SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-A/A
(AMENDMENT NO. 1)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
AUDITS & SURVEYS WORLDWIDE, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 13-1809586
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(State of Incorporation or Organization) (I.R.S. Employer
Identification no.)
650 AVENUE OF THE AMERICAS, NEW YORK, NEW YORK 10011
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(Address of principal executive offices) (Zip Code)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH EACH
TO BE SO REGISTERED CLASS IS TO BE REGISTERED
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Common Stock, par value $.01 per share American Stock Exchange
If this Form relates to the If this Form relates to the
registration of a class of debt registration of a class of debt
securities and is effective upon securities and is to become
filing pursuant to General effective simultaneously with the
Instruction A(c)(1), please check effectiveness of a concurrent
the following box. [_] registration statement under the
Securities Act of 1933 pursuant to
General Instruction A(c)(2), please
check the following box. [_]
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
None
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
GENERAL
The Company is authorized to issue an aggregate of 30,000,000
shares of Common Stock, $.01 par value per share, of which
13,099,103 were issued and outstanding as of February 25, 1997.
Holders of the Common Stock are entitled to one vote for each
share held of record on all matters submitted to a vote of the
stockholders. Holders of the Common Stock have the exclusive right
to notice of stockholders' meetings and the exclusive power to vote
at such meetings. Holders of the Common Stock do not have cumulative
voting rights, so that holders of more than 50% of the shares of
Common Stock are able to elect all of the Company's directors
eligible for election in a given year. Holders of Common Stock are
entitled to receive ratably such dividends, if any, as may be
declared and paid from time to time by the Board out of funds
legally available therefor. Upon any liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary, holders
of Common Stock are entitled to receive pro rata all assets of the
Company available for distribution to its stockholders after payment
or provision for payment of the debts and other liabilities of the
Company. There are no preemptive or other subscription rights,
conversion rights or redemption, retirement or sinking fund
provisions with respect to shares of Common Stock.
ITEM 2. EXHIBITS.
(a) Restated and Amended Certificate of Incorporation of the
registrant. Incorporated by reference to Exhibit 4.1 to the
registrant's report on Form 10-Q/A for the quarter ended March
31, 1995.
(b)* Amended and Restated By-Laws of the registrant.
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* Filed herewith
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereto duly authorized.
AUDITS AND SURVEYS WORLDWIDE, INC.
Date: February 26, 1997 By: /s/ Solomon Dutka
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Name: Solomon Dutka
Title: Chairman and Chief Executive
Officer
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EXHIBIT 2(B)
AMENDED AND RESTATED
BY-LAWS
OF
AUDITS & SURVEYS WORLDWIDE, INC.
ARTICLE I
Stockholders
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Section 1.1. ANNUAL MEETINGS. An annual meeting of stockholders
shall be held for the election of directors at such date, time and place, either
within or without the State of Delaware, as may be designated by resolution of
the Board of Directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section 1.2. SPECIAL MEETINGS. Special meetings of stockholders may
be called at any time by the Chairman of the Board, the Vice Chairman of the
Board, if any, the President, the Secretary or an Assistant Secretary when
directed to do so by resolution of the Board at a duly convened meeting of the
Board, or at the request in writing of a majority of the Board, to be held at
such time and place either within or without the State of Delaware as may be
stated in the notice of the meeting. A special meeting of stockholders shall be
called by the Secretary upon the written request, stating the purpose of the
meeting, of stockholders who together own of record 66-2/3% of the outstanding
stock of any class entitled to vote at such meeting. Business transacted at all
special meetings shall be confined to the purposes stated in the notice of
meeting.
Section 1.3. NOTICE OF MEETINGS. Whenever stockholders are required
or permitted to take any action at a meeting, a written notice of the meeting
shall be given which shall state the place, date and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called. Unless otherwise provided by law, the written notice of any meeting
shall be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote at such meeting. Except as
otherwise expressly provided by law, no notice of any meeting of stockholders
shall be required to be given to any stockholder who shall attend such meeting
in person or by proxy, or who shall, in person or by attorney thereunto
authorized, waive such notice in writing or by telegraph, facsimile or cable
either before or after such meeting.
Whenever under the provisions of statutes or of the certificate of
incorporation or of these by-laws, notice is required to be given to any
stockholder, it shall not be necessary that personal notice be given, and such
notice may be given in writing, by mail, by telegraph, by facsimile or by any
other lawful means of communication. Notice by mail shall be addressed to such
stockholder, at his
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address as it appears on the records of the corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail.
