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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AEARO CORPORATION
(Formerly Cabot Safety Holdings Corporation)
(Exact Name of Registrant as specified in Charter)
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<S> <C>
Delaware 13-3840356
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(STATE of INCORPORATION OR ORGANIZATION) (I. R. S. Employer Identification No.)
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One Washington Mall - 8th Floor, Boston, MA 02108-2610
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(ADDRESS of Principal Executive Office) (Zip Code)
Securities to; be registered pursuant to Section 12(b) of the Act:
Name of Each exchange on which
Title of each Class to be so registered each class is to be registered
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Common Stock, $.01 par value New York Stock Exchange
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Securities to be registered pursuant to Section 12(g) of the Act:
Not Applicable
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
A description of the Common Stock of the Registrant is set forth under
"Description of Capital Stock" in the Prospectus that constitutes part of the
Registrant's Registration Statement on Form S-1, File No. 333-05047, which has
been filed with the Securities and Exchange Commission on June 3, 1996, and is
incorporated herein by reference.
ITEM 2. EXHIBITS
The securities described herein are to be registered on the New York Stock
Exchange, on which no other securities of the Registrant are registered.
Accordingly, the following exhibits, required in accordance with Part II to the
Instructions as to Exhibits on Form 8-A, have been duly filed with the New York
Stock Exchange:
A. The Registration Statement
B. Second Amended and Restated Certificate of Incorporation of the
Registrant
C. Amended and Restated By-laws of the Registrant.
The following exhibit, required in accordance with Part II to the Instructions
as to Exhibits on Form 8-A, will be duly filed with the New York Stock Exchange
as soon as such exhibit is made available to the Company:
D. Specimen of Registrant's Common Stock certificate.
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned thereto duly authorized.
AEARO CORPORATION
Date: June 18, 1996 By: /s/ Mark V.B. Tremallo
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Mark V.B. Tremallo
General Counsel and Secretary
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Exhibit B
[DRAFT - PROPOSED]
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AEARO CORPORATION
Aearo Corporation, a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is Aearo Corporation. The date of the
filing of its original Certificate of Incorporation with the Secretary of State
of the State of Delaware was March 10, 1995. The name under which the
Corporation filed its original Certificate of Incorporation was CBAQ Holdings
Corporation.
2. This Second Amended and Restated Certificate of Incorporation
amends, restates and integrates the provisions of the Amended and Restated
Certificate of Incorporation of the Corporation filed with the Secretary of
State of the State of Delaware on [INSERT DATE] (the "First Amended and Restated
Certificate of Incorporation"), was duly adopted by the Board of Directors of
the Corporation in accordance with the provisions of Sections [141(f),] 242 and
245 of the General Corporation Law of the State of Delaware (the "DGCL") and was
duly adopted by the stockholders of the Corporation in accordance with the
applicable provisions of Sections 242 and 245 of the DGCL.
3. The text of the First Amended and Restated Certificate of
Incorporation is hereby amended and restated in its entirety to provide as
herein set forth in full.
ARTICLE I
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NAME
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The name of the Corporation is Aearo Corporation.
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ARTICLE II
REGISTERED OFFICE
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The address of the registered office of the Corporation in the State of
Delaware is 32 Loockerman Square, Suite L-100, in the City of Dover, County of
Kent. The name of its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
ARTICLE III
PURPOSES
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The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
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Section 1. Number of Shares.
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The total number of shares of capital stock which the Corporation shall
have the authority to issue is 60,200,000 shares, of which (a) 200,000 shares
shall be redeemable preferred stock, par value $.01 per share (the "Redeemable
Preferred Stock"), (b) 10,000,000 shares shall be preferred stock, par value
$.01 per share (the "Undesignated Preferred Stock") and (c) 50,000,000 shares
shall be common stock, par value $.01 per share (the "Common Stock"). As set
forth in this Article IV, the Board of Directors or any authorized committee
thereof is authorized from time to time to establish and designate one or more
series of Undesignated Preferred Stock, to fix and determine the variations in
the relative rights and preferences as between the different series of
Undesignated Preferred Stock in the manner hereinafter set forth in this Article
IV, and to fix or alter the number of shares comprising any such series and the
designation thereof to the extent permitted by law.
The number of authorized shares of the class of Undesignated Preferred
Stock may be increased or decreased (but not below the number of shares
outstanding) by the affirmative vote of the holders of a majority of the Common
Stock entitled to vote, without a vote of the holders of the Undesignated
Preferred Stock, pursuant to the resolution or resolutions establishing the
class of Undesignated Preferred Stock or this Second Amended and Restated
Certificate of Incorporation, as it may be amended from time to time.
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Section 2. General.
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The designations, powers, preferences and rights of, and the
qualifications, limitations and restrictions upon, each class or series of stock
shall be determined in accordance with, or as set forth below in, Sections 3, 4
and 5 of this Article IV.
Section 3. Common Stock.
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Subject to all of the rights, powers and preferences of the
Undesignated Preferred Stock and the Redeemable Preferred Stock, and except as
provided by law or in this Article IV (or in any certificate of designation of
any series of Undesignated Preferred Stock) or by the Board of Directors or any
authorized committee thereof pursuant to this Article IV:
(a) the holders of the Common Stock shall have the exclusive
right to vote for the election of directors and on all other matters requiring
stockholder action, each share being entitled to one vote;
(b) dividends may be declared and paid or set apart for
payment upon the Common Stock out of any assets or funds of the Corporation
legally available for the payment of dividends, but only when and as declared by
the Board of Directors or any authorized committee thereof; and
(c) upon the voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the net assets of the Corporation shall be
distributed pro rata to the holders of the Common Stock in accordance with their
respective rights and interests.
Section 4. Undesignated Preferred Stock.
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Subject to any limitations prescribed by law, the Board of Directors or
any authorized committee thereof is expressly authorized to provide for the
issuance of the shares of Undesignated Preferred Stock in one or more series of
such stock, and by filing a certificate pursuant to applicable law of the State
of Delaware, to establish or change from time to time the number of shares to be
included in each such series, and to fix the designations, powers, preferences
and the relative, participating, optional or other special rights of the shares
of each series and any qualifications, limitations and restrictions thereof. Any
action by the Board of Directors or any authorized committee thereof under this
Section 4 shall require the affirmative vote of a majority of the directors then
in office or a majority of the members of such committee. The Board of Directors
or any authorized committee thereof shall have the right to determine or fix one
or more of the following with respect to each series of Undesignated Preferred
Stock to the extent permitted by law:
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(a) The distinctive serial designation and the number of
shares constituting such series;
(b) The dividend rates or the amount of dividends to be paid
on the shares of such series, whether dividends shall be cumulative and, if so,
from which date or dates, the payment date or dates for dividends, and the
participating and other rights, if any, with respect to dividends;
(c) The voting powers, full or limited, if any, of the shares
of such series;
(d) Whether the shares of such series shall be redeemable and,
if so, the price or prices at which, and the terms and conditions on which, such
shares may be redeemed;
(e) The amount or amounts payable upon the shares of such
series and any preferences applicable thereto in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation;
(f) Whether the shares of such series shall be entitled to the
benefit of a sinking or retirement fund to be applied to the purchase or
redemption of such shares, and if so entitled, the amount of such fund and the
manner of its application, including the price or prices at which such shares
may be redeemed or purchased through the application of such fund;
(g) Whether the shares of such series shall be convertible
into, or exchangeable for, shares of any other class or classes or of any other
series of the same or any other class or classes of stock of the Corporation
and, if so convertible or exchangeable, the conversion price or prices, or the
rate or rates of exchange, and the adjustments thereof, if any, at which such
conversion or exchange may be made, and any other terms and conditions of such
conversion or exchange;
(h) The price or other consideration for which the shares of
such series shall be issued;
(i) Whether the shares of such series which are redeemed or
converted shall have the status of authorized but unissued shares of
Undesignated Preferred Stock (or series thereof) and whether such shares may be
reissued as shares of the same or any other class or series of stock; and
(j) Such other powers, preferences, rights, qualifications,
limitations and restrictions thereof as the Board of Directors or any authorized
committee thereof may deem advisable.
