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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-Q/A
( X ) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For Quarterly Period Ended September 30, 1998
Commission File Number 1-2964
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TRANSAMERICA CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 94-0932790
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
600 Montgomery Street
San Francisco, California 94111
(Address of principal executive offices)
(Zip Code)
(4l5) 983-4000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
Number of shares of Common Stock, $1 par value, outstanding as of
close of business on January 19, 1999: 124,533,166 shares.
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Transamerica Corporation hereby amends, as set forth below, its Quarterly Report
on Form 10-Q for the quarterly period ended September 30, 1998 filed on November
13, 1998:
Item 5. Other Information.
In December 1998, the Board of Directors approved an amendment to the advance
notice provisions of the Company's By-Laws. Under the amended provisions, a
stockholder who wishes to present business or a director nomination at an annual
meeting of stockholders must provide notice of its intention to do so, and
certain other information, not less than seventy days nor more than ninety days
prior to the first anniversary of the preceding year's annual meeting. For the
annual meeting to be held on April 22, 1999, therefore, notice of such
stockholder business must be presented not later than February 12, 1999 to be
considered timely under the By-Laws.
Also in December 1998, the Company filed its Restated Certificate of
Incorporation with the Delaware Secretary of State.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits.
3(i) Restated Certificate of Incorporation of Transamerica Corporation, as filed
with the Secretary of State of the State of Delaware on December 21, 1998.
3(ii) By-Laws of Transamerica Corporation, as amended on December 17, 1998.
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Signatures
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 thereunto duly authorized.
TRANSAMERICA CORPORATION
(Registrant)
Burton E. Broome
Vice President and Controller
(Chief Accounting Officer)
Date: January 21, 1999
Exhibit 3(i)
RESTATED CERTIFICATE OF INCORPORATION
OF
TRANSAMERICA CORPORATION
The present name of the corporation is TRANSAMERICA CORPORATION. The
corporation was incorporated under the name TRANSAMERICA CORPORATION by filing
of its original certificate of incorporation with the Secretary of State of the
State of Delaware on October 11, 1928. This Restated Certificate of
Incorporation of the corporation restates and integrates and does not further
amend the provisions of the corporation's Certificate of Incorporation as
heretofore amended or supplemented, and there is no discrepancy between those
provisions and the provisions of this Restated Certificate of Incorporation.
This Restated Certificate of Incorporation was duly adopted in accordance with
Section 245 of the General Corporation Law of the State of Delaware and hereby
restates and integrates the provisions of the corporation's Certificate of
Incorporation to read in its entirety as follows:
ARTICLE I
The name of this corporation is TRANSAMERICA CORPORATION.
ARTICLE II
Its principal office in the State of Delaware is located at 1209 Orange
Street in the City of Wilmington, County of New Castle. The name and address of
its resident agent is the Corporation Trust Company, 1209 Orange Street,
Wilmington, Delaware.
ARTICLE III
The nature of the business of this corporation and the objects or
purposes proposed to be transacted, promoted or carried on by it are as follows,
namely:
1. To subscribe for, purchase, acquire, invest in, hold for investment
or otherwise, own, trade and generally deal in, and to use, sell, assign,
transfer, pledge, mortgage or otherwise dispose of, the stocks, bonds, and other
evidences of indebtedness of any corporation, domestic or foreign, public,
quasi-public or private, and to possess and exercise in respect thereof all
rights, powers and privileges of individual owners or holders of such stock,
including the right to vote thereon and to execute proxies therefor, and also to
the extent now or hereafter authorized or permitted by the laws of the State of
Delaware to purchase, hold, sell, exchange or transfer, or otherwise deal in,
shares of its own capital stock, bonds or other obligations from time to time to
such an extent and in such manner and upon such terms as its board of directors
shall determine and as the laws of Delaware may permit; provided that this
corporation shall not use any of its funds or property for the purchase of
shares of its own capital stock when such use would cause an impairment of the
capital of this corporation, and provided further that shares of its own capital
stock belonging to this corporation shall not be voted directly or indirectly.
2. To do any and all acts and things for the protection, improvement
and enhancement in value of such securities or of any thereof, or designed to
accomplish any such purpose.
3. To buy, hold, own, maintain, sell, convey, generally deal in, lease,
mortgage, exchange and otherwise trade in and dispose of real property of all
kinds or any interest or rights therein, within and without the State of
Delaware and in any and all of the States, Districts, Territories or
dependencies of the United States and in any and all foreign countries in
accordance with the law thereof; to carry on the business of developing and
improving real property; to build, construct, operate, maintain, lease and sell
dwelling houses, apartment houses, business blocks and buildings of all kinds
and descriptions; to improve, enhance in value or alter all kinds of buildings
and other real estate, both improved and unimproved; to maintain a general real
estate agency, including the right to manage estates and to act as agent, broker
or attorney-in-fact for any person or corporation; to supervise, manage and
protect the real property of the corporation and any interest or claim held by
it in the same; to have the same insured against fire and other casualties; to
exercise all rights and powers, to perform all transactions, and in every
respect to deal with real property to the same extent that is permitted under
the laws of the State of Delaware to any commercial corporation.
4. To acquire by purchase or otherwise, own, sell, lease, let, convey,
mortgage, pledge, exchange, invest in, trade in and generally deal in personal
property of every kind, character and description without limitation in any and
all parts of the world in accordance with law to the same extent as is permitted
to any commercial corporation by the laws of the State of Delaware.
5. To acquire, own, hold and dispose of grants, concessions and
franchises or interests therein; to cause to be formed, merged or reorganized,
and to promote and aid in any way permitted by law the formation, merger or
reorganization of any business, concern, firm, association or corporation,
domestic or foreign, and to do all acts and things permitted by law tending to
aid in establishing the business and promoting the success of any such business,
concern, firm, association or corporation; to take over properties, manage the
affairs and conduct the business of such concerns, firms, associations and
corporations, and in the course of which business to dispose of, deal in,
realize upon or otherwise turn to account, and to hold, possess and improve the
property thereof, real or personal, of every kind and description, and to assume
the liabilities of any such person, firm, association or corporation, and to
take in any legal manner the whole or any part of the business or acquire and to
pledge, mortgage, sell or otherwise dispose of the same.
6. To promote and assist, financially or otherwise, corporations,
domestic or foreign, public, quasi-public or private, firms, syndicates,
associations, individuals and otherwise, and to the extent permitted by law, to
give any guarantee in connection therewith for the payment of money or for the
performance of any other undertaking or obligation; to institute, enter upon,
assist, promote or participate in commercial, mercantile and industrial works,
contracts, ventures, enterprises and operations without limit to the extent
permitted by law, and to aid in procuring necessary means, facilities and
capital for the same to such extent as may be permitted by law.
7. To act as financial and business agent, general or special, for
domestic and foreign corporations, public, quasi-public and private;
individuals, partnerships, associations, firms and syndicates, and as such to
develop, improve and extend the property, trade and business thereof, and to aid
any lawful enterprise and in connection with acting as such representative or
agent or broker for any principal to give any other aid or assistance to such
extent as may be permitted by law.
8. To guarantee the payment of dividends upon stock, or interest upon
bonds, notes and other evidences of indebtedness or obligation, or the
performance of the contracts or other obligations of any corporation, domestic
or foreign, public, quasi-public or private, co-partnership, association,
syndicate, firm or individual to such extent as may be permitted by law, and to
such extent to enter into, make, perform and carry out contracts of every kind
and for any lawful purpose with any person, firm, association, corporation,
syndicate or others.
9. To borrow money with or without pledge of or mortgage upon any or
all of its property, real or personal, as security, and from time to time to
make, execute, endorse and issue bonds, debentures, promissory notes, bills of
exchange and other obligations of the company for moneys borrowed or in payment
for property acquired or for any other objects and purposes of the company or
its business, and to secure the payment of any such obligations by mortgage,
pledge, deed, deed of trust, indenture, agreement or other instrument of trust,
or by other lien upon, assignment of or agreement in respect to all or any part
of the property, rights, privileges or franchises of this corporation, wherever
situated, whether now owned or hereafter to be acquired.
10. To apply for, obtain, register, purchase, lease or otherwise
acquire, hold, own, use, operate, introduce, develop or control, sell, assign,
or otherwise dispose of, take or grant licenses, patents, inventions, patent
rights, copyrights, privileges, improvements, processes, trade marks, trade
names, formulae, labels, designs, brands and blends and any interest therein,
and similar rights of any and all kinds and whether granted, registered or
established by or under the laws of the United States or of any other State,
Country or sovereign, and to use, improve, exercise, develop, grant licenses in
respect of, sell, trade in or otherwise turn to account the same; to acquire
water and water rights within and without the State of Delaware for all
purposes, to promote irrigation, construct and maintain dams, levees, weirs,
canals, ditches, and do all other acts necessary to secure, impound and use
water for irrigation, drainage and other purposes so far as can be done in
accordance with law.
11. To act as insurance agent for any fire, accident, life, casualty or
other insurance company, and generally to conduct and maintain a general
insurance brokerage and commission business, and generally deal in, place and
contract, either on commission or otherwise, insurance of every kind or
character; to become a member of any brokers or other insurance board or
organization, convenient or proper for the carrying on of any such business.
12. To act as trustee under deeds of trust securing obligations for the
payment of money, or otherwise act as trustee to such extent as may be permitted
by the laws of Delaware or by the laws of any state in which this company may do
business.
13. To organize or cause to be organized under the laws of the State of
Delaware, or of any other state, district, territory, province or government, a
corporation or corporations for the purpose of accomplishing any or all of the
objects for which this corporation is organized, and to dissolve, wind up,
liquidate, merge or consolidate any such corporation or corporations or to cause
the same to be dissolved, wound up, liquidated, merged or consolidated.
14. To carry on any other lawful business whatsoever which may seem to
the corporation capable of being carried on in connection with the foregoing, or
calculated directly or indirectly to promote the interest of the corporation or
to enhance the value of its properties; and to have, enjoy and exercise all the
rights, powers and privileges which are now or which may hereafter be conferred
upon corporations organized under the same statutes as this corporation.
15. To do a general financial, industrial, mining, manufacturing,
shipping, importing and exporting, brokerage, merchandising, farming business,
and to engage in any other business or transaction permitted by the laws of
Delaware to any commercial corporation.