Section 1.4. ADJOURNMENTS. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 1.5. QUORUM. At each meeting of stockholders, except where
otherwise provided by law or the certificate of incorporation or these by-laws,
the holders of a majority of the outstanding shares of each class of stock
entitled to vote at the meeting, present in person or by proxy, shall constitute
a quorum. For purposes of the foregoing, two or more classes or series of stock
shall be considered a single class if the holders thereof are entitled to vote
together as a single class at the meeting. In the absence of a quorum the
stockholders so present may, by majority vote, adjourn the meeting from time to
time in the manner provided by Section 1.4 of these by-laws until a quorum shall
attend. Shares of its own stock belonging to the corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors of such other corporation is held, directly or indirectly, by the
corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of any
corporation to vote stock, including but not limited to its own stock, held by
it in a fiduciary capacity.
Section 1.6. ORGANIZATION. Meetings of stockholders shall be
presided over by the Chairman of the Board, or in his absence by the President,
or in his absence by the Vice Chairman of the Board, if any, or in his absence
by a Vice President in order of seniority, or in the absence of the foregoing
persons by a chairman designated by the Board of Directors, or in the absence of
such designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 1.7. VOTING; PROXIES. Unless otherwise provided in the
certificate of incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held by
him which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders or to express consent or dissent
to corporate action in writing without a meeting may authorize another person or
persons to act for him by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer period.
A duly executed proxy shall be irrevocable if it states that it is irrevocable
and if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary of the corporation. At all meetings of
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stockholders for the election of directors a plurality of the votes cast shall
be sufficient to elect. All other elections and questions shall, unless
otherwise provided by law or by the certificate of incorporation or these
by-laws, be decided by the vote of the holders of a majority of the outstanding
shares of all classes of stock entitled to vote thereon present in person or by
proxy at the meeting, provided that (except as otherwise required by law or by
the certificate of incorporation) the Board of Directors may require a greater
vote upon any election or question.
Section 1.8. INSPECTORS. The Board of Directors shall, in advance of
any meeting of stockholders, appoint one or more inspectors to act at the
meeting and make a written report thereof. The Board of Directors may designate
one or more persons as alternate inspectors to replace any inspector who fails
to act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his
ability. The inspectors shall ascertain the number of shares outstanding and the
voting power of each, determine the shares represented at a meeting and the
validity of proxies and ballots, count all votes and ballots, determine and
retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors, and certify their determination of
the number of shares represented at the meeting, and their count of all votes
and ballots.
Section 1.9. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF
RECORD. In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. If no record date is fixed:
(1) the record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day
next preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; (2) the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is necessary, shall be the day on which the first
written consent is expressed; and (3) the record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 1.10. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The Secretary
shall prepare and make, at least ten days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be
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open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present. The stock ledger
shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, the list of stockholders or the books of the corporation, or
to vote in person or by proxy at any meeting of stockholders.
Section 1.11. STOCKHOLDER INSPECTION OF CORPORATE RECORDS. Subject
to the provisions of any applicable statute, the Board of Directors shall have
power to determine, from time to time, whether and to what extent and at what
times and places and under what conditions and regulations the accounts,
records, books and documents of the corporation, or any of them, shall be open
to the inspection of the stockholders; and, except as provided above or in any
such statute, no stockholder shall have any right to inspect any account,
record, book or document of the corporation.
ARTICLE II
Board Of Directors
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Section 2.1. NUMBER; QUALIFICATIONS. The business and affairs of the
Corporation shall be managed by its Board of Directors, consisting of not less
than five nor more than fifteen persons. The exact number of directors shall be
determined from time to time by resolution of the Board of Directors. Directors
need not be stockholders.
Section 2.2. ELECTION; RESIGNATION; REMOVAL; VACANCIES. The
directors shall have the power, from time to time, to increase or decrease their
own number, within the minimum and maximum limitations specified herein and in
the certificate of incorporation, by resolution of the Board as hereinabove
provided. Any director may resign at any time upon written notice to the
corporation. The resignation of any director shall take effect at the time
specified in such notice; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective. Any
newly-created directorship resulting from an increase in the number of directors
and any vacancy occurring in the Board of Directors for any cause may be filled
by a majority of the remaining members of the Board of Directors, although such
majority is less than a quorum, or by a plurality of the votes cast at a meeting
of stockholders, and each director so elected shall hold office until his
successor is elected and qualified or until his earlier resignation or removal.
Section 2.3. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held at such places within or without the State of Delaware and
at such times as the Board of Directors may from time to time determine, and if
so determined notices thereof need not be given.
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Section 2.4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be held at any time or place within or without the State of
Delaware whenever called by the Chairman of the Board, by the Vice Chairman of
the Board, if any, by the President or a majority of the members of the Board of
Directors. Notice of each such meeting shall be given to each director, if sent
to him by mail, at least two days before the day on which the meeting is to be
held, or, if sent to him by telegraph, cable, facsimile, telephone or personal
delivery, at least 24 hours before the time the meeting is to be held. Each such
notice shall state the time and place of the meeting but need not state the
purposes thereof, except as otherwise provided by statute or by these by-laws.
Section 2.5. NOTICