
statute.
Section 2. Certificates. Every holder of stock in the corporation shall
be entitled to have a certificate signed by, or in the name of the corporation
by, the chairman or the president or vice president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation, representing the number of shares owned by him in the corporation
registered in certificate form. Any of or all the signatures on the certificate
may be facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
Certificates of stock shall be consecutively numbered and shall be in such form
consistent with law as shall be prescribed by the Board of Directors.
Section 3. Payment for Shares. Except as otherwise required by the
certificate of incorporation shares shall be issued for such consideration (but
not less than the par value thereof) as shall be determined from time to time by
the Board of Directors or duly authorized committee thereof. Treasury shares
shall be disposed of for such consideration as may be determined from time to
time by the Board of Directors or duly authorized committee thereof. Such
consideration shall be paid in such form and in such manner as the Board of
Directors or such committee shall determine. In the absence of actual fraud in
the transaction, the judgment of the directors as to the value of such
consideration shall be conclusive. The capital stock issued by the corporation
shall be deemed to be fully paid and non-assessable stock if: (a) the entire
amount of the consideration has been received by the corporation in the form of
cash, services rendered, personal property, leases of real property or a
combination thereof; or (b) not less than the amount of the consideration
determined to be capital pursuant to statute has been received by the
corporation in such form and the corporation has received a binding obligation
of the subscriber or purchaser to pay the balance of the subscription or
purchase price; provided, however, nothing contained herein shall prevent the
Board of Directors from issuing partly paid shares pursuant to statute.
Section 4. Lost Certificates. In case of the alleged loss, theft,
destruction or mutilation of a certificate of stock the Board of Directors may
direct the issuance of a new certificate in lieu thereof upon such terms and
conditions in conformity with law as it may prescribe. The Board of Directors
may in its discretion require a bond in such form and amount and with such
surety sufficient to indemnify the corporation against any claim that may be
made against it or account of the alleged loss, theft, destruction or mutilation
of any such certificate or the issuance of such new certificate.
Section 5. Transfer of Shares. Upon surrender to the corporation or to
a transfer agent of the corporation of a certificate of stock duly endorsed or
accompanied by proper evidence of succession, assignment 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 the stock books.
Section 6. 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, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
Section 7. Transfer Agents, Registrars and Paying Agents. The Board of
Directors may at its discretion appoint 1 or more transfer agents, registrars
and agents for making payment upon any class of stock, bond, debenture or other
security of the corporation. Such agents and registrars may be located either
within or outside Delaware or Colorado. They shall have such rights and duties
and shall be entitled to such compensation as may be agreed.
ARTICLE VI
Miscellaneous
Section 1. Waivers of Notice. Whenever notice is required to be given
by law, by the certificate of incorporation or by these Bylaws, a written waiver
thereof, signed by the person entitled to said notice, whether before or after
the time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting or (in the case of a stockholder) by proxy 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 was not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, 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.
Section 2. Presumption of Assent. A director of the corporation who is
present at a meeting of the Board of Directors shall be presumed to have
assented to the action taken unless his dissent shall be entered in the minutes
of the meeting or unless he shall file his written dissent to such action with
the person acting as the secretary of the meeting before the adjournment thereof
or shall forward such dissent by registered mail to the secretary of the
corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
Section 3. Voting of Securities by the Corporation. Unless otherwise
provided by resolution of the Board of Directors, on behalf of the corporation
the chief executive officer or any chief officer or officers designated by him
shall attend in person or by substitute appointed by him or them, shall execute
written instruments appointing a proxy or proxies to represent the corporation
at, all meetings of the stockholders of any other corporation, association or
other entity in which the corporations hold any stock or other securities, and
may execute written waivers of notice with respect to any such meetings. At all
such meetings and otherwise, the chief executive officer or any corporate
officer or officers designated by him, in person or by substitute or proxy as
aforesaid, may vote the stock or other securities so held by the corporation and
may execute written consents and any other instruments with respect to such
stock or securities and may exercise any and all rights and powers incident to
the ownership of said stock or securities, subject, however, to the
instructions, if any, of the Board of Directors.
Section 4. Fiscal Year. The fiscal year of the corporation shall
be as established by the Board of Directors.
Section 5. Audits of Books and Accounts. The corporation's books and
accounts shall be audited at such times and by such auditors as shall be
specified and designated by resolution of the Board of Directors.
Section 6. Emergency Bylaws. The Board of Directors may adopt
emergency bylaws in accordance with and pursuant to the provisions therefor from
time to time set forth in the General Corporation Law of the State of Delaware.
Section 7. Amendments. These Bylaws, other than Article II, Sections 2,
4, 7 and 10; Article III, Sections 2, 5 and 7, Article V, Section 3; and Article
VI, Section 7 may be amended or repealed and new Bylaws adopted by the
affirmative vote of not less than a majority of the whole Board of Directors.
These Bylaws may be amended or repealed and new Bylaws adopted by the
affirmative vote of the holders of not less than a majority of the outstanding
shares of stock entitled to vote generally upon the election of directors
(considered for this purpose as one class).
ARTICLE VII
Indemnification
Section 1. Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was a director or officer, of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than permitted prior thereto), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith and such indemnification shall continue as to
an indemnitee who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the indemnitees heirs, executors and
administrators; provided, however, that, except as provided in Section 3 of this
Article VII with respect to proceedings to enforce rights to indemnification,
the corporation shall indemnify any such indemnitee in connection with a
proceeding (or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the Board of Directors of the
corporation.
Section 2. Right to Advancement of Expenses. The right to
indemnification conferred in Section 1 of this Article VII shall include the
right to be paid by the corporation the expenses incurred in defending any
proceeding for which such right to indemnification is applicable in advance of
its final disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law so requires, an
advancement of expenses incurred by an indemnitee in his or her capacity as a
director of officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter a
"final adjudication") that such indemnitee is not entitled to be indemnified for
such expenses under this Section or otherwise.
Section 3. Right of Indemnitee to Bring Suit. The rights to
indemnification and to the advancement of expenses conferred in Sections 1 and 2
of this Article shall be contract rights; and no amendment of such sections
shall adversely affect the rights of any director or officer thereunder insofar
as such rights relate to facts or occurrences prior to the date of such
amendment. If a claim under either such section is not paid in full by the
corporation within thirty days after a written claim has been received by the
corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be fifteen days, the indemnitee may at
any time thereafter bring suit against the corporation to recover the unpaid
amount of the claim. If successful in whole or in part in any such suit, or in a
suit brought by the corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the indemnitee shall be entitled to be paid also
the expense of prosecuting or defending such suit. In any suit (i) brought by
the indemnitee to enforce a right to indemnification hereunder (but not in a
suit to enforce a right to an advancement of expenses), or (ii) brought by the
corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, it shall be a defense (in the case of a suit by an indemnitee) or
the corporation shall be entitled to recover such expenses (in the case of a
suit by the corporation) if it is determined by final adjudication that the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the corporation
(including its board of directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Section or otherwise shall be on the corporation.
Section 4. Non-Exclusivity of Rights. The rights to indemnification and
to the advancement of expenses conferred in this Article VII shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, the corporations certificate of incorporation by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 5. Insurance. The corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