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Section 5. Redeemable Preferred Stock.
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(a) CERTAIN DEFINITIONS.
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As used herein, the following terms shall have the following meanings
(with terms defined in the singular having comparable meanings when used in the
plural and vice versa), unless the context otherwise requires:
"BENEFICIAL OWNER" has the meaning set forth in Rule 13d-3 under the
Exchange Act.
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"BUSINESS DAY" means a day other than a Saturday, Sunday, national or New
York State holiday or other day on which commercial banks in New York City are
authorized or required by law to close.
"CALL REDEMPTION" has the meaning specified in Section 6(a) hereof.
"CAPITAL STOCK" means any and all shares, interests, participation, rights
or other equivalents (however designated) of corporate stock.
"COMMON STOCK" means the common stock, par value $.01 per share, of the
Company and any other class of common stock hereafter authorized by the Company
from time to time.
"COMPANY" means Cabot Safety Holdings Corporation or any successor entity
thereof.
"DIVIDEND PAYMENT DATE" means the September 30, December 31, March 31 and
June 30, of each year.
"DIVIDEND PERIOD" means the Initial Dividend Period and, thereafter, each
Quarterly Dividend Period.
"DIVIDEND RECORD DATE" means, with respect to the dividend payable on each
Dividend Payment Date, the immediately preceding September 15, December 15,
March 15, and June 15 or such other record date as may be designated by the
Board of Directors with respect to the dividend payable on such Dividend Payment
Date; provided, however, that such record date may not be more than sixty (60)
days or less than ten (10) days prior to such Dividend Payment Date.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, and the rules and
regulations promulgated thereunder, as the same may be amended from time to
time.
"HOLDER" means a registered holder of shares of Preferred Stock.
"INITIAL DIVIDEND PERIOD" means the dividend period commencing on the
Original Issue Date and ending on and including September 30, 1995.
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"JUNIOR SECURITIES" has the meaning specified in Section (c)(i) hereof.
"LIQUIDATION PREFERENCE" means the Original Liquidation Preference, plus an
amount equal to all accrued and unpaid dividends, including dividends on unpaid
dividends, whether or not declared (including an amount equal to a prorated
dividend from the last Dividend Payment Date to the date such Liquidation
Preference is being determined), with dividends that would otherwise be payable
in additional shares of Preferred Stock being valued at $1,000 per share. The
Liquidation Preference of a share of Preferred Stock will increase on a daily
basis as dividends accrue on such share, whether or not declared, and will
decrease only to the extent such dividends are actually paid, all as provided in
Section (d) hereof.
"ORIGINAL ISSUE DATE" means the date upon which the Preferred Stock was
originally issued by the Company.
"ORIGINAL LIQUIDATION PREFERENCE" means $1,000 per share of Preferred
Stock.
"PARITY SECURITIES" has the meaning specified in Section (c)(ii) hereof.
"PERSON" means any individual, corporation, partnership, trust, joint stock
company, business trust, unincorporated association, joint venture, governmental
authority or other entity of whatever nature.
"PREFERRED STOCK" means the 12.5% Preferred Stock, par value $.01 per
share, of the Company authorized by this Certificate of Designations (as the
same may be amended from time to time).
"QUARTERLY DIVIDEND PERIOD" means the quarterly period commencing on and
including the day after the immediately preceding Dividend Payment Date and
ending on and including the immediately subsequent Dividend Payment Date.
"REDEMPTION DATE" has the meaning specified in Section (f)(iii) hereof.
"REDEMPTION NOTICE" has the meaning specified in Section (f)(ii) hereof.
"REDEMPTION PRICE" means a price per share equal to the Liquidation
Preference as of the applicable Redemption Date.
"SEC" means the Securities and Exchange Commission.
"SENIOR FINANCING DEBT" means (i) the Credit Agreement dated as of July 11,
1995 among Cabot Safety Acquisition Corporation, the lenders parties thereto and
Bankers Trust Company, as administrative agent, as such agreement may be amended
or supplemented from time to time (the "CREDIT AGREEMENT"), (ii) the 12 1/2%
Senior Subordinated Notes due 2005 issued by Cabot Safety Acquisition
Corporation (the "SENIOR SUBORDINATED NOTES"), (iii) any agreement extending the
maturity of, or restructuring all or any portion of, the debt under the Credit
Agreement or the Senior Subordinated Notes or any successor agreements thereto
and (iv) any agreement with one or more financial institutions refinancing all
or any portion of the
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debt under the Credit Agreement or the Senior Subordinated Notes or any
successor agreements thereto.
"STOCKHOLDERS' AGREEMENT" shall mean the Stockholders' Agreement, dated as
of July 11, 1995, among Vestar Equity Partners, L.P., Cabot holdings
Corporation, the Company, and the other parties thereto.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, association or other business entity of which fifty percent (50%)
or more of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof, or fifty percent (50%) or more of the
equity interest therein, is at the time owned or controlled, directly or
indirectly, by any Person or one or more of the other Subsidiaries of such
Person or a combination thereof.
(b) DESIGNATION.
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The series of preferred stock authorized hereunder shall be designated as
the "12.5% Preferred Stock." The number of shares constituting such series shall
be 180,000. The par value of the Preferred Stock shall be $.0l per share. All
shares of Preferred Stock shall be identical with one another in all respect.
(c) RANK.
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The Preferred Stock shall rank, with respect to dividend rights and rights
on liquidation, dissolution and winding-up of the affairs of the Company:
(i) senior to all classes or series of Common Stock of the Company and
to all classes and series of stock of the Company now or hereafter
authorized, issued or outstanding which by their terms expressly provide
that they are junior to the Preferred Stock (collectively referred to
herein as "JUNIOR SECURITIES");
(ii) on a parity with all classes and series of stock of the Company
now or hereafter authorized, issued or outstanding which by their terms
expressly provide that they shall rank on a parity with the Preferred Stock
(collectively referred to herein as "PARITY SECURITIES"); and
(iii) junior to all other classes or series of Capital Stock of the
Company now or hereafter issued.
(d) DIVIDENDS, ETC.
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(i) The Holders of outstanding shares of Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors,
out of funds legally available for the payment of dividends, dividends at
the rate per share of 3.125% of the Original Liquidation Preference per
quarter. All dividends shall be cumulative and shall be payable in arrears
on each Dividend Payment Date commencing on September 30,
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1995, in preference to and with priority over dividends on Junior
Securities. Such quarterly dividends (whether payable in cash or stock or
both) shall be fully cumulative and shall accrue (whether or not earned or
declared, whether or not there are funds legally available therefor),
without interest from the first day of the quarterly period in which such
dividend may be payable as herein provided, except that with respect to the
first quarterly dividends such dividend shall accrue from the Original
Issue Date. Any dividend payments made with respect to Preferred Stock may
be made, subject to the terms hereof, at the option of and in the sole
discretion of the Board of Directors, in cash or, in full or in part, by
issuing fully paid and nonassessable shares of Preferred Stock such that
the Original Liquidation Preference of the shares of Preferred Stock so
issued plus the amount of cash dividend paid in part, if any, is equal to
the amount of the cash dividend which would otherwise be paid on such
Dividend Payment Date if such dividend were paid entirely in cash; PROVIDED
that if the Company intends to pay dividends on any Parity Securities other
than in Junior Securities or Parity Securities, prior to the payment of
such dividend, the Company shall first set aside and irrevocably deposit in
trust for the Holders of the Preferred Stock money sufficient to pay, or
shall pay to such Holders in cash, the then current quarterly dividend on
the Preferred Stock. The issuance of such shares of Preferred Stock (plus
the amount of cash dividends, if any, paid together therewith) shall
constitute full payment of such dividend. In no event shall an election by
the Board of Directors to pay dividends, in full or in part, in cash on any
Dividend Payment Date preclude the Board of Directors from electing either
such alternative in respect of all or any portion of any subsequent
dividend.
(ii) All dividends and distributions paid with respect to shares of
the Preferred Stock pursuant to Section (d)(i) hereof shall be paid pro
rata to the Holders entitled thereto. If the Board of Directors elects on
any Dividend Payment Date to pay any dividend partially in shares of
Preferred Stock, the proportion of such cash and shares of Preferred Stock
shall be the Same for each outstanding share of Preferred Stock. No
interest shall be payable in respect of any dividend payment or payments on
the Preferred Stock which may be in arrears. Any dividend not paid pursuant
to this Section (d) shall be fully cumulative and shall accrue (whether or
not earned or declared), within interest as, set forth in Section (d)(i)
hereof and shall be in arrears until paid. Dividends shall accrue as set
forth in Section (d)(i) hereof (whether or not earned or declared, whether
or not permitted under any agreement of the Company and whether or not
there are funds legally available therefor), without interest on any such
dividend which is in arrear as through such dividend had been paid on the
relevant Dividend Payment Date in shares of Preferred Stock pursuant to
Section (d)(i) hereof.
(iii) The Company shall not declare, pay or set apart for payment any
dividend on any of the Junior Securities or make any distribution in
respect thereof either directly or indirectly and whether in cash,
obligations or shares of the Company or other property, unless (a) the
Company shall have satisfied all of its redemption and repurchase
obligations under Section (f) hereof, if any, (b) in the case of a dividend
or distribution other than a dividend or distribution payable solely in
additional Junior Securities, dividends shall have been paid in full in
respect of the Preferred Stock on all Preferred Stock shall have been
redeemed by the Company pursuant to Section (f)
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hereof or funds shall have been redeemed by the Company pursuant to Section
(f) hereof or funds shall have been set apart sufficient for such
redemption and (c) the Company is in compliance with any and all of its
covenants hereunder.
(iv) Whenever dividends on the Preferred Stock are in arrears, the
Company shall not declare dividends on or make any other distribution in
respect of any Parity Securities except for dividends paid pro rata on the
Preferred Stock.
(v) Each fractional share of Preferred Stock outstanding shall be
entitled to a ratably proportionate amount of dividends accruing with
respect to each outstanding share of Preferred Stock pursuant to Section
(d)(i) hereof, and all such dividends with respect to such outstanding
fractional shares shall be fully cumulative and shall accrue (whether or
not declared), and shall be payable in the same manner and at such times as
provided for in Section (d)(i) hereof with respect to dividends on each
outstanding share of Preferred Stock. The amount of dividends accrued on
the Preferred Stock for any period less than a full Quarterly Dividend
Period (including the Initial Dividend Period) shall be equal to a pro rata
portion of the total dividend payable for the Quarterly Dividend Period
during which such period occurs, based on the actual number of days elapsed
in such period for which payable and the total number of days in the
applicable Quarterly Dividend Period. Dividends shall accrue on a daily
basis during each Dividend Period as provided above, and the Liquidation
Preference of each outstanding share of Preferred Stock shall be
correspondingly increased on a daily basis. Each such dividend shall be
payable to Holders of record as their names shall appear on the stock books
of the Company on the Dividend Record Date for such dividends, except that
dividends in arrears for any past Dividend Payment Date may be declared and
paid at any time without reference to such regular Dividend Payment Date to
Holder of record on such date not more than sixty (60) days or less than
ten (10) days prior to the date of payment as shall be determined by the
Board of Directors.
(vi) Dividends shall cease to accrue in respect of any particular
share of Preferred Stock on the Redemption Date with respect thereto.
(vii) The Company shall not enter into any agreement that prohibits,
conflicts with or would be breached by the Company's performance of its
obligations hereunder.
(e) PAYMENT ON LIQUIDATION.
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(i) Upon any involuntary liquidation, dissolution or winding-up of the
affairs of the Company, the Holders of Preferred Stock will be entitled to
receive out of the assets of the Company available for distribution to the
holders of its Capital Stock, whether such assets are capital or surplus,
(A) an amount in cash per share equal to the Liquidation Preference
determined as of the date of such involuntary liquidation, dissolution or
winding-up, before any payment or other distribution is made on any
winding-up, before any payment or other distribution is Junior Securities,
including Common Stock of the Company and (B) cash per share on a ratable
basis with the holders of Parity Securities, up to the amount of the
Liquidation Preference determined as of the date of such involuntary
liquidation, dissolution or winding-up. Holders of
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Preferred Stock shall not be entitled to any other distribution in the
event of involuntary liquidation, dissolution or winding up of the affairs
of the Company. If upon any involuntary liquidation, dissolution or winding
up of the affairs of the Company, the assets of the Company are not
sufficient to pay in full the liquidation payments payable to the holders
of outstanding shares of the Preferred Stock and the holders of any Parity
Securities, then all such holders shall share equally and ratably in any
distribution of assets in proportion to the full liquidation payments
determined as of the date of such involuntary liquidation, dissolution or
winding-up, to which each of them is entitled.
(ii) For purposes of this Section (e) only, neither the sale, lease,
conveyance, exchange or transfer (for cash, shares of stock, securities or
other consideration) of all or substantially all of the property or assets
of the Company nor the consolidation or merger of the Company with or into
one or more corporations shall be deemed to be a liquidation, dissolution
or winding-up of the affairs of the Company unless such sale, lease,
conveyance, exchange, transfer, consolidation or merger shall be in
connection with any such liquidation, dissolution or winding-up.
(f) REDEMPTION.
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(i) CALL REDEMPTION. The Company may redeem at the option of the
Company in its sole discretion, to the extent it has funds legally available
therefor, at any time or from time to time, in whole or in part, shares of
Preferred Stock (a "CALL REDEMPTION") at the Redemption Price. With respect to
any Call Redemption of fewer than all the outstanding shares of Preferred Stock,
the number of shares to be redeemed shall be determined by the Board of
Directors and the shares to be redeemed shall be selected PRO RATA.
(ii) NOTICE OF CALL REDEMPTION. Notice of any Call Redemption of
shares of Preferred Stock, specifying the time and place of redemption and the
Redemption Price (a "REDEMPTION NOTICE"), shall be sent by overnight delivery
service to each Holder of Preferred Stock to be redeemed, at the address for
such Holder shown on the Company's record not more than sixty (60) nor less than
thirty (30) days prior to the Redemption Date. If less than all the shares of
Preferred Stock owned by such Holder are then to be redeemed, the Redemption
Notice shall also specify the number of shares which are to be redeemed;
PROVIDED, however, that no failure to give such Redemption Notice nor any
defect therein shall affect the validity of the procedure for the redemption of
any shares of Preferred Stock to be redeemed except as to the Holder to whom the
Company has failed to give said Redemption Notice or except as to the Holder
whose Redemption Notice was defective. Each such Redemption Notice shall state:
(i) the Redemption Date; (ii) the Redemption Price; (iii) the number of shares
of Preferred Stock to be redeemed and, if fewer than all the shares of Preferred
Stock held by a Holder are to be redeemed, the number of shares thereof to be
redeemed from such Holder; (iv) the manner and place or places at which payment
for the shares of Preferred Stock offered for redemption will be made,
presentation and surrender to the Company of the certificates evidencing the
shares being redeemed; (v) that dividends on the shares of Preferred Stock being
redeemed shall cease to accrue on the Redemption Date unless the Company
defaults in the payment of the Redemption Price; and (vi) that the rights of
Holden of Preferred Stock as stockholder of the Company with respect to shares
being redeemed shall terminate as of the Redemption Date unless the Company
defaults in the
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payment of the Redemption Price. Upon mailing any such Redemption Notice, the
Company shall become obligated to redeem at the Redemption Price on the
applicable Redemption Dater all shares of Preferred Stock therein specified.
(iii) REDEMPTION DATE. The Company shall fix the date for a Call
Redemption (the "Redemption Date") no earlier than thirty (30) but not more than
sixty (60) days after the Redemption Notice is sent as set forth in Section
(f)(ii) hereof.
(iv) PAYMENT AND SURRENDER. On any Redemption Date, the full
Redemption Price shall become payable in cash for the shares of Preferred Stock
being redeemed on such Redemption Date. As a condition of payment of the
Redemption Price, each Holder of Preferred Stock must surrender the certificate
or certificates representing the shares of Preferred Stock being redeemed to the
Company in the manner and at the place designated in the Redemption Notice. Each
surrendered certificate shall be canceled and refired. All redemption payments
will be made to the Holders of the shares being redeemed.
(v) TERMINATION. On any Redemption Date, unless the Company defaults
in the payment in full of the Redemption Price, dividends on the Preferred Stock
called for redemption shall cease to accumulate, and all rights of Holders of
such redeemed shares shall terminate, except for the right to receive the
Redemption Price.
(g) CERTAIN COVENANTS.
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(i) Redemptions, Etc.
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(A) No Junior Securities, nor any warrants, rights, calls or options
exercisable for or convertible into, or any obligations evidencing the
right to purchase or acquire, any Junior Securities, may be repurchased,
redeemed or otherwise acquired or retired for value, either directly or
indirectly, nor may funds be apart for payment with respect thereto either
directly or indirectly, whether in cash, obligations or shares of the
Company or other property, so long as any shares of Preferred Stock shall
be outstanding; provided, that the limitations of the foregoing sentence
shall not apply to the repurchase of such Junior Securities, warrants,
rights, calls, options or obligations (including any accrued interest or
dividends thereon) owned by any employee of the Company or any of its
Subsidiaries or any of such employee's permitted transferees upon the
death, disability, retirement of other termination of employment of such
employee pursuant to the terms of a subscription agreement or option
agreement between the Company and such employee to the extent that such
repurchase is not an event which would constitute (or with notice or lapse
of time or both would constitute) an event of default (which event of
default has not been cured or waived) under any Senior Financing Debt.
(B) Parity Securities, nor any warrants, rights, calls or options
exercisable for or convertible into, or any obligations evidencing the
right to purchase or acquires any Parity Securities, may be repurchased,
redeemed or otherwise acquired or retired for value either directly or
indirectly, nor may funds be set apart for payment with respect thereto
either directly or indirectly, whether in cash, obligations or shares of
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the Company or other property, so long as any seemed dividends on the
Preferred Stock shall remain unpaid
(ii) Subsidiary Payments.
-------------------
The Company shall not permit any Subsidiary of the Company to Make any
payments in respect of dividends or other distributions on, or repurchase,
redemption, or other acquisition or retirement for value of, either directly or
indirectly, securities of the Company of any class for any reason unless the
Company would be permitted by this Section (g) or Section (d) hereof to make
such payments.
(h) VOTING RIGHTS.
-------------
(i) Preferred Stock, except as otherwise required by law or as
provided in this Section (h), shall be non-voting. The increase or decrease in
the amount of authorized capital stock any class, including Preferred Stock,
shall not require the consent of the holders of Preferred Stock and shall not be
deemed to materially and adversely affect the specified designations,
preferences or special rights of the Preferred Stock.
(ii) Without the written approval of each Holder of shares of
Preferred Stock then outstanding, the Company will not merge or consolidate with
or into any other Person in any transaction in which the Common Stock would be
converted into or exchanged, in whole or in part, for cash (other than in
respect of fractional shares), securities or other property other than common
stock of the surviving or resulting corporation, unless the consideration
payable to the Holders of Preferred Stock in such transactions an amount in cash
equal to the Liquidation Preference of such Preferred Stock.
(iii) The written approval of each Holder of shares of Preferred Stock
then outstanding shall be necessary for authorizing, effecting or validating the
amendment, alteration or repeal of any of the provisions of the Certificate of
Incorporation or of any certificate amendatory thereof or supplemental thereto
(including any Certificate of Designation or any similar document relating to
any series of Preferred Stock) which would adversely affect the preferences,
rights, powers or privileges of the Preferred Stock;
(i) MULTILATED OR MISSING PREFERRED STOCK CERTIFICATES.
--------------------------------------------------
If any of the Preferred Stock certificates shall be mutilated, lost, stolen
or destroyed, the Company shall issue, in exchange and substitution for any upon
cancellation of the mutilated Preferred Stock certificate, or in lieu of and
substitution for the Preferred Stock certificate lost, stolen or destroyed, a
new Preferred Stock certificate of like tenor and representing an equivalent
amount of shares of Preferred Stock, but only upon receipt of evidence of such
loss, theft or destruction of such Preferred Stock certificate and indemnity, if
requested.
12
<PAGE> 16
(j) REISSUANCE OF PREFERRED STOCK.
-----------------------------
Shares of Preferred Stock that have been issued and reacquired in any
manner, including shares purchased or redeemed or exchanged, shall (upon
compliance with any applicable provisions of the laws of the State of Delaware)
have the status of authorized and unissued shares of preferred stock
undesignated as to series and, subject to Section (h) hereof, may be
redesignated and reissued as part of any series of preferred stock other than
the Preferred Stock.
(k) BUSINESS DAY.
------------
If any payment, redemption or exchange shall be required by the terms
hereof to be made on a day that is not a Business Day, such payment, redemption
or exchange shall be made on the immediately succeeding Business Day.
(l) HEADINGS OF SUBDIVISIONS.
------------------------
The headings of various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
(m) SEVERABILITY OF PROVISIONS.
--------------------------
If any right, preference or limitation of the Preferred Stock set forth in
these resolutions and the Certificate of Designations filed pursuant hereto (as
such Certificate of Designations may be amended from time to time) is invalid,
unlawful or incapable of being enforced by reason of any rule or law or public
policy, all other rights, preferences and limitations set forth in such
Certificate of Designation, as amended, which can be given effect without the
invalid, unlawful or unenforceable right, preference or limitation shall,
nevertheless remain in full force and effect, and no right, preference or
limitation herein set forth shall be deemed dependent upon any other such right,
preference or limitation unless as expressed herein.
(n) NOTICE TO THE COMPANY.
---------------------
All notices and other communications required or permitted to be given to
the Company hereunder shall be made by courier to the Company at its principal
executive offices (currently located on the date of the adoption of these
resolutions at the following address: Cabot Safety Holdings Corporation, One
Washington Mall - 8th Floor, Boston, MA 02108-2610. Attention: General Counsel.
Minor imperfections in any such notice shall not affect the validity thereof.
(o) LIMITATIONS.
-----------
Except as may otherwise be required by law, the shares of Preferred Stock
shall not have any powers, preferences or relative, participating, optional or
other special rights other than those specifically set forth in this resolution
(as such resolution may be amended from time to time) or otherwise in the
certificate of incorporation of the Company.
13
<PAGE> 17
14
<PAGE> 18
(p) No share or shares of the Redeemable Preferred Stock acquired by
the Corporation by reason of redemption, purchase or otherwise shall be
reissued, and all such shares shall be canceled, retired and eliminated from
the shares which the Corporation shall be authorized to issue. The Corporation
may from time to time take such appropriate corporate action as may be
necessary to reduce the authorized number of shares of the Redeemable Preferred
Stock accordingly.
ARTICLE V
STOCKHOLDER ACTION
------------------
Any action required or permitted to be taken by the stockholders of the
Corporation at any annual or special meeting of stockholders of the Corporation
must be effected at a duly called annual or special meeting of stockholders and
may not be taken or effected by a written consent of stockholders in lieu
thereof.
ARTICLE VI
DIRECTORS
---------
Section 1. General.
-------------------
The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors except as otherwise provided
herein or required by law.
Section 2. Election of Directors.
---------------------------------
Election of directors need not be by written ballot unless the By-laws
of the Corporation shall so provide.
Section 3. Terms of Directors.
------------------------------
The number of directors of the Corporation shall be fixed by resolution
duly adopted from time to time by the Board of Directors. The directors, other
than those who may be elected by the holders of any series of Undesignated
Preferred Stock of the Corporation, shall be classified, with respect to the
term for which they severally hold office, into three classes, as nearly equal
in number as possible. The initial Class I Directors of the Corporation shall be
15
<PAGE> 19
[INSERT NAMES]; the initial Class II Directors of the Corporation shall be
[INSERT NAMES]; and the initial Class III Directors of the Corporation shall be
[INSERT NAMES]. The initial Class I Directors shall serve for a term expiring at
the annual meeting of stockholders to be held in [1997]; the initial Class II
Directors shall serve for a term expiring at the annual meeting of stockholders
to be held in [1998]; and the initial Class III Directors shall serve for a term
expiring at the annual meeting of stockholders to be held in [1999]. At each
annual meeting of stockholders, the successor or successors of the class of
directors whose term expires at that meeting shall be elected by a plurality of
the votes of the shares present in person or represented by proxy at such
meeting and entitled to vote on the election of directors, and shall hold office
for a term expiring at the annual meeting of stockholders held in the third year
following the year of their election. The directors elected to each class shall
hold office until their successors are duly elected and qualified or until their
earlier resignation or removal.
Notwithstanding the foregoing, whenever, pursuant to the provisions of
Article IV of this Second Amended and Restated Certificate of Incorporation, the
holders of any one or more series of Undesignated Preferred Stock shall have the
right, voting separately as a series or together with holders of other such
series, to elect directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features of such
directorships shall be governed by the terms of this Second Amended and Restated
Certificate of Incorporation and any certificates of designation applicable
thereto, and such directors so elected shall not be divided into classes
pursuant to this Section 3.
During any period when the holders of any series of Undesignated
Preferred Stock have the right to elect additional directors as provided for or
fixed pursuant to the provisions of Article IV hereof, then upon commencement
and for the duration of the period during which such right continues: (a) the
then otherwise total authorized number of directors of the Corporation shall
automatically be increased by such specified number of directors, and the
holders of such Undesignated Preferred Stock shall be entitled to elect the
additional directors so provided for or fixed pursuant to said provisions, and
(b) each such additional director shall serve until such director's successor
shall have been duly elected and qualified, or until such director's right to
hold such office terminates pursuant to said provisions, whichever occurs
earlier, subject to such director's earlier death, disqualification, resignation
or removal. Except as otherwise provided by the Board in the resolution or
resolutions establishing such series, whenever the holders of any series of
Undesignated Preferred Stock having such right to elect additional directors are
divested of such right pursuant to the provisions of such stock, the terms of
office of all such additional directors elected by the holders of such stock, or
elected to fill any vacancies resulting from the death, resignation,
disqualification or removal of such additional directors, shall forthwith
terminate and the total and authorized number of directors of the Corporation
shall be reduced accordingly.
Section 4. Vacancies.
--------------------
16
<PAGE> 20
Subject to the rights, if any, of the holders of any series of
Undesignated Preferred Stock to elect directors and to fill vacancies in the
Board of Directors relating thereto, any and all vacancies in the Board of
Directors, however occurring, including, without limitation, by reason of an
increase in size of the Board of Directors, or the death, resignation,
disqualification or removal of a director, shall be filled solely by the
affirmative vote of a majority of the remaining directors then in office, even
if less than a quorum of the Board of Directors. Any director appointed in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or the vacancy occurred and until such director's successor shall have
been duly elected and qualified or until his or her earlier resignation or
removal. Subject to the rights, if any, of the holders of any series of
Undesignated Preferred Stock to elect directors, when the number of directors is
increased or decreased, the Board of Directors shall determine the class or
classes to which the increased or decreased number of directors shall be
apportioned; provided, however, that no decrease in the number of directors
shall shorten the term of any incumbent director. In the event of a vacancy in
the Board of Directors, the remaining directors, except as otherwise provided by
law, may exercise the powers of the full Board of Directors until the vacancy is
filled.
Section 5. Removal.
------------------
Subject to the rights, if any, of any series of Undesignated Preferred
Stock to elect directors and to remove any director whom the holders of any such
stock have the right to elect, any director (including persons elected by
directors to fill vacancies in the Board of Directors) may be removed from
office (a) only with cause and (b) only by the affirmative vote of the holders
of two-thirds of the shares then entitled to vote at an election of directors.
At least 30 days prior to any meeting of stockholders at which it is proposed
that any director be removed from office, written notice of such proposed
removal shall be sent to the director whose removal will be considered at the
meeting. For purposes of this Second Amended and Restated Certificate of
Incorporation, "cause," with respect to the removal of any director shall mean
only (i) conviction of a felony, (ii) declaration of unsound mind by order of
court, (iii) gross dereliction of duty, (iv) commission of any action involving
moral turpitude, or (v) commission of an action which constitutes intentional
misconduct or a knowing violation of law if such action in either event results
both in an improper substantial personal benefit and a material injury to the
Corporation.
ARTICLE VII
LIMITATION OF LIABILITY
-----------------------
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for
17
<PAGE> 21
liability (a) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) under
Section 174 of the DGCL or (d) for any transaction from which the director
derived an improper personal benefit. If the DGCL is amended after the effective
date of this Second Amended and Restated Certificate of Incorporation to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the DGCL, as
so amended.
Any repeal or modification of this Article VII by either of (i) the
stockholders of the Corporation or (ii) an amendment to the DGCL, shall not
adversely affect any right or protection existing at the time of such repeal or
modification with respect to any acts or omissions occurring before such repeal
or modification of a person serving as a director at the time of such repeal or
modification.
ARTICLE VIII
AMENDMENT OF BY-LAWS
--------------------
Section 1. Amendment by Directors
---------------------------------
Except as otherwise provided by law, the By-laws of the Corporation may
be amended or repealed by the Board of Directors by the affirmative vote of a
majority of the directors then in office.
Section 2. Amendment by Stockholders
------------------------------------
The By-laws of the Corporation may be amended or repealed at any annual
meeting of stockholders, or special meeting of stockholders called for such
purpose, by the affirmative vote of at least two-thirds of the shares present in
person or represented by proxy at such meeting and entitled to vote on such
amendment or repeal, voting together as a single class; provided, however, that
if the Board of Directors recommends that stockholders approve such amendment or
repeal at such meeting of stockholders, such amendment or repeal shall only
require the affirmative vote of the majority of the shares present in person or
represented by proxy at such meeting and entitled to vote on such amendment or
repeal, voting together as a single class.
18
<PAGE> 22
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
-----------------------------------------
The Corporation reserves the right to amend or repeal this Second
Amended and Restated Certificate of Incorporation in the manner now or hereafter
prescribed by statute and this Second Amended and Restated Certificate of
Incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation. No amendment or repeal of this Second Amended and
Restated Certificate of Incorporation shall be made unless the same is first
approved by the Board of Directors pursuant to a resolution adopted by the Board
of Directors in accordance with Section 242 of the DGCL, and, except as
otherwise provided by law, thereafter approved by the stockholders. Whenever any
vote of the holders of voting stock is required to amend or repeal any provision
of this Second Amended and Restated Certificate of Incorporation, and in
addition to any other vote of the holders of voting stock that is required by
this Second Amended and Restated Certificate of Incorporation or by law, the
affirmative vote of a majority of the outstanding shares entitled to vote on
such amendment or repeal, and the affirmative vote of a majority of the
outstanding shares of each class entitled to vote thereon as a class, shall be
required to amend or repeal any provision of this Second Amended and Restated
Certificate of Incorporation; provided, however, that the affirmative vote of
not less than two-thirds of the outstanding shares entitled to vote on such
amendment or repeal, and the affirmative vote of not less than two-thirds of the
outstanding shares of each class entitled to vote thereon as a class, shall be
required to amend or repeal any of the provisions of Article V, Article VI,
Article VII or Article IX of this Second Amended and Restated Certificate of
Incorporation.
19
<PAGE> 23
I, John D. Curtin, of the Corporation, for the purpose of amending and
restating the Corporation's Amended and Restated Certificate of Incorporation
pursuant to the General Corporation Law of the State of Delaware, do make this
certificate, hereby declaring and certifying that this is my act and deed on
behalf of the Corporation this ___ day of June, 1996.
----------------------------
[INSERT NAME AND TITLE]
20
<PAGE> 24
Exhibit C
[PROPOSED]
AMENDED AND RESTATED
BY-LAWS
OF
AEARO CORPORATION
ARTICLE I
---------
Stockholders
------------
SECTION 1. ANNUAL MEETING. The annual meeting of stockholders shall be
held at the hour, date and place within or without the United States which is
fixed by the majority of the Board of Directors, the Chairman of the Board, if
one is elected, or the President, which time, date and place may subsequently be
changed at any time by vote of the Board of Directors. If no annual meeting has
been held for a period of thirteen months after the Corporation's last annual
meeting of stockholders, a special meeting in lieu thereof may be held, and such
special meeting shall have, for the purposes of these By-laws or otherwise, all
the force and effect of an annual meeting. Any and all references hereafter in
these By-laws to an annual meeting or annual meetings also shall be deemed to
refer to any special meeting(s) in lieu thereof.
SECTION 2. MATTERS TO BE CONSIDERED AT ANNUAL MEETINGS. At any annual
meeting of stockholders or any special meeting in lieu of annual meeting of
stockholders (the "Annual Meeting"), only such business shall be conducted, and
only such proposals shall be acted upon, as shall have been properly brought
before such Annual Meeting. To be considered as properly brought before an
Annual Meeting, business must be: (a) specified in the notice of meeting, (b)
otherwise properly brought before the meeting by, or at the direction of, the
Board of Directors, or (c) otherwise properly brought before the meeting by any
holder of record (both as of the time notice of such proposal is given by the
stockholder as set forth below and as of the record date for the Annual Meeting
in question) of any shares of capital stock of the Corporation entitled to vote
at such Annual Meeting who complies with the requirements set forth in this
Section 2.
In addition to any other applicable requirements, for business to be
properly brought before an Annual Meeting by a stockholder of record of any
shares of capital stock entitled to vote at such Annual Meeting, such
stockholder shall: (i) give timely notice as required by this Section 2 to the
Secretary of the Corporation and (ii) be present at such meeting, either in
<PAGE> 25
person or by a representative. For the first Annual Meeting following the
initial public offering of common stock of the Corporation, a stockholder's
notice shall be timely if delivered to, or mailed to and received by, the
Corporation at its principal executive office not later than the close of
business on the later of (x) the 75th day prior to the scheduled date of such
Annual Meeting or (y) the 15th day following the day on which public
announcement of the date of such Annual Meeting is first made by the
Corporation. For all subsequent Annual Meetings, a stockholder's notice shall be
timely if delivered to, or mailed to and received by, the Corporation at its
principal executive office not less than 75 days nor more than 120 days prior to
the anniversary date of the immediately preceding Annual Meeting (the
"Anniversary Date"); provided, however, that in the event the Annual Meeting is
scheduled to be held on a date more than 30 days before the Anniversary Date or
more than 60 days after the Anniversary Date, a stockholder's notice shall be
timely if delivered to, or mailed to and received by, the Corporation at its
principal executive office not later than the close of business on the later of
(1) the 75th day prior to the scheduled date of such Annual Meeting or (2) the
15th day following the day on which public announcement of the date of such
Annual Meeting is first made by the Corporation.
For purposes of these By-laws, "public announcement" shall mean: (a)
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service, (b) a report or other document filed
publicly with the Securities and Exchange Commission (including, without
limitation, a Form 8-K), or (c) a letter or report sent to stockholders of
record of the Corporation at the time of the mailing of such letter or report.
A stockholder's notice to the Secretary shall set forth as to each
matter proposed to be brought before an Annual Meeting: (i) a brief description
of the business the stockholder desires to bring before such Annual Meeting and
the reasons for conducting such business at such Annual Meeting, (ii) the name
and address, as they appear on the Corporation's stock transfer books, of the
stockholder proposing such business, (iii) the class and number of shares of the
Corporation's capital stock beneficially owned by the stockholder proposing such
business, (iv) the names and addresses of the beneficial owners, if any, of any
capital stock of the Corporation registered in such stockholder's name on such
books, and the class and number of shares of the Corporation's capital stock
beneficially owned by such beneficial owners, (v) the names and addresses of
other stockholders known by the stockholder proposing such business to support
such proposal, and the class and number of shares of the Corporation's capital
stock beneficially owned by such other stockholders, and (vi) any material
interest of the stockholder proposing to bring such business before such meeting
(or any other stockholders known to be supporting such proposal) in such
proposal.
If the Board of Directors or a designated committee thereof determines
that any stockholder proposal was not made in a timely fashion in accordance
with the provisions of this Section 2 or that the information provided in a
stockholder's notice does not satisfy the
2
<PAGE> 26
information requirements of this Section 2 in any material respect, such
proposal shall not be presented for action at the Annual Meeting in question. If
neither the Board of Directors nor such committee makes a determination as to
the validity of any stockholder proposal in the manner set forth above, the
presiding officer of the Annual Meeting shall determine whether the stockholder
proposal was made in accordance with the terms of this Section 2. If the
presiding officer determines that any stockholder proposal was not made in a
timely fashion in accordance with the provisions of this Section 2 or that the
information provided in a stockholder's notice does not satisfy the information
requirements of this Section 2 in any material respect, such proposal shall not
be presented for action at the Annual Meeting in question. If the Board of
Directors, a designated committee thereof or the presiding officer determines
that a stockholder proposal was made in accordance with the requirements of this
Section 2, the presiding officer shall so declare at the Annual Meeting and
ballots shall be provided for use at the meeting with respect to such proposal.
Notwithstanding the foregoing provisions of this By-Law, a stockholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder with respect to the matters set forth in this Section 2, and nothing
in this Section 2 shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation's proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
SECTION 3. SPECIAL MEETINGS. Except as otherwise required by law and
subject to the rights, if any, of the holders of any series of preferred stock,
special meetings of the stockholders of the Corporation may be called only by
the Board of Directors pursuant to a resolution approved by the affirmative vote
of a majority of the directors then in office.
SECTION 4. MATTERS TO BE CONSIDERED AT SPECIAL MEETINGS. Only those
matters set forth in the notice of the special meeting may be considered or
acted upon at a special meeting of stockholders of the Corporation, unless
otherwise provided by law.
SECTION 5. NOTICE OF MEETINGS; ADJOURNMENTS. A written notice of each
Annual Meeting stating the hour, date and place of such Annual Meeting shall be
given by the Secretary or an Assistant Secretary (or other person authorized by
these By-laws or by law) not less than 10 days nor more than 60 days before the
Annual Meeting, to each stockholder entitled to vote thereat and to each
stockholder who, by law or under the Second Amended and Restated Certificate of
Incorporation of the Corporation (as the same may hereafter be amended and/or
restated, the "Certificate") or under these By-laws, is entitled to such notice,
by delivering such notice to him or by mailing it, postage prepaid, addressed to
such stockholder at the address of such stockholder as it appears on the
Corporation's stock transfer books. Such notice shall be deemed to be delivered
when hand delivered to such address or deposited in the mail so addressed, with
postage prepaid.