16. In the acquisition of any property, real or personal, hereinbefore
mentioned, or of any shares of stock, debentures, bonds or other evidences of
indebtedness, or any other rights or privileges of any kind or character, this
corporation may issue in payment thereof, in whole or in part, shares of its own
capital stock, or otherwise pay for the same in shares of its own capital stock
or in the bonds or other evidences of indebtedness issued by this corporation,
and the board of directors of this corporation shall have the right to determine
the value to be placed on any such shares, bonds or other indebtedness of this
corporation so issued or exchanged.
17. To conduct its business (including the holding, purchasing,
mortgaging and conveying of real and personal property) in the State of
Delaware, other States, the District of Columbia, the territories, colonies and
possessions of the United States and in foreign countries; and to maintain such
offices either within or without the State of Delaware as may be convenient;
provided, however, that nothing herein contained shall be deemed to authorize
this corporation to construct, hold, maintain or operate within the State of
Delaware railroads, railways, telegraph or telephone lines, or to carry on
within said State any public utility business.
The foregoing clauses shall be construed both as objects and powers and
the foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the powers of the corporation; and it is the intention
that the purposes, objects and powers specified in each of the paragraphs of
this Article Third of this Certificate of Incorporation shall, except as
otherwise expressly provided, in no wise be limited or restricted by reference
to or inference under the terms of any other clause or paragraph of this Article
or any other Article of this Certificate of Incorporation, but that each of the
purposes, objects and powers specified in this Article and each of the Articles
or paragraphs of this Certificate of Incorporation shall be regarded as
independent purposes, objects and powers.
ARTICLE IV
The total number of shares of all classes of capital stock which this
corporation shall have authority to issue is three hundred six million two
hundred thousand (306,200,000) shares, of which one million two hundred thousand
(1,200,000) shares shall be preferred stock, of the par value of one hundred
dollars ($100) per share; five million (5,000,000) shares shall be preference
stock, without par value; and three hundred million (300,000,000) shares shall
be common stock, of the par value of one dollar ($1) per share.
Except as otherwise expressly provided by this Certificate of
Incorporation or the resolution or resolutions of the board of directors
providing for the issue of a series of preferred stock or preference stock,
stock of any class or classes may be authorized, and the amount of authorized
stock of any class or classes may be increased or decreased, by the affirmative
vote of the holders of a majority of the stock of this corporation at the time
entitled to vote.
At every meeting of the stockholders of this corporation, each holder
of common stock of this corporation shall be entitled to one vote for each full
share of common stock, and to one-half of one vote for each one-half interest in
a share of common stock, held by such holder of common stock.
1. PREFERRED STOCK
The preferred stock may be issued in one or more series with such
redemption provisions, dividend rights, rights on dissolution or distribution of
assets, conversion or exchange rights, designations, voting powers, preferences
and relative, participating, optional or other rights, if any, and
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions providing for the issue of such
stock, or series thereof, adopted, at any time and from time to time, by the
board of directors of this corporation.
2. PREFERENCE STOCK
The preference stock may be issued in one or more series with such
redemption provisions, dividend rights, rights on dissolution or distribution of
assets, conversion or exchange rights, designations, voting powers, preferences
and relative, participating, optional or other rights, if any, and
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in this Certificate of Incorporation or in the resolution or
resolutions providing for the issue of such stock, or series thereof, adopted,
at any time and from time to time, by the board of directors of this
corporation.
3. PREFERRED STOCK AND PREFERENCE STOCK ON A PARITY
The preferred stock and the preference stock shall rank on a parity and
the rights of the holders of each such class of stock as to the payment of
dividends and as to distributions in the event of a voluntary or an involuntary
liquidation, dissolution or winding up of this corporation, shall rank on an
equality with the rights of the holders of the other such class of stock.
Nothing herein contained shall preclude the board of directors of this
corporation from fixing dividend rates or liquidating preferences which are
different in amount for any series of either class of such stock from the
dividend rates or liquidating preferences applicable to any series of the other
class of such stock, or from fixing different dividend payment dates for any
series of either of such classes of stock.
4. SERIES OF PREFERENCE STOCK
Except as otherwise expressly provided by the Delaware law or this
Certificate of Incorporation, there shall be no limitation or restriction on
variation between any of the different series of preference stock. All
preference stock of all series shall share pro rata in the payment of all
dividends on the preference stock at the various rates fixed for each series and
in any amounts payable or distributable upon liquidation, dissolution or winding
up of this corporation to the extent of the respective liquidation preferences
fixed for each series; and, except for variations between the different series
of preference stock, as herein expressly provided or permitted, all series of
preference stock shall rank on a parity. All preference stock of any one series
shall be entitled to the same dividend rate and shall have the same voting,
redemption, conversion, liquidation and other rights, preferences, privileges,
limitations and restrictions.
a. Dividend rights. The holders of the preference stock of all series
shall be entitled to receive, when and as declared by the board of directors,
dividends at the rate or rates fixed for the respective series, and no more,
without priority of one series over any other series, out of funds of this
corporation legally available therefor, payable in cash on such dates as may be
fixed by the board of directors as to any series of preference stock (the
periods between any such dates, commencing on such dates, being herein
designated as "dividend periods"). Dividends on the preference stock of any
series shall be cumulative from and after such date as may be fixed by the board
of directors prior to the issuance thereof. Such dividends on the preference
stock of all series shall be declared and paid or set apart for payment before
any dividend shall be declared or paid or set apart for payment on, or any other
distribution made in respect of, the common stock, and shall be cumulative as
above provided so that if, in any dividend period, dividends at the respective
rates fixed for each such series shall not have been declared and paid or set
apart for payment on all outstanding shares of each such series for such
dividend period and all preceding dividend periods from and after the date from
which dividends on each such series shall be cumulative, then the aggregate
deficiency shall be fully paid or declared and set apart for payment, but
without interest, before any dividends shall be declared or paid or set apart
for payment on, or any other distribution made in respect of the common stock.
After full cumulative dividends on the outstanding preferred stock and
preference stock of all series shall have been paid or set apart for payment for
all previous dividend periods and for the then current dividend period, and
after sufficient funds shall have been set aside to meet all matured
obligations, if any, of this corporation with respect to all sinking funds,
retirement funds or purchase funds for any series of preferred stock or
preference stock, then and not otherwise, as long as any preferred stock or
preference stock of any series shall remain outstanding, dividends may be
declared and paid or set apart for payment on the common stock in the discretion
of the board of directors out of any funds of this corporation thereafter
remaining and legally available therefor.
Accumulations of dividends, whether declared or passed, shall not bear
interest.
b. Voting rights. Except as otherwise expressly provided by Delaware
law or this Certificate of Incorporation or the resolution or resolutions of the
board of directors providing for the issue of a series of preference stock, each
holder of any series of preference stock at the time entitled to vote, shall be
entitled to one vote for each share held by such holder.
Whenever and as often as dividends payable on the preference stock at
the time outstanding shall be accumulated and unpaid in an amount equivalent to
or exceeding six quarterly dividends (whether or not declared and whether
consecutive or not), the holders of record of the preference stock of all series
shall thereafter have the right, as a single class, to elect two directors, and,
subject to the terms of any outstanding series of preferred stock or preference
stock, the holders of record of the common stock, as a single class, shall have
the right to elect the remaining authorized number of directors.
Upon the happening of the six (6) dividend defaults hereinabove set
forth, a special meeting of stockholders of this corporation then entitled to
vote shall be called by the Chairman of the Board or the President or the
Secretary of this corporation, if requested in writing by the holders of records
of not less than ten (10) per cent of the preference stock then outstanding. At
such special meeting, or, if no such special meeting shall have been called,
then at the next annual meeting of stockholders, the stockholders of this
corporation then entitled to vote shall elect, voting as above provided, an
entirely new board of directors, and the term of office of the directors in
office at the time of such election shall expire upon the election of their
successors at such meeting; provided, however, that nothing herein contained
shall be construed to be a bar to the reelection of any director at such
meeting. At all meetings of stockholders at which holders of preference stock
shall be entitled to vote for directors as a single class, the holders of a
majority of the outstanding shares of each class or series of capital stock of
this corporation having the right to vote as a single class shall be necessary
to constitute a quorum, whether present in person or by proxy, for the election
by that class or series of its designated directors. In order to validate an
election of directors by stockholders voting as a class, such directors shall be
elected by the vote of at least a plurality of shares held by such stockholders
present or represented at the meeting. At any such meeting, the election of
directors by stockholders voting as a class shall be valid notwithstanding that
a quorum of other stockholders voting as one or more classes may not be present
or represented at such meeting, and if any stockholders voting as a class shall
elect directors, the directors so elected shall be deemed to be directors of
this corporation unless and until the other stockholders entitled to vote as one
or more classes shall elect their directors.
While class voting is in effect with respect to the preference stock,
any director elected by holders of preference stock voting as a class may be
removed at any annual or special meeting, by vote of a majority of the
stockholders voting as a class who elected such director, for any cause deemed
sufficient by such stockholders present at such meeting. In case any vacancy
shall occur among the directors elected by such stockholders voting as a class,
such vacancy may be filled by the remaining director so elected, or his
successor then in office, and the director so elected to fill such vacancy shall
serve until the next meeting of stockholders for the election of directors.
Such voting rights of the holders of preference stock as a single
class, once effective, shall continue only until all arrears in dividends
(whether or not declared) on the preference stock shall have been paid or
declared and set apart for payment at which time the right of the preference
stock to vote as a single class for the election of directors, as hereinabove
set forth, shall terminate. Upon such termination, a special meeting of the
stockholders of this corporation then entitled to vote may be called by the
Chairman of the Board or the President, and shall be called by the Chairman of
the Board or the President or the Secretary of this corporation if requested in
writing by the holders of record of not less than one (1) percent of the common
stock then outstanding, and at such special meeting, or if no such special
meeting shall have been called then at the next annual meeting of the
stockholders, the stockholders of this corporation then entitled to vote shall
elect an entirely new board of directors and the term of office of the directors
in office at the time of such election shall expire upon the election of their
successors at such meeting; provided, however, that nothing herein contained
shall be construed to be a bar to the re-election of any such director at such
meeting.
The consent of the holders of at least two-thirds of the number of
shares of preference stock at the time outstanding, given in person or by proxy,
either in writing or at a meeting of stockholders at which the holders of the
preference stock shall vote separately as a class, shall be necessary for
effecting or validating:
(i) any change in the Certificate of Incorporation or By-Laws
of this corporation which would materially and adversely alter or
change the preferences, special rights or powers given to the holders
of the preference stock, provided, that if one or more but not all
series of preference stock at the time outstanding are so affected,
only the consent of the holders of at least two-thirds of each series
so affected, voting separately as a class, shall be required; or
(ii) the issuance of any shares of any other class of stock of
this corporation ranking prior to the preference stock.
The term "ranking prior to the preference stock" shall mean and include
all shares of stock of this corporation in respect of which the rights of the
holders thereof as to the payment of dividends or as to distributions in the
event of a voluntary or an involuntary liquidation, dissolution or winding up of
this corporation, are given preference over the rights of the holders of the
preference stock.
c. Redemption provisions. Every series of preference stock shall be
subject to redemption at the election of this corporation and by operation of
the respective sinking funds, retirement funds or purchase funds of any series
thereof, in whole or in part, at any time or from time to time, at such price or
prices and upon such other terms and conditions as stated in this Certificate of
Incorporation, or at such price or prices and upon such other terms and
conditions, not inconsistent with the express provisions of this Certificate of
Incorporation, as shall be fixed in the resolution or resolutions of the board
of directors providing for the issue of such series of preference stock.
The following additional conditions shall apply to the redemption of
all series of preference stock:
Notice of any proposed redemption shall be given by this corporation by
publication (not less than 30 days nor more than 90 days prior to the redemption
date) at least once in a newspaper printed in the English language and of
general circulation in the City and County of San Francisco, State of California
(upon any secular day of the week), stating such election on the part of this
corporation and that on the redemption date there will become due and payable
upon each of the shares to be redeemed, at the place or places specified in such
notice, the applicable redemption price therein specified. A similar notice
shall be mailed by this corporation, postage prepaid, not less than 30 days nor
more than 90 days prior to the date fixed for redemption, to each holder of
record of such shares to be redeemed at his address as shown on the records of
this corporation. The failure to mail such notice or any defect in such mailing
shall not invalidate the redemption of such shares.
If less than all the shares of preference stock of any series are to be
redeemed, redemption shall be made by lot or pro rata, in any manner determined
by the board of directors to be fair and proper, and the notice of redemption
shall specify the shares to be redeemed. From and after the date fixed for
redemption, unless default shall be made by this corporation in payment of the
redemption price, all dividends on the shares of preference stock called for
redemption shall cease to accrue and all rights of the holders of such shares as
shareholders of this corporation shall cease and terminate, except the right to
receive the applicable redemption price, without interest, upon surrender of the
certificates representing the shares so called for redemption, duly endorsed for
transfer, if required.
If this corporation, on or prior to the date fixed for the redemption
of any of the preference stock, shall deposit with a bank or trust company doing
business in San Francisco, California, as a trust fund for the benefit of the
respective holders of such shares to be redeemed, sums sufficient to redeem such
shares called for redemption, with irrevocable instructions and authority to
such depositary to publish, in the name of this corporation, the notice of
redemption thereof (if not theretofore published) and to pay on or after the
date fixed for such redemption to the respective holders of such shares the
redemption price thereof upon surrender of the certificates representing the
shares so called for redemption, then from and after the time of such deposit
(although prior to the date fixed for redemption) such shares so called for
redemption shall be deemed to be redeemed and dividends thereon shall cease to
accrue after said date fixed for redemption. Said deposit shall be deemed to
constitute full payment of such shares to the respective holders thereof and
such shares shall no longer be deemed to be outstanding and the holders thereof
shall cease to be shareholders with respect to such shares and shall have no
rights with respect thereto, except only the right to receive from such bank or
trust company payment of the redemption price of such shares, without interest,
upon surrender of the certificates representing the shares so called for
redemption and the right to exercise any existing conversion rights in
accordance with the express terms of such shares. All funds so deposited and not
used for redemption because of any such conversions shall be returned to this
corporation.
All preference stock redeemed or otherwise retired shall immediately on
the redemption or retirement thereof be cancelled and restored to the status of
authorized but unissued preference stock.
d. Liquidation rights. In the event of any liquidation, dissolution or
winding up of this corporation, voluntary or involuntary, the holders of all
shares of preference stock of all series shall be entitled to be paid in full
out of the assets of this corporation, without priority between series, the
respective voluntary or involuntary liquidation price fixed for such series, and
no more, plus all accrued and unpaid dividends thereon to the date that payment
is made available to the holders of such shares, prior to any payment or
distribution of any assets of this corporation to the holders of the common
stock. If, upon any voluntary or involuntary liquidation, dissolution or winding
up of this corporation, the assets of this corporation shall be insufficient to
permit the payment in full of the amounts payable to the holders of the
preferred stock and the preference stock of all series, then, to the exclusion
of the holders of the common stock, the holders of the preferred stock and
preference stock of all series shall share ratably in proportion to the amounts
which they are respectively entitled to receive in the distribution of the
entire amount of the assets of this corporation according to the number of
shares of all series of the preferred stock and preference stock which they
respectively hold.
After payment to the holders of the preferred stock and preference
stock of all series of the full preferential amounts to which they are
respectively entitled, as aforesaid, the holders of the common stock shall be
entitled to receive as a class, pro rata, all remaining assets of this
corporation available for distribution to its stockholders.
Consolidation or merger of this corporation with or into another
corporation or corporations, or a sale, whether for cash, shares of stock,
securities or properties, of all or substantially all of the assets of this
corporation, shall not be deemed or construed to be a liquidation, dissolution
or winding up of this corporation within the meaning of this paragraph d.
5. NO PREEMPTIVE RIGHTS
No stockholder of this corporation shall have any preemptive or
preferential right of subscription to any shares of any stock of this
corporation, or to any obligations convertible into stock of this corporation
issued or sold, nor any right of subscription to any thereof other than such, if
any, as the board of directors of this corporation in its discretion from time
to time may determine, and the board of directors may issue stock of this
corporation, or obligations convertible into stock, without offering such issue
of stock, either in whole or in part, to the stockholders of this corporation.
The acceptance of stock in this corporation shall be a waiver of any such
preemptive or preferential right which in the absence of this provision might
otherwise be asserted by stockholders of this corporation or any of them.
6. EFFECT OF SHARE REGISTRATION
This corporation shall be entitled to treat the person in whose name
any share is registered as the owner thereof, for all purposes, and shall not be
bound to recognize any equitable or other claim to, or interest in, such share
on the part of any other person, whether or not this corporation shall have
notice thereof, save as expressly provided by the laws of the State of Delaware.
ARTICLE V
The number of shares with which this corporation will commence business
is sixty (60) shares of the par value of twenty-five ($25.00) dollars each.
ARTICLE VI
[DELETED]
ARTICLE VII
The corporation shall have perpetual existence.
ARTICLE VIII
The private property of the stockholders shall not be subject to the
payment of the debts of the corporation, but shall be exempt from corporate
liability.
ARTICLE IX
The number of directors of this corporation shall be fixed and may be
altered from time to time as may be provided in the By-Laws of this corporation.
The directors shall be divided into three classes, designated Class I, Class II
and Class III. Each class shall consist, as nearly as may be possible, of
one-third of the total number of directors constituting the entire board of
directors. At the 1986 annual meeting of stockholders, Class I directors shall
be elected for a one-year term, Class II directors for a two-year term and Class
III directors for a three-year term. At each succeeding annual meeting of
stockholders beginning in 1987, successors to the class of directors whose term
expires at that annual meeting shall be for a three-year term. If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as nearly equal
as possible, and any additional director of any class elected to fill a vacancy
resulting from an increase in such class shall hold office for a term that shall
coincide with the remaining term of that class, but in no case will a decrease
in the number of directors shorten the term of any incumbent director. A
director shall hold office until the annual meeting for the year in which his
term expires and until his or her successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office. Any vacancy in the board of directors that results from an
increase in the number of directors may be filled by a majority of the board of
directors then in office, provided that a quorum is present, and any other
vacancy occurring in the board of directors may be filled by a majority of the
directors then in office, even if less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy not resulting from an increase
in the number of directors shall have the same remaining term as that of such
director's predecessor.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of preferred stock or preference stock issued by this
corporation shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the election, term of
office, filling of vacancies and other features of such directorships shall be
governed by the terms of this Certificate of Incorporation applicable thereto,
and such directors so elected shall not be divided into classes pursuant to this
Article IX unless expressly provided by such terms. The officers of this
corporation need not be stockholders therein.
Notwithstanding any other provision of this Certificate of
Incorporation, the affirmative vote of holders of eighty percent (80%) of the
voting power of the shares entitled to vote at an election of directors shall be
required to amend, alter, change, repeal or adopt any provision as part of this
Certificate of Incorporation, inconsistent with the purpose of intent of this
Article IX.
ARTICLE X
In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
(a) To make, alter, amend or repeal the By-Laws of this corporation
without any action on the part of the stockholders; provided, however, that,
notwithstanding any other provisions of law which might otherwise permit a
lesser vote or no vote, the affirmative vote of the holders of at least eighty
percent (80%) of the voting power of all of the then outstanding shares of
capital stock of this corporation, voting together as a single class, shall be
required to make, alter, amend or repeal any provision of the By-Laws of this
corporation.
(b) To fix, determine, and vary the amount to be maintained as surplus,
and subject to the other provisions and requirements of this Certificate of
Incorporation the amount or amounts to be set apart or reserved as working
capital.
(c) By resolution passed by a majority of the whole board, to designate
three or more of their number to constitute an Executive Committee, which
committee, to the extent provided in said resolution or in the By-Laws of this
corporation, shall have and exercise (except when the board of directors shall
be in session) any and all of the powers of the board of directors in the
management of the business and affairs of this corporation and have power to
authorize the seal of this corporation to be affixed to all papers which may
require it.
(d) To authorize and cause to be executed mortgages and liens, without
limit as to amount, on the real and personal property of this corporation.
(e) To sell, exchange, assign, convey or otherwise dispose of a part of
the property (whether real or personal), assets and effects of this corporation
less than the whole or less than substantially the whole thereof, on such terms
and conditions as they shall deem advisable without the assent of the
stockholders in writing or otherwise.
(f) With the consent in writing of, or pursuant to a vote of, the
holders of a majority of the number of shares of capital stock having voting
power issued and outstanding to sell, exchange, assign, transfer and convey or
otherwise dispose of the whole, or substantially the whole of the property
(whether real or personal), assets, effects and good will of this corporation
(including the corporate franchise and other intangible property of this
corporation) upon such terms and conditions as the board of directors shall deem
expedient and for the best interests of this corporation.
(g) From time to time to determine whether and to what extent and at
what time and place and under what conditions and regulations the accounts and
books of this corporation, or any of them, shall be open to the inspection of
any stockholder; and no stockholder shall have any right to inspect any account,
book or document of this corporation except as conferred by statute or the
By-Laws or as authorized by resolution of the stockholders or board of
directors.
ARTICLE XI
This corporation may in its By-Laws confer powers upon its board of
directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon them by the laws of the State of Delaware.
ARTICLE XII
The stockholders and board of directors shall have power, if the
By-Laws so provide, to hold their meetings and to keep the books of this
corporation (except such as are required by the law of the State of Delaware to
be kept in Delaware) and documents and papers of this corporation outside the
State of Delaware and to have one or more offices within or without the State of
Delaware at such places as may be designated from time to time by the board of
directors.
Any action required or permitted to be taken by the stockholders of
this corporation must be effected at an annual or special meeting of
stockholders of this corporation and may not be effected by any consent in
writing by such stockholders. Special meetings of stockholders of this
corporation may be called only by the board of directors pursuant to a
resolution adopted by a majority of the total number of authorized directors
(whether or not there exist any vacancies in previously authorized directorships
at the time any such resolution is presented to the board of directors for
adoption).
Notwithstanding any other provision of this Certificate of
Incorporation, the affirmative vote of holders of eighty percent (80%) of the
voting power of the shares entitled to vote at an election of directors shall be
required to amend, alter, change or repeal, or to adopt any provision as part of
this Certificate of Incorporation inconsistent with the purpose and intent of
this Article XII.
ARTICLE XIII
All of the powers of this corporation, in so far as the same may be
lawfully vested by this Certificate of Incorporation in the board of directors,
are hereby conferred upon the board of directors of this corporation.
ARTICLE XIV
This corporation reserves the right to amend, alter, change, add to or
repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by statute, and all rights and powers
conferred by this Certificate of Incorporation on stockholders, directors and
officers are granted subject to this reservation.
ARTICLE XV
A. In addition to any affirmative vote required by law or this
Certificate of Incorporation or the By-Laws of this corporation, and except as
otherwise expressly provided in Section B of this Article XV, a Business
Combination (as hereinafter defined) with, or proposed by or on behalf of, any
Interested Stockholder (as hereinafter defined) or any Affiliate or Associate
(as hereinafter defined) of any Interested Stockholder or any person who
thereafter would be an Affiliate or Associate of such Interested Stockholder
shall require the affirmative vote of not less than a majority of the votes
entitled to be cast by the holders of all the then outstanding shares of Voting
Stock (as hereinafter defined), voting together as a single class, excluding
Voting Stock beneficially owned by such Interested Stockholder. Such affirmative
vote shall be required notwithstanding the fact that no vote may be required, or
that a lesser percentage or separate class vote may be specified, by law or in
any agreement with any national securities exchange or otherwise.
B. The provisions of Section A of this Article XV shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote, if any, as is required by law or by
any other provision of this Certificate of Incorporation or the By-Laws of this
corporation, or any agreement with any national securities exchange, if all of
the conditions specified in either of the following Paragraphs 1 or 2 are met
or, in the case of a Business Combination not involving the payment of
consideration to the holders of this corporation's outstanding Capital Stock (as
hereinafter defined), if the condition specified in the following Paragraph 1 is
met:
1. The Business Combination shall have been approved, either
specifically or as a transaction which is within an approved category
of transactions, by a majority (whether such approval is made prior to
or subsequent to the acquisition of, or announcement or public
disclosure of the intention to acquire, beneficial ownership of the
Voting Stock that caused the Interested Stockholder to become an
Interested Stockholder) of the Continuing Directors (as hereinafter
defined).
2. All of the following conditions shall have been met:
(a) The aggregate amount of cash and the Fair Market Value (as
hereinafter defined), as of the date of the consummation of the
Business Combination, of consideration other than cash to be received
per share by holders of common stock in such Business Combination shall
be at least equal to the highest amount determined under clauses (i)
and (ii) below:
(i) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf of the
Interested Stockholder for any share of common stock in
connection with the acquisition by the Interested Stockholder
of beneficial ownership of shares of common stock (x) within
the two-year period immediately prior to the first public
announcement of the proposed Business Combination (the
"Announcement Date") or (y) in the transaction in which it
became an Interested Stockholder, whichever is higher, in
either case as adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with respect to
common stock; and
(ii) the Fair Market Value per share of common stock
on the Announcement Date or on the date on which the
Interested Stockholder became an Interested Stockholder (the
"Determination Date"), whichever is higher, as adjusted for
any subsequent stock split, stock dividend, subdivision or
reclassification with respect to common stock.
(b) The aggregate amount of cash and the Fair Market Value, as
of the date of the consummation of the Business Combination, of
consideration other than cash to be received per share by holders of
shares of any class or series of outstanding Capital Stock, other than
common stock, shall be at least equal to the highest amount determined
under clauses (i) and (ii) below:
(i) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf of the
Interested Stockholder for any share of such class or series
of Capital Stock in connection with the acquisition by the
Interested Stockholder of beneficial ownership of shares of
such class or series of Capital Stock (x) within the two-year
period immediately prior to the Announcement Date or (y) in
the transaction in which it became an Interested Stockholder,
whichever is higher, in either case as adjusted for any
subsequent stock split, stock dividend, subdivision or
reclassification with respect to such class or series of
Capital Stock; and
(ii) the Fair Market Value per share of such class or
series of Capital Stock on the Announcement Date or on the
Determination Date, whichever is higher, as adjusted for any
subsequent stock split, stock dividend, subdivision or
reclassification with respect to such class or series of
Capital Stock.
The provisions of this Paragraph 2 shall be required to be met with
respect to every class or series of outstanding Capital Stock, whether
or not the Interested Stockholder has previously acquired beneficial
ownership of any shares of a particular class or series of Capital
Stock.
(c) The consideration to be received by holders of a
particular class or series of outstanding Capital Stock shall be in
cash or in the same form as previously has been paid by or on behalf of
the Interested Stockholder in connection with its direct or indirect
acquisition of beneficial ownership of shares of such class or series
of Capital Stock. If the consideration so paid for shares of such class
or series of Capital Stock varied as to form, the form of consideration
for such class or series of Capital Stock shall be either cash or the
form used to acquire beneficial ownership of the largest number of
shares of such class or series of Capital Stock previously acquired by
the Interested Stockholder.
(d) After the Determination Date and prior to the consummation
of such Business Combination: (i) except as approved by a majority of
the Continuing Directors, there shall have been no failure to declare
and pay at the regular date therefor any full quarterly dividends
(whether or not cumulative) payable in accordance with the terms of any
outstanding Capital Stock; (ii) there shall have been no reduction in
the annual rate of dividends paid on the common stock (except as
necessary to reflect any stock split, stock dividend or subdivision of
the common stock), except as approved by a majority of the Continuing
Directors; (iii) there shall have been an increase in the annual rate
of dividends paid on the common stock as necessary to reflect any
reclassification (including any reverse stock split), recapitalization,
reorganization or any similar transaction that has the effect of
reducing the number of outstanding shares of common stock, unless the
failure so to increase such annual rate is approved by a majority of
the Continuing Directors; and (iv) such Interested Stockholder shall
not have become the beneficial owner of any additional shares of
Capital Stock except as part of the transaction that results in such
Interested Stockholder becoming an Interested Stockholder and except in
a transaction that, after giving effect thereto, would not result in
any increase in the Interested Stockholder's percentage beneficial
ownership of any class or series of Capital Stock.
(e) After the Determination Date, such Interested Stockholder
shall not have received the benefit, directly or indirectly (except
proportionately as a stockholder of this corporation), of any loans,
advances, guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by this corporation, whether
in anticipation of or in connection with such Business Combination or
otherwise.
(f) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (the "Act") (or any subsequent provisions replacing such
Act, rules or regulations) shall be mailed to all stockholders of this
corporation at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is
required to be mailed pursuant to such Act or subsequent provisions).
The proxy or information statement shall contain on the first page
thereof, in a prominent place, any statement as to the advisability (or
inadvisability) of the Business Combination that the Continuing
Directors, or any of them, may choose to make and, if deemed advisable
by a majority of the Continuing Directors, the opinion of an investment
banking firm selected by a majority of the Continuing Directors as to
the fairness (or not) of the terms of the Business Combination from a
financial point of view to the holders of the outstanding shares of
Capital Stock other than the Interested Stockholder and its Affiliates
or Associates (as hereinafter defined), such investment banking firm to
be paid a reasonable fee for its services by this corporation.
(g) Such Interested Stockholder shall not have made any major
change in this corporation's business or equity capital structure
without the approval of a majority of the Continuing Directors.
C. The following definitions shall apply with respect to this Article XV:
1. The term "Business Combination" shall mean:
(a) any merger or consolidation of this corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested Stockholder
or (ii) any other company (whether or not itself an Interested
Stockholder) which is or after such merger or consolidation would be an
Affiliate or Associate of an Interested Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition or security arrangement, investment, loan, advance,
guarantee, agreement to purchase, agreement to pay, extension of
credit, joint venture participation or other arrangement (in one
transaction or a series of transactions) with or for the benefit of any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder involving any assets, securities or commitments of this
corporation, any Subsidiary or any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder which (except for
any arrangement, whether as employee, consultant or otherwise, other
than as a director, pursuant to which any Interested Stockholder or any
Affiliate or Associate thereof shall, directly or indirectly, have any
control over or responsibility for the management of any aspect of the
business or affairs of this corporation, with respect to which
arrangements the value test set forth below shall not apply), together
with all other such arrangements (including all contemplated future
events) has an aggregate Fair Market Value and/or involves aggregate
commitments of $50,000,000 or more; or
(c) the adoption of any plan or proposal for the liquidation
or dissolution of this corporation or for any amendment to this
corporation's By-Laws; or
(d) any reclassification of securities (including any reverse
stock split), or recapitalization of this corporation, or any merger or
consolidation of this corporation with any of its Subsidiaries or any
other transaction (whether or not with or otherwise involving an
Interested Stockholder) that has the effect, directly or indirectly, of
increasing the proportionate share of any class or series of Capital
Stock, or any securities convertible into Capital Stock or into equity
securities of any Subsidiary, that is beneficially owned by any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder; or
(e) any agreement, contract or other arrangement providing for
any one or more of the actions specified in the foregoing clauses (a)
to (d).
2. The term "Capital Stock" shall mean all capital stock of
this corporation authorized to be issued from time to time under
Article IV of this Certificate of Incorporation, and the term "Voting
Stock" shall mean all Capital Stock which by its terms may be voted on
all matters submitted to stockholders of this corporation generally.
3. The term "person" shall mean any individual, firm, company,
or other entity, and shall include any group comprised of any person
and any other person with whom such person or any Affiliate or
Associate of such person has any agreement, arrangement or
understanding, directly or indirectly, for the purpose of acquiring,
holding, voting or disposing of Capital Stock.
4. The term "Interested Stockholder" shall mean any person
(other than the corporation or any Subsidiary and other than any
profit-sharing, employee stock ownership or other employee benefit plan
of this corporation or any Subsidiary or any trustee of, or fiduciary
with respect to, any such plan when acting in such capacity) who (a) is
or has announced or publicly disclosed a plan or intention to become
the beneficial owner of Voting Stock representing twenty percent (20%)
or more of the votes entitled to be cast by the holders of all then
outstanding shares of Voting Stock; or (b) is an Affiliate or Associate
of this corporation and at any time within the two-year period
immediately prior to the date in question, was the beneficial owner of
Voting Stock representing twenty percent (20%) or more of the votes
entitled to be cast by the holders of all then outstanding shares of
Voting Stock.
5. A person shall be a "beneficial owner" of any Capital Stock
(a) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; (b) which such person or any
of its Affiliates or Associates has, directly or indirectly, (i) the
right to acquire (whether such right is exercisable immediately or
subject only to the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (ii) the right
to vote pursuant to any agreement, arrangement or understanding; or (c)
which is beneficially owned, directly or indirectly, by any other
person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of Capital Stock.
For the purposes of determining whether a person is an Interested
Stockholder pursuant to Paragraph 4 of this Section C, the number of
shares of Capital Stock deemed to be outstanding shall include shares
deemed beneficially owned by such person through application of this
Paragraph 5 of Section C, but shall not include any other shares of
Capital Stock that may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
6. The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 under the Act
as in effect on the date that Article XV is approved by the Board (the
term "registrant" in said Rule 12b-2 meaning in this case, this
corporation).
7. The term "Subsidiary" means any company of which a majority
of any class of equity security is beneficially owned by this
corporation; provided, however, that for the purposes of the definition
of Interested Stockholder set forth in Paragraph 4 of this Section C,
the term "Subsidiary" shall mean only a company of which a majority of
each class of equity security is beneficially owned by this
corporation.
8. The term "Continuing Director" means any member of the
board of directors of this corporation (the "Board of Directors"),
while such person is a member of the Board of Directors, who is not an
Affiliate or Associate or representative of the Interested Stockholder
and was a member of the Board of Directors prior to the time that the
Interested Stockholder became an Interested Stockholder, and any
successor of a Continuing Director while such successor is a member of
the Board of Directors, who is not an Affiliate or Associate or
representative of the Interested Stockholder and is recommended or
elected to succeed the Continuing Director by a majority of Continuing
Directors.
9. The term "Fair Market Value" means (a) in the case of cash,
the amount of such cash; (b) in the case of stock, the highest closing
sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York
Stock Exchange-Listed Stocks, or, if such stock is not quoted on the
Composite Tape, on the New York Stock Exchange, or, if such stock is
not listed on such Exchange, on the principal United States securities
exchange registered under the Act on which such stock is listed, or, if
such stock is not listed on any such exchange, the highest closing bid
quotation with respect to a share of such stock during the 30-day
period preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any similar
system then in use, or if no such quotations are available, the fair
market value on the date in question of a share of such stock as
determined by a majority of the Continuing Directors in good faith; and
(c) in the case of property other than cash or stock, the fair market
value of such property on the date in question as determined in good
faith by a majority of the Continuing Directors.
10. In the event of any Business Combination in which this
corporation survives, the phrase "consideration other than cash to be
received" as used in Paragraphs 2(a) and 2(b) of Section B of this
Article XV shall include the shares of common stock and/or the shares
of any other class or series of Capital Stock retained by the holders
of such shares.
D. A majority of the Continuing Directors shall have the power and duty
to determine for the purposes of this Article XV on the basis of information
known to them after reasonable inquiry, (a) whether a person is an Interested
Stockholder, (b) the number of shares of Capital Stock or other securities
beneficially owned by any person, (c) whether a person is an Affiliate or
Associate of another, (d) whether the proposed action is with, or proposed by,
or on behalf of an Interested Stockholder or an Affiliate or Associate of an
Interested Stockholder, and (e) whether the assets that are the subject of any
Business Combination have, or the consideration to be received for the issuance
or transfer of securities by this corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $50,000,000 or more. Any such
determination made in good faith shall be binding and conclusive on all parties.
E. Nothing contained in this Article XV shall be construed to relieve
any Interested Stockholder from any fiduciary obligation imposed by law.
F. The fact that any Business Combination complies with the provisions
of Section B of this Article XV shall not be construed to impose any fiduciary
duty, obligation or responsibility on the Board of Directors, or any member
thereof, to approve such Business Combination or recommend its adoption or
approval to the stockholders of this corporation, nor shall such compliance
limit, prohibit or otherwise restrict in any manner the Board of Directors, or
any member thereof, with respect to evaluations of or actions and responses
taken with respect to such Business Combination.
G. For the purposes of this Article XV, a Business Combination or any
proposal to amend, repeal or adopt any provision of this Certificate of
Incorporation inconsistent with this Article XV (collectively, "Proposed
Action") is presumed to have been proposed by, or on behalf of, an Interested
Stockholder or an Affiliate or Associate of an Interested Stockholder or a
person who thereafter would become such if (1) after the Interested Stockholder
became such, the Proposed Action is proposed following the election of any
director of this corporation who, with respect to such Interested Stockholder,
would not qualify to serve as a Continuing Director, or (2) such Interested
Stockholder, Affiliate, Associate or person votes for or consents to the
adoption of any such Proposed Action, unless as to such Interested Stockholder,
Affiliate, Associate or person, a majority of the Continuing Directors makes a
good faith determination that such Proposed Action is not proposed by or on
behalf of such Interested Stockholder, Affiliate, Associate or person, based on
information known to them after reasonable inquiry.
H. Notwithstanding any other provisions of this Certificate of
Incorporation or the By-Laws of this corporation (and notwithstanding the fact
that a lesser percentage or separate class vote may be specified by law, this
Certificate of Incorporation or the By-Laws of this corporation), the
affirmative vote of the holders of not less than a majority of the votes
entitled to be cast by the holders of all the then outstanding shares of Voting
Stock, voting together as a single class, excluding Voting Stock beneficially
owned by such Interested Stockholder shall be required to amend or repeal, or
adopt any provisions inconsistent with, this Article XV; provided, however, that
this Section H shall not apply to, and such majority vote shall not be required
for, any amendment, repeal or adoption unanimously recommended by the Board of
Directors if all of such directors are persons who would be eligible to serve as
Continuing Directors within the meaning of Section C, Paragraph 8 of this
Article XV.
<PAGE>
ARTICLE XVI
No director shall be personally liable to the corporation or its
stockholders for monetary damages for any breach of fiduciary duty by such
director as a director. Notwithstanding the foregoing sentence, a director shall
be liable to the extent provided by applicable law (i) for breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) pursuant to Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived an
improper personal benefit. No amendment to or repeal of this Article XVI shall
apply to or have any effect on the liability or alleged liability of any
director of the corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment.
IN WITNESS WHEREOF, Transamerica Corporation has caused this Restated
Certificate of Incorporation to be signed by Frank C. Herringer, its Chairman,
President and Chief Executive Officer, and attested by Shirley H. Buccieri, its
Secretary, this 17th day of December, 1998.
TRANSAMERICA CORPORATION
By: /s/ Frank C. Herringer
Chairman, President and
Chief Executive Officer
[SEAL]
Attested:
By: /s/ Shirley Buccieri
Secretary
Exhibit 3(ii)
BY-LAWS
OF
TRANSAMERICA CORPORATION
-------------------------------
OFFICES
1. The principal office shall be in the City of Wilmington, County of
New Castle, State of Delaware. The corporation may also have offices at such
other places as the Board of Directors may from time to time appoint or the
business of the corporation may require.
SEAL
2. The corporate seal shall have inscribed thereon the name of the
corporation, and the words "Incorporated October 11, 1928, Delaware." Said seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
otherwise reproduced. The Secretary may have duplicate seals made and deposited
for use with such officers as the Board of Directors may designate.
It shall not be necessary to the validity of any instrument executed
by any authorized officer or officers of this corporation that the execution
of such instrument be evidenced by the corporate seal; and all documents,
instruments, contracts and writings of all kinds signed on behalf of the
corporation by any authorized officer or officers thereof shall be as effectual
and binding on the corporation without the corporate seal as if the execution
of the same had been evidenced by affixing the corporate seal thereto.
STOCKHOLDERS' MEETINGS
3. All meetings of the stockholders shall be held at such office or
place, within or without the State of Delaware, as may be designated by the
Board of Directors and as shall be specified in the notice of the meeting.
4. The annual meeting of the stockholders shall be held on such day of
the year and at such time as may be designated by the Board of Directors and as
shall be specified in the notice of the meeting; provided, however, that in the
absence of such a designation and notice, the annual meeting shall be held on
the fourth Thursday of April in each year, if not a legal holiday under the laws
of said State, then on the next succeeding day not a legal holiday under the
laws of said State, at 11 o'clock A.M., when they shall elect by a plurality
vote, by ballot, a Board of Directors, and transact such other business as may
properly be brought before the meeting.
5. The holders of a majority of the stock issued and outstanding, and
entitled to vote thereat, present in person, or represented by proxy, shall be
requisite and shall constitute a quorum at all meetings of the stockholders for
the transaction of business except as otherwise provided by law, by the
certificate of incorporation or by these by-laws. If, however, such majority
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person, or by proxy, shall
have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until the requisite amount of voting stock shall be
present. At such adjourned meeting at which the requisite amount of voting stock
shall be represented any business may be transacted which might have been
transacted at the original meeting.
6. At each meeting of the stockholders every stockholder having the
right to vote shall be entitled to vote in person, or by proxy appointed by an
instrument in writing subscribed by such stockholder or by his duly authorized
attorney and submitted to the Secretary at or before such meeting, but no such
proxy shall be voted or acted upon after three years from its date, unless said
proxy provides for a longer period. Each stockholder shall have one vote for
each share of stock having voting power, registered in his name on the books of
the corporation; provided, however, that, except where a date shall have been
fixed as a record date for the determination of stockholders entitled to vote as
hereinafter provided in these by-laws, no share of stock shall be voted at any
election for directors which has been transferred on the books of the
corporation after the close of business on the day next preceding the day on
which notice is given. The vote for directors, and upon the demand of any
stockholder, the vote upon any question before the meeting, shall be by ballot.
All actions shall be had and all questions decided by a plurality vote, except
as otherwise specifically provided by statute or by the certificate of
incorporation or by these by-laws.
7. Written notice of the annual meeting shall be mailed to each
stockholder entitled to vote thereat at such address as appears on the records
of the corporation, not less than ten nor more than sixty days prior to the
meeting.
8. Special meetings of the stockholders, for any purpose, or purposes,
may be called only by the Board of Directors pursuant to a resolution adopted by
a majority of the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board of Directors for adoption). Such resolution
shall state the purpose or purposes of the proposed meeting.
9. Business transacted at all special meetings shall be confined to the
objects stated in the call.
10. Written notice of a special meeting of stockholders, stating the
time and place and object thereof, shall be mailed, postage prepaid, at least
ten but not more than sixty days before such meeting, to each stockholder
entitled to vote thereat at such address as appears on the records of the
corporation.
10.1 Certain Procedures Regarding Meetings of Stockholders
(A)(1) Nominations of persons for election to the Board of
Directors of the corporation and the proposal of business to be
considered by the stockholders may be made at an annual meeting of
stockholders only (a) pursuant to the corporation's notice of meeting
(or any supplement thereto), (b) by or at the direction of the Board of
Directors or the Chairman of the Board or (c) by any stockholder of the
corporation who was a stockholder of the corporation of record at the
time the notice provided for in this Section 10.1 is delivered to the
Secretary of the corporation, who is entitled to vote at the meeting
and complies with the notice procedures set forth in this Section 10.1.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of
paragraph (A)(1) of this Section 10.1, the stockholder must have given
timely notice thereof in writing to the Secretary of the corporation
and such other business must otherwise be a proper matter for
stockholder action. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of the
corporation not later than the close of business on the 70th day nor
earlier than the close of business on the 90th day prior to the first
anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is more than 20
days before or more than 70 days after such anniversary date, notice by
the stockholder to be timely must be so delivered not earlier than the
close of business on the 90th day prior to such annual meeting and not
later than the close of business on the later of the 70th day prior to
such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made by the
corporation. In no event shall the public announcement of an
adjournment or postponement of an annual meeting commence a new time
period for the giving of a stockholder's notice as described above.
Such stockholder's notice shall set forth: (a) as to each person whom
the stockholder proposes to nominate for election or reelection as a
director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an
election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and Rule 14a-11 thereunder (and such person's
written consent to being named in the proxy statement as a nominee and
to serving as a director if elected); (b) as to any other business that
the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting,
the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made, and in
the event that such business includes a proposal to amend the By-Laws
of the corporation, the language of the proposed amendment; and (c) as
to the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the corporation's books,
and of such beneficial owner, (ii) the class and number of shares of
the corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, (iii) a representation that the
stockholder is a holder of record of stock of the corporation entitled
to vote at such meeting and intends to appear in person or by proxy at
the meeting to propose such business or nomination, and (iv) a
representation whether the stockholder or the beneficial owner, if any,
intends or is part of a group which intends to (a) deliver a proxy
statement and form of proxy to holders of at least the percentage of
the corporation's outstanding common stock required to approve or adopt
the proposal or elect the nominee and/or (b) otherwise solicit proxies
from stockholders in support of such proposal or nomination. The
corporation may require any proposed nominee to furnish such other
information as it may reasonably require to determine the eligibility
of such proposed nominee to serve as a director of the corporation.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Section 10.1 to the contrary, 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 80 days prior to the
first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section 10.1 shall also be
considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the corporation not
later than the close of business on the 10th day following the day on
which such public announcement is first made by the corporation.
(B) Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
corporation's notice of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the corporation's notice of meeting (a)
by or at the direction of the Board of Directors or (b) provided that the Board
of Directors has determined that directors shall be elected at such meeting, by
any stockholder of the corporation who is a stockholder of record at the time
the notice provided for in this Section 10.1(B) is delivered to the Secretary of
the corporation, who shall be entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 10.1(B). In the event the
corporation calls a special meeting of stockholders for the purpose of electing
one or more directors to the Board of Directors, any such stockholder may
nominate a person or persons (as the case may be) for election to such
position(s) as specified in the corporation's notice of meeting, if the
stockholder's notice containing the information required by paragraph (A)(2) of
this Section 10.1 shall be delivered to the Secretary at the principal executive
offices of the corporation not earlier than the close of business on the 90th
day prior to such special meeting and not later than the close of business on
the later of the 70th day prior to such special meeting, or the tenth day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public announcement of an
adjournment or postponement of a special meeting commence a new time period for
the giving of a stockholder's notice as described above.
(C) (1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 10.1 shall be eligible to be elected at an
annual or special meeting of stockholders of the corporation to serve as
directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 10.1. Except as otherwise provided by
law, the Certificate of Incorporation or these By-Laws, the chairman of the
meeting shall have the power and duty to (i) determine whether a nomination
or any business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set forth in
this Section 10.1 and (ii) if any proposed nomination or business is not in
compliance with this Section 10.1, including if the stockholder or beneficial
owner, if any, on whose behalf the nomination or proposal is made solicits
or is part of a group which solicits proxies in support of such
stockholder's proposal without the stockholder having made the representation
required by clause (c)(iii)of Section (A)(2) of this Section 10.1, to declare
that such defective nomination shall be disregarded or that such proposed
business shall not be transacted.
(2) For purposes of this Section 10.1, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the corporation with the Securities and Exchange Commission pursuant
to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 10.1,
a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 10.1. Nothing in this Section 10.1 shall be deemed to
affect any rights (i) of stockholders to request inclusion of proposals in the
corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of preferred stock to elect directors under
specified circumstances.
DIRECTORS
11. The property and business of this corporation shall be managed by
its Board of Directors, not less than seven nor more than twenty-two in number
as shall be determined by the Board of Directors. The Directors shall be divided
into three classes, designated Class I, Class II and Class III, and each Class
shall consist, as nearly as may be possible, of one-third of the total number of
directors constituting the entire Board of Directors. At the 1986 annual meeting
of stockholders, Class I directors shall be elected for a one-year term, Class
II directors for a two-year term and Class III directors for a three-year term.
At each succeeding annual meeting of stockholders beginning in 1987, successors
to the class of directors whose term expires at that annual meeting shall be
elected for a three-year term. In case the Board of Directors shall change the
number of Directors within the above limits, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in each
class as nearly equal as possible and any additional Director of any class
elected to fill a vacancy resulting from an increase in such class shall hold
office for a term that shall coincide with the remaining term of that class, but
in no case will a decrease in the number of Directors shorten the term of any
incumbent Director. A Director shall hold office until the annual meeting for
the year in which such Director's term expires and until his or her successor
shall be elected and qualified, subject, however, to such Director's prior
death, resignation, retirement, disqualification or removal from office.
12. Any vacancy in the Board of Directors that results from an increase
in the number of Directors may be filled by a majority of the Directors then in
office, provided that a quorum is present, and any other vacancy occurring in
the Board of Directors may be filled by a majority of the directors then in
office, even if less than a quorum, or by a sole remaining director, and each
Director elected to fill a vacancy not resulting from an increase in the number
of directors shall have the same remaining term as that of such Director's
predecessor.
Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of preferred stock or preference stock issued by this
corporation shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the election, term of
office, filling of vacancies and other features of such directorships shall be
governed by the terms of this corporation's certificate of incorporation
applicable thereto, and such directors so elected shall not be divided into
classes pursuant to Article IX of such certificate of incorporation unless
expressly provided by the terms thereof. The Directors of this corporation need
not be stockholders.
13. The Directors may hold their meetings and have one or more offices,
and keep the books of the corporation outside of Delaware or at such other
offices of the corporation or other places as they may from time to time
determine.
14. Directors, in addition to expenses of attendance, shall be allowed
such compensation as may be fixed from time to time by resolution adopted by a
majority of the whole Board of Directors; provided that nothing herein contained
shall be construed to preclude any Director from serving the corporation in any
other capacity and receiving compensation therefor.
15. In addition to the powers and authorities by these by-laws
expressly conferred upon it, the Board may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or by
the certificate of incorporation or by these by-laws directed or required to be
exercised or done by the stockholders; provided, however that no portion of the
holdings of the corporation of voting securities in any subsidiary company shall
be sold or otherwise disposed of, if such sale or disposition would reduce the
voting power of the corporation in such subsidiary below a majority of the total
voting power thereof, without approval of at least a majority of the whole Board
of Directors, either expressed at a meeting by resolution concurred in by a
majority of the whole Board of Directors or by written consent executed by at
least a majority of all the members of the Board.
COMMITTEES
16. The Board of Directors, by resolution adopted by a majority of the
whole Board, may designate an Executive Committee to consist of three or more
Directors to hold office at the pleasure of the Board and by like resolution may
fill vacancies in, or reconstitute the membership of, the Executive Committee.
Meetings of the Executive Committee for any purpose or purposes may be called by
the Chairman of the Board, the Chief Executive Officer, the President, or the
Chairman of the Executive Committee, and shall be called by any of them at the
request in writing of at least two members of the Executive Committee, to be
held in such place in the City and County of San Francisco, or at any other
place within or without the State of California, as shall be designated from
time to time by the Chairman of the Board, the Chief Executive Officer, the
President, the Chairman of the Executive Committee or the Executive Committee
and indicated in the notice of such meetings.
At least twenty-four hours' notice of such meetings shall be
given to each member of the Executive Committee either personally or by telegram
or by telephone; provided, however, that if any such meeting is to be held at
any place other than in the City and County of San Francisco notice of such
meeting shall be given personally to each member of the Executive Committee or
may be given by mailing a notice in a postage prepaid envelope addressed to each
such member at his address registered on the books of the corporation, at least
three days before the time fixed for the meeting.
The Executive Committee shall, between sessions of the Board, have
such powers as may be delegated to it from time to time by the Board of
Directors.
The Secretary or a member of the Executive Committee shall
keep minutes of all its proceedings, all of which shall be reported as soon as
practicable to the Board of Directors and shall be subject to revision or
rescission by the Board of Directors provided no rights of third parties shall
be affected thereby. The Chairman of the Executive Committee shall preside at
all meetings of the Executive Committee and in his absence the Executive
Committee shall select from its members a Chairman of each meeting. The presence
of a majority of the members of the Executive Committee (but in no event less
than three) shall be necessary to constitute a quorum for the transaction of
business.
17. The Board of Directors may from time to time by resolution create
such other committee or committees of directors, officers, employees or other
persons designated by it for the purpose, to advise with the Board, the
Executive Committee and the officers and employees of the corporation in all
such matters as the Board shall deem advisable and with such functions and
duties as the Board shall by resolution prescribe. A majority of all the members
of any such committee may determine its action and fix the time and place of its
meetings unless the Board of Directors shall otherwise provide. The Board of
Directors shall have power to change the members of any such committee at any
time, to fill vacancies, and to discharge any such committee, either with or
without cause, at any time.
18. Members of the Executive Committee and of any other special or
standing committee shall, in addition to expenses of attendance, be allowed such
compensation as may be fixed from time to time by resolution adopted by a
majority of the whole Board of Directors.
MEETINGS OF THE BOARD
19. The newly elected Board shall have its first meeting at such place
and time as shall be fixed by the vote of the stockholders at the annual
meeting, for the purpose of organization or otherwise, and no notice of such
meeting shall be necessary to the newly elected Directors in order legally to
constitute the meeting; provided, a quorum of the whole Board shall be present;
or they may meet at such place and time as shall be fixed by the consent in
writing of all the Directors, or as shall be stated in the notice of such
meeting given as hereinafter provided in the case of special meetings of the
Board.
20. Regular meetings of the Board of Directors shall be held without
call or notice at such time and place as shall from time to time be fixed by
standing resolution of the Board.
21. Special meetings of the Board may be called by the Chairman of the
Board, by the Chief Executive Officer, or by the President, on twenty-four
hours' notice to each Director, either personally or in writing by mail, or by
telegram, or by telephone; special meetings shall be called by the Chairman of
the Board, the Chief Executive Officer, the President or the Secretary in like
manner and on like notice on the written request of three Directors. Notice of
special meetings of the Board shall state the time and place of the meeting but
need not state the purpose thereof except as otherwise expressly provided in
these by-laws.
22. At all meetings of the Board a majority of the total number of
Directors shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the act of a majority of the Directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute or by the
certificate of incorporation or by these by-laws.
OFFICERS
23. The officers of the corporation shall be chosen by the Directors
and shall be a Chairman of the Board, a Chief Executive Officer, a President,
one or more Vice Presidents, a Treasurer, a Secretary, a Controller, Assistant
Vice Presidents, Assistant Treasurers, Assistant Secretaries and Assistant
Controllers. The Board of Directors may also choose such other officers as they
may determine. Any number of offices may be held by the same person.
24. The Board of Directors shall annually at its organizational meeting
choose a Chairman of the Board, a Chief Executive Officer, a President, one or
more Vice Presidents, the Secretary, the Treasurer, the Controller, and such
other officers as they may determine, none of whom except the Chairman of the
Board and the Chief Executive Officer, need be members of the Board. The Board
of Directors shall also choose annually at its organizational meeting a Chairman
of the Executive Committee, who shall be a member of the Board.
25. The Board may appoint such other officers and agents as it shall
deem necessary, who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time by
the Board.
26. The salaries of all officers and agents of the corporation shall be
fixed by the Board of Directors.
27. The officers of the corporation shall hold office until their
successors are chosen and qualify in their stead. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the whole Board of Directors. If the office of
any officer or officers becomes vacant for any reason, the vacancy shall be
filled by the Board of Directors.
28. In the case of the absence of any officer of the corporation, or
for any other reason that the Board may deem sufficient, the Board may delegate,
for the time being, the powers or duties, or any of them, of such officer to any
other officer, or to any Director, provided, a majority of the entire Board
concur therein.
THE CHAIRMAN OF THE BOARD
29. The Chairman of the Board shall preside at all meetings of the
stockholders and of the Board of Directors and shall be ex-officio a member of
all standing committees with the exception of the Corporate Audit Committee and
the Management Development and Compensation Committee.
CHIEF EXECUTIVE OFFICER,
PRESIDENT AND VICE PRESIDENTS
30. (a) The Chief Executive Officer shall be the chief executive
officer of the corporation and, subject to the Board of Directors, shall have
general and active management of the business, affairs, and property of the
corporation. The Chief Executive Officer shall keep the Board of Directors fully
informed and shall freely consult with them concerning the matters in his
charge. The Chief Executive Officer shall be ex-officio a member of all standing
committees with the exception of the Corporate Audit Committee and the
Management Development and Compensation Committee. In the absence or disability
of the Chairman of the Board, if the Chairman of the Board not be the Chief
Executive Officer, the Chief Executive Officer shall perform the duties and
exercise the powers of the Chairman of the Board.
(b) The President shall do and perform such duties and have
such powers as from time to time may be assigned to him by the Board of
Directors, or, if the President not be the Chief Executive Officer, the Chief
Executive Officer. If the President shall not be the Chief Executive Officer,
the President shall keep the Chief Executive Officer fully informed and shall
freely consult with him concerning the matters in his charge and, in the absence
or disability of the Chief Executive Officer, the President shall perform the
duties and exercise the powers of the Chief Executive Officer.
(c) In the absence or disability of the President, a Vice
President designated by the Board of Directors or by the Executive Committee
shall perform the duties and exercise the powers of the President.
(d) The Chairman of the Executive Committee shall preside at
all meetings of the Executive Committee and shall perform such other duties as
may be prescribed by the Board of Directors or the Executive Committee.
(e) The Vice Presidents shall respectively perform such duties
as may be prescribed by the Board of Directors or the Chief Executive Officer.
THE SECRETARY AND
ASSISTANT SECRETARIES
31. (a) The Secretary shall attend all sessions of the Board and all
meetings of the stockholders and record all votes and the minutes of all
proceedings in a book to be kept for that purpose, and shall perform like duties
for the standing committees when required. The Secretary shall give, or cause to
be given, notice of all meetings of the stockholders, and the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors, or by the Chairman of the Board, under whose supervision the
Secretary shall be. The Secretary shall keep in safe custody the seal of the
corporation, and shall have authority to affix the same to any instrument
requiring it.
(b) The Assistant Secretaries, in the order of their
seniority, shall, in the absence or disability of the Secretary, perform the
duties and exercise the powers of the Secretary, and shall perform such other
duties as may be prescribed by the Board of Directors or the Chairman of the
Board.
THE TREASURER AND
ASSISTANT TREASURERS
32. (a) The Treasurer shall have the custody of the corporate funds and
securities and shall deposit all moneys and other valuable effects in the name
and to the credit of the corporation, in such depositories as may be designated
by the Board of Directors.
(b) The Treasurer shall disburse the funds of the corporation
as may be ordered by the Board, taking proper vouchers for such disbursements,
and shall render to the Chairman of the Board, the Chief Executive Officer, the
President, and the Board of Directors, at the regular meetings of the Board, or
whenever they may require it, an account of all his transactions as Treasurer.
(c) The Treasurer shall give the corporation a bond if
required by the Board of Directors in a sum, and with one or more sureties,
satisfactory to the Board, for the faithful performance of the duties of his
office, and for the restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control
belonging to the corporation; but the Board of Directors may, if they see fit,
dispense with such bond. The Treasurer shall perform such other duties as may be
prescribed by the Board of Directors or by the Chief Executive Officer.
(d) The Assistant Treasurers in the order of their seniority
shall, in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer, and shall perform such other duties as may
be prescribed by the Board of Directors or the Chief Executive Officer.
THE CONTROLLER AND
ASSISTANT CONTROLLERS
33. (a) The Controller shall act as the principal accounting officer in
charge of general accounting books and records of the corporation, and shall
have general supervision of the accounting practices of all subsidiaries.
(b) The Controller shall cause to be prepared, compiled, and
filed, such reports, statements, statistics, and other data as may be required
by law or as may be prescribed by the Chief Executive Officer or the Board of
Directors.
(c) The Controller shall give the corporation a bond if
required by the Board of Directors in a sum, and with one or more sureties,
satisfactory to the Board, for faithful performance of the duties of his office,
and for restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the corporation; but the Board of Directors may, if they see fit, dispense
with such bond.
(d) The Assistant Controllers in the order of their seniority
shall, in the absence or disability of the Controller, perform the duties and
exercise the powers of the Controller, and shall perform such other duties as
may be prescribed by the Board of Directors or the Chief Executive Officer.
INDEMNIFICATION OF DIRECTORS
OR OFFICERS
34. (a) Subject to subsection (d) of this section, any person who was
or is made a party or is threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he or she, or a person of
whom he or she is the legal representative, is or was a Director or officer of
the corporation, or is or was a Director or officer of the corporation serving
at the request of the corporation as a Director, officer, employee or agent of
another corporation, partnership, joint venture, trust or another enterprise,
whether the basis of such proceeding is alleged action in an official capacity
as a Director or officer or in any other capacity while serving as a Director or
officer, shall be indemnified and held harmless by the corporation to the
fullest extent permitted by the Delaware General Corporation Law as the same
exists or, subject to subsection (o) of this section, may hereafter be amended,
against losses, liabilities and expenses (including attorneys' fees, judgments,
fines and amounts paid in settlement) actually and reasonably incurred or
suffered by him or her in connection with such action, suit or proceeding;
provided, however, that no indemnification shall be provided to any such person
if a judgment or other final adjudication adverse to the Director or officer
establishes that the Director or officer did not act in good faith and in a
manner such Director or officer reasonably believed to be in or not opposed to
the best interests of the corporation or, with respect to any criminal action or
proceeding, had reasonable cause to believe his or her conduct was unlawful; and
provided, further, that except as to actions to enforce indemnification rights
pursuant to subsection (f) of this section, the corporation shall indemnify any
such person seeking indemnification in connection with an action, suit or
proceeding (or part thereof) initiated by such person only if the action, suit
or proceeding (or part thereof) was authorized by the Board of Directors of the
corporation. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
(b) Subject to subsection (d) of this section, any person who
was or is made a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he or she is or was a
Director or officer of the corporation, or is or was a Director or officer of
the corporation serving at the request of the corporation as a Director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or another enterprise shall be indemnified by the corporation against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection with the defense or settlement of such action or suit if he or
she acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery of the State of Delaware
or such other court shall deem proper.
(c) Notwithstanding the other provisions of this section, to
the extent that a Director or officer of the corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in subsections (a) and (b) of this section, or in defense of any claim, issue or
matter therein, he or she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation unless a
determination is made (1) by the Board of Directors by a majority vote of a
quorum consisting of Directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested Directors so directs, by independent legal counsel (who
may be the regular counsel of the corporation) in a written opinion, or (3) by
the stockholders that indemnification of the Director or officer is not proper
in the circumstances because he or she has not met the applicable standard of
conduct set forth in subsections (a) and (b) of this section.
(e) Expenses incurred (including attorneys' fees) by a
Director or officer in defending a civil or criminal action, suit or proceeding
shall be paid by the corporation in advance of the final disposition of such
action, suit or proceeding; provided, however, that the payment of such expenses
incurred by a Director or officer in his or her capacity as a Director or
officer (and not in any other capacity in which service was or is rendered by
such person while a Director or officer) in advance of the final disposition of
such action, suit or proceeding shall be made only upon receipt of an
undertaking by or on behalf of the Director or officer to repay such amount if
it shall ultimately be determined that he or she is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
incurred by other employees and agents of the corporation (or by the Directors
or officers not acting in their capacity as such, including service with respect
to employee benefit plans) may be so paid upon such terms and conditions, if
any, as the Board of Directors deems appropriate.
(f) If a request to be indemnified under subsections (a) and
(b) of this section is made, the Board of Directors shall make a determination
pursuant to Section 145(d) of the Delaware General Corporation Law within thirty
days after such request as to whether the person so requesting indemnification
is entitled to indemnification under this section and the Delaware General
Corporation Law. If a claim under subsections (a), (b), (c) or (e) of this
section is not paid in full by the corporation within thirty days after a
written claim has been received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense (including attorneys' fees) of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending an action, suit or proceeding
in advance of its final disposition where the undertaking, if any is required,
has been tendered to the corporation) that the claimant has not met the
standards of conduct that make it permissible under the Delaware General
Corporation Law or this section for the corporation to indemnify the claimant
for the amount claimed. The burden of proving such a defense shall be on the
corporation. 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 action that indemnification of
the claimant is proper under the circumstances because he or she 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 claimant had
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that claimant has not met the applicable standard of
conduct.
(g) The rights provided by or granted pursuant to the other
subsections of this section shall be a contract right, and shall not be deemed
exclusive of any other rights to which those seeking indemnification and
advancement of expenses are or hereafter may be entitled under any statute,
provision of the certificate of incorporation, by-law, agreement, vote of
stockholders or disinterested Directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office, it being the policy of the corporation that indemnification of the
persons specified in subsections (a) and (b) of this section shall be made to
the fullest extent permitted by law the Delaware General Corporation Law as the
same exists or, subject to subsection (o) of this section, may hereafter be
amended.
(h) The corporation may purchase and maintain insurance to
protect itself and any person who is or was a Director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a Director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability, expense or loss
asserted against him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the corporation would
have the power to indemnify him or her against such liability, expense or loss
under the provisions of this section or applicable law.
(i) The rights provided by, or granted pursuant to, this
section shall, continue as to a person who has ceased to be a Director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(j) The corporation may provide rights to indemnification and
to the advancement of expenses to employees and agents of the corporation who
are not Directors or officers of the corporation with such scope and effect as
determined from time to time by the Board of Directors.
(k) For purposes of this section, references to the
"corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or another enterprise,
shall stand in the same position under the provisions of this section with
respect to the resulting or surviving corporation as he or she would have with
respect to such constituent corporation if its separate existence had continued.
(l) For the purposes of any determination under subsection (d)
of this section, a person shall be deemed to have acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his or her conduct was
unlawful, if his or her action is based on the records or books of account of
the corporation or another enterprise, or on information supplied to him or her
by the officers of the corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the corporation or another
enterprise or on information or records given or reports made to the corporation
or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the corporation or
another enterprise. The provisions of this subsection shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set forth in subsections
(a) or (b) of this section, as the case may be.
(m) For purposes of this section, references to "another
enterprise" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a Director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such Director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in a
manner he or she reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this section.
(n) The Board of Directors is specifically authorized, without
any action on the part of the stockholders, to alter, amend or repeal this
section, to such an extent and in such manner as the law of Delaware, or other
applicable law, relating to indemnification of the Directors, officers,
employees and agents herein referred to may, at any time and from time to time,
authorize or permit; provided, however, that any amendment, repeal or
modification of this section shall not (i) in any way diminish or adversely
affect any right or protection of any Director, officer, employee or agent of
the Corporation existing at the time of such amendment, repeal, or modification,
or the obligations of the corporation arising hereunder, or (ii) apply to the
indemnification of any such person for liability, expense or loss stemming from
actions or omissions occurring prior to such amendment, repeal or modification.
(o) Any person entitled to be indemnified or to the
reimbursement or advancement of expenses as a matter of right pursuant to this
section shall be entitled to the greater of the indemnification (or advancement
of expenses) provided (i) under the applicable law in effect at the time of the
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or (ii) under the applicable law in effect at the
time indemnification (or advancement of expenses) is sought.
CERTIFICATES OF STOCK
35. The certificates of stock of the corporation shall be numbered and
shall be entered in the books of the corporation as they are issued. They shall
exhibit the holder's name and number of shares and shall be signed by the
Chairman of the Board, the Chief Executive Officer, the President, or a Vice
President, and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary. Where a certificate is countersigned (1) by a transfer
agent other than the corporation or its employee, or (2) by a registrar other
than the corporation or its employee, any other signature on the certificate may
be a facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate 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.
TRANSFERS OF STOCK
36. Transfers of stock shall be made on the books of the corporation
only by the person named in the certificate or by attorney, lawfully constituted
in writing, and upon surrender of the certificate therefor.
FIXING RECORD DATE
37. (a) In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date shall not be more
than sixty nor less than ten days before the date of such meeting. If no record
date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the date on which the meeting is held. 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.
(b) In order that the corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty days
prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto.
REGISTERED STOCKHOLDERS
38. The corporation shall be entitled to treat the holder of record of
any share or shares of stock as the holder in fact thereof and accordingly shall
not be bound to recognize any equitable or other claim to or interest in such
share on the part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by the laws of Delaware.
LOST CERTIFICATES
39. The Board of Directors may authorize the issue of a new certificate
of stock in the place of any certificate theretofore issued by the corporation,
alleged to have been lost or destroyed, and the Board of Directors may, in their
discretion, require the owner of the lost or destroyed certificate, or his legal
representatives, to give the corporation a bond sufficient to indemnify the
corporation against any claim that may be made against it on account of the
alleged loss of any such certificate and to furnish such proof of the loss or
destruction of such certificate as they shall deem proper and to comply with
such other regulations as the Board shall from time to time fix including
advertising such loss or destruction in such manner as the Board of Directors
may require. A new certificate may be issued without requiring any bond when, in
the judgment of the Board of Directors, it is proper to do so.
INSPECTION OF BOOKS AND RECORDS
40. The Directors shall determine from time to time whether, and, if
allowed when and under what conditions and regulations the books and records of
the corporation (except such as may by statute be specifically open to
inspection) or any of them shall be open to the inspection of the stockholders,
and the stockholders' rights in this respect are and shall be restricted and
limited accordingly.
CHECKS
41. All checks or demands for money and notes of the corporation shall
be signed by such officer or officers as the Board of Directors may from time to
time designate.
FISCAL YEAR
42. The fiscal year shall begin the first day of January each year.
DIVIDENDS
43. Dividends upon the capital stock of the corporation, subject to the
provisions of the certificate of incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property, or in shares of the capital stock.
Before payment of any dividend there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
Directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the Directors shall think conducive to the interests of the
corporation.
DIRECTORS' ANNUAL STATEMENT
44. The Board of Directors shall present at each annual meeting, and
when called for by vote of the stockholders, at any special meeting of the
stockholders, a full and clear statement of the business and condition of the
corporation.
NOTICES
45. Whenever under the provisions of these by-laws notice is required
to be given to any Director, committee member, officer or stockholder, it shall
not be construed to mean personal notice, but such notice may be given, in the
case of stockholders, in writing, by mail, by depositing the same in the post
office or letter-box, in a postpaid sealed wrapper, addressed to such
stockholder, at such address as appears on the books of the corporation, or, in
default of other address, to such stockholder at the General Post Office in the
City of Wilmington, Delaware, and, in the case of Directors, committee members
and officers, by telephone, or by mail or by telegram to the last business
address known to the Secretary of the corporation, and such notice shall be
deemed to be given at the time when the same shall be thus mailed or telegraphed
or telephoned.
WAIVER OF NOTICE
46. Whenever, under the provisions of these by-laws or of any law, the
stockholders, Directors or committees are authorized to hold any meeting after
notice or after a particular notice, or after the lapse of any prescribed period
of time, such meeting may be held without notice or without said particular
notice or without such lapse of time by the written waiver of notice and written
consent to act, signed by every person entitled to such notice, or entitled to
be present at any such meeting or participate in any such action. Except as
otherwise provided by law, attendance of a person at a meeting shall constitute
a waiver of notice of such meeting.
AMENDMENTS
47. These by-laws may be altered, amended or repealed or new by-laws
may be adopted by the affirmative vote of the holders of at least eighty percent
(80%) of the voting power of all of the then-outstanding shares of capital stock
of the corporation, or by the affirmative vote of a majority of the Board of
Directors, provided a quorum is present, at any regular meeting of the
stockholders or of the Board of Directors or at any special meeting of the
stockholders or of the Board of Directors if notice of such alteration,
amendment, repeal or adoption of new by-laws be contained in the notice of such
special meeting.