3
<PAGE> 27
Notice of all special meetings of stockholders shall be given in the
same manner as provided for Annual Meetings, except that the written notice of
all special meetings shall state the purpose or purposes for which the meeting
has been called.
Notice of an Annual Meeting or special meeting of stockholders need not
be given to a stockholder if a written waiver of notice is signed before or
after such meeting by such stockholder or if such stockholder attends such
meeting, unless such attendance was for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting
was not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any Annual Meeting or special meeting of stockholders need
be specified in any written waiver of notice.
The Board of Directors may postpone and reschedule any previously
scheduled Annual Meeting or special meeting of stockholders and any record date
with respect thereto, regardless of whether any notice or public disclosure with
respect to any such meeting has been sent or made pursuant to Section 2 of this
Article I or Section 3 of Article II hereof or otherwise. In no event shall the
public announcement of an adjournment, postponement or rescheduling of any
previously scheduled meeting of stockholders commence a new time period for the
giving of a stockholder's notice under Section 2 of Article I and Section 3 of
Article II of these By-laws.
When any meeting is convened, the presiding officer may adjourn the
meeting if (a) no quorum is present for the transaction of business, (b) the
Board of Directors determines that adjournment is necessary or appropriate to
enable the stockholders to consider fully information which the Board of
Directors determines has not been made sufficiently or timely available to
stockholders, or (c) the Board of Directors determines that adjournment is
otherwise in the best interests of the Corporation. When any Annual Meeting or
special meeting of stockholders is adjourned to another hour, date or place,
notice need not be given of the adjourned meeting other than an announcement at
the meeting at which the adjournment is taken of the hour, date and place to
which the meeting is adjourned; provided, however, that if the adjournment is
for more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote thereat and each stockholder who, by
law or under the Certificate or these By-laws, is entitled to such notice.
SECTION 6. QUORUM. A majority of the shares entitled to vote, present
in person or represented by proxy, shall constitute a quorum at any meeting of
stockholders. If less than a quorum is present at a meeting, the holders of
voting stock representing a majority of the voting power present at the meeting
or the presiding officer may adjourn the meeting from time to time, and the
meeting may be held as adjourned without further notice, except as provided in
Section 5 of this Article I. At such adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted at the
meeting as
4
<PAGE> 28
originally noticed. The stockholders present at a duly constituted meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
SECTION 7. VOTING AND PROXIES. Stockholders shall have one vote for
each share of stock entitled to vote owned by them of record according to the
books of the Corporation, unless otherwise provided by law or by the
Certificate. Stockholders may vote either in person or by written proxy, but no
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period. Proxies shall be filed with the Secretary of
the meeting before being voted. Except as otherwise limited therein or as
otherwise provided by law, proxies shall entitle the persons authorized thereby
to vote at any adjournment of such meeting, but they shall not be valid after
final adjournment of such meeting. A proxy with respect to stock held in the
name of two or more persons shall be valid if executed by or on behalf of any
one of them unless at or prior to the exercise of the proxy the Corporation
receives a specific written notice to the contrary from any one of them. A proxy
purporting to be executed by or on behalf of a stockholder shall be deemed
valid, and the burden of proving invalidity shall rest on the challenger.
SECTION 8. ACTION AT MEETING. When a quorum is present, any matter
before any meeting of stockholders shall be decided by the affirmative vote of
the majority of shares present in person or represented by proxy at such meeting
and entitled to vote on such matter, except where a larger vote is required by
law, by the Certificate or by these By-laws. Any election by stockholders shall
be determined by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
directors, except where a larger vote is required by law, by the Certificate or
by these By-laws. The Corporation shall not directly or indirectly vote any
shares of its own stock; provided, however, that the Corporation may vote shares
which it holds in a fiduciary capacity to the extent permitted by law.
SECTION 9. STOCKHOLDER LISTS. The Secretary or an Assistant Secretary
(or the Corporation's transfer agent or other person authorized by these By-laws
or by law) shall prepare and make, at least 10 days before every Annual Meeting
or special meeting of stockholders, a complete list of the stockholders entitled
to vote at the meeting, arranged in alphabetical order, and showing the address
of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least 10 days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the hour, date and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
5
<PAGE> 29
SECTION 10. PRESIDING OFFICER. The Chairman of the Board, if one is
elected, or if not elected or in his or her absence, the President, shall
preside at all Annual Meetings or special meetings of stockholders and shall
have the power, among other things, to adjourn such meeting at any time and from
time to time, subject to Sections 5 and 6 of this Article I. The order of
business and all other matters of procedure at any meeting of the stockholders
shall be determined by the presiding officer.
SECTION 11. VOTING PROCEDURES AND INSPECTORS OF ELECTIONS. The
Corporation shall, in advance of any meeting of stockholders, appoint one or
more inspectors to act at the meeting and make a written report thereof. The
Corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to act at a
meeting of stockholders, the presiding officer shall appoint one or more
inspectors to act at the meeting. Any inspector may, but need not, be an
officer, employee or agent of the Corporation. Each inspector, before entering
upon the discharge of his or her duties, shall take and sign an oath faithfully
to execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall perform such duties as are
required by the General Corporation Law of the State of Delaware, as amended
from time to time (the "DGCL"), including the counting of all votes and ballots.
The inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors. The presiding
officer may review all determinations made by the inspectors, and in so doing
the presiding officer shall be entitled to exercise his or her sole judgment and
discretion and he or she shall not be bound by any determinations made by the
inspectors. All determinations by the inspectors and, if applicable, the
presiding officer, shall be subject to further review by any court of competent
jurisdiction.
ARTICLE II
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Directors
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SECTION 1. POWERS. The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors except as
otherwise provided by the Certificate or required by law.
SECTION 2. NUMBER AND TERMS. The number of directors of the Corporation
shall be fixed by resolution duly adopted from time to time by the Board of
Directors. The directors shall hold office in the manner provided in the
Certificate.
SECTION 3. DIRECTOR NOMINATIONS. Nominations of candidates for
election as directors of the Corporation at any Annual Meeting may be made only
(a) by, or at the direction of, a majority of the Board of Directors or (b) by
any holder of record (both as of the
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time notice of such nomination is given by the stockholder as set forth below
and as of the record date for the Annual Meeting in question) of any shares of
the capital stock of the Corporation entitled to vote at such Annual Meeting who
complies with the timing, informational and other requirements set forth in this
Section 3. Any stockholder who has complied with the timing, informational and
other requirements set forth in this Section 3 and who seeks to make such a
nomination, or his, her or its representative, must be present in person at the
Annual Meeting. Only persons nominated in accordance with the procedures set
forth in this Section 3 shall be eligible for election as directors at an Annual
Meeting.
Nominations, other than those made by, or at the direction of, the
Board of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the Corporation as set forth in this Section 3. For the first
Annual Meeting following the initial public offering of common stock of the
Corporation, a stockholder's notice shall be timely if delivered to, or mailed
to and received by, the Corporation at its principal executive office not later
than the close of business on the later of (i) the 75th day prior to the
scheduled date of such Annual Meeting or (ii) the 15th day following the day on
which public announcement of the date of such Annual Meeting is first made by
the Corporation. For all subsequent Annual Meetings, a stockholder's notice
shall be timely if delivered to, or mailed to and received by, the Corporation
at its principal executive office not less than 75 days nor more than 120 days
prior to the Anniversary Date; provided, however, that in the event the Annual
Meeting is scheduled to be held on a date more than 30 days before the
Anniversary Date or more than 60 days after the Anniversary Date, a
stockholder's notice shall be timely if delivered to, or mailed and received by,
the Corporation at its principal executive office not later than the close of
business on the later of (x) the 75th day prior to the scheduled date of such
Annual Meeting or (y) the 15th day following the day on which public
announcement of the date of such Annual Meeting is first made by the
Corporation.
A stockholder's notice to the Secretary shall set forth as to each
person whom the stockholder proposes to nominate for election or re-election as
a director: (1) the name, age, business address and residence address of such
person, (2) the principal occupation or employment of such person, (3) the class
and number of shares of the Corporation's capital stock which are beneficially
owned by such person on the date of such stockholder notice, and (4) the consent
of each nominee to serve as a director if elected. A stockholder's notice to the
Secretary shall further set forth as to the stockholder giving such notice: (a)
the name and address, as they appear on the Corporation's stock transfer books,
of such stockholder and of the beneficial owners (if any) of the Corporation's
capital stock registered in such stockholder's name and the name and address of
other stockholders known by such stockholder to be supporting such nominee(s),
(b) the class and number of shares of the Corporation's capital stock which are
held of record, beneficially owned or represented by proxy by such stockholder
and by any other stockholders known by such stockholder to be supporting such
nominee(s) on the record date for the Annual Meeting in question (if such date
shall then have been made publicly available) and on the date of such
stockholder's notice, and
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(c) a description of all arrangements or understandings between such stockholder
and each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by such
stockholder.
If the Board of Directors or a designated committee thereof determines
that any stockholder nomination was not made in accordance with the terms of
this Section 3 or that the information provided in a stockholder's notice does
not satisfy the informational requirements of this Section 3 in any material
respect, then such nomination shall not be considered at the Annual Meeting in
question. If neither the Board of Directors nor such committee makes a
determination as to whether a nomination was made in accordance with the
provisions of this Section 3, the presiding officer of the Annual Meeting shall
determine whether a nomination was made in accordance with such provisions. If
the presiding officer determines that any stockholder nomination was not made in
accordance with the terms of this Section 3 or that the information provided in
a stockholder's notice does not satisfy the informational requirements of this
Section 3 in any material respect, then such nomination shall not be considered
at the Annual Meeting in question. If the Board of Directors, a designated
committee thereof or the presiding officer determines that a nomination was made
in accordance with the terms of this Section 3, the presiding officer shall so
declare at the Annual Meeting and ballots shall be provided for use at the
meeting with respect to such nominee.
Notwithstanding anything to the contrary in the second paragraph of
this Section 3, in the event that the number of directors to be elected to the
Board of Directors of the Corporation is increased and there is no public
announcement by the Corporation naming all of the nominees for director or
specifying the size of the increased Board of Directors at least 75 days prior
to the Anniversary Date, a stockholder's notice required by this Section 3 shall
also be considered timely, but only with respect to nominees for any new
positions created by such increase, if such notice shall be delivered to, or
mailed to and received by, the Corporation at its principal executive office not
later than the close of business on the 15th day following the day on which such
public announcement is first made by the Corporation.
No person shall be elected by the stockholders as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section. Election of directors at an Annual Meeting need not be by written
ballot, unless otherwise provided by the Board of Directors or presiding officer
at such Annual Meeting. If written ballots are to be used, ballots bearing the
names of all the persons who have been nominated for election as directors at
the Annual Meeting in accordance with the procedures set forth in this Section
shall be provided for use at the Annual Meeting.
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SECTION 4. QUALIFICATION. No director need be a stockholder of the
Corporation.
SECTION 5. VACANCIES. Subject to the rights, if any, of the holders of
any series of preferred stock to elect directors and to fill vacancies in the
Board of Directors relating thereto, any and all vacancies in the Board of
Directors, however occurring, including, without limitation, by reason of an
increase in size of the Board of Directors, or the death, resignation,
disqualification or removal of a director, shall be filled solely by the
affirmative vote of a majority of the remaining directors then in office, even
if less than a quorum of the Board of Directors. Any director appointed in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or the vacancy occurred and until such director's successor shall have
been duly elected and qualified or until his or her earlier resignation or
removal. Subject to the rights, if any, of the holders of any series of
preferred stock to elect directors, when the number of directors is increased or
decreased, the Board of Directors shall determine the class or classes to which
the increased or decreased number of directors shall be apportioned; provided,
however, that no decrease in the number of directors shall shorten the term of
any incumbent director. In the event of a vacancy in the Board of Directors, the
remaining directors, except as otherwise provided by law, may exercise the
powers of the full Board of Directors until the vacancy is filled.
SECTION 6. REMOVAL. Directors may be removed from office in the manner
provided in the Certificate.
SECTION 7. RESIGNATION. A director may resign at any time by giving
written notice to the Chairman of the Board, if one is elected, the President or
the Secretary. A resignation shall be effective upon receipt, unless the
resignation otherwise provides.
SECTION 8. REGULAR MEETINGS. The regular annual meeting of the Board of
Directors shall be held, without notice other than this Section 8, on the same
date and at the same place as the Annual Meeting following the close of such
meeting of stockholders. Other regular meetings of the Board of Directors may be
held at such hour, date and place as the Board of Directors may by resolution
from time to time determine without notice other than such resolution.
SECTION 9. Special Meetings. Special meetings of the Board of Directors
may be called, orally or in writing, by or at the request of a majority of the
directors, the Chairman of the Board, if one is elected, or the President. The
person calling any such special meeting of the Board of Directors may fix the
hour, date and place thereof.
SECTION 10. NOTICE OF MEETINGS. Notice of the hour, date and place of
all special meetings of the Board of Directors shall be given to each director
by the Secretary or an Assistant Secretary, or in case of the death, absence,
incapacity or refusal of such persons, by
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the Chairman of the Board, if one is elected, or the President or such other
officer designated by the Chairman of the Board, if one is elected, or the
President. Notice of any special meeting of the Board of Directors shall be
given to each director in person, by telephone, or by facsimile, telex,
telecopy, telegram, or other written form of electronic communication, sent to
his or her business or home address, at least 24 hours in advance of the
meeting, or by written notice mailed to his or her business or home address, at
least 48 hours in advance of the meeting. Such notice shall be deemed to be
delivered when hand delivered to such address, read to such director by
telephone, deposited in the mail so addressed, with postage thereon prepaid if
mailed, dispatched or transmitted if faxed, telexed or telecopied, or when
delivered to the telegraph company if sent by telegram.
When any Board of Directors meeting, either regular or special, is
adjourned for 30 days or more, notice of the adjourned meeting shall be given as
in the case of an original meeting. It shall not be necessary to give any notice
of the hour, date or place of any meeting adjourned for less than 30 days or of
the business to be transacted thereat, other than an announcement at the meeting
at which such adjournment is taken of the hour, date and place to which the
meeting is adjourned.
A written waiver of notice signed before or after a meeting by a
director and filed with the records of the meeting shall be deemed to be
equivalent to notice of the meeting. The attendance of a director at a meeting
shall constitute a waiver of notice of such meeting, except where a director
attends a meeting for the express purpose of objecting at the beginning of the
meeting to the transaction of any business because such meeting is not lawfully
called or convened. Except as otherwise required by law, by the Certificate or
by these By-laws, neither the business to be transacted at, nor the purpose of,
any meeting of the Board of Directors need be specified in the notice or waiver
of notice of such meeting.
SECTION 11. QUORUM. At any meeting of the Board of Directors, a
majority of the directors then in office shall constitute a quorum for the
transaction of business, but if less than a quorum is present at a meeting, a
majority of the directors present may adjourn the meeting from time to time, and
the meeting may be held as adjourned without further notice, except as provided
in Section 10 of this Article II. Any business which might have been transacted
at the meeting as originally noticed may be transacted at such adjourned meeting
at which a quorum is present.
SECTION 12. ACTION AT MEETING. At any meeting of the Board of Directors
at which a quorum is present, a majority of the directors present may take any
action on behalf of the Board of Directors, unless otherwise required by law, by
the Certificate or by these By-laws.
SECTION 13. ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting if
all members of the Board of Directors consent thereto in writing. Such written
consent shall be filed with the
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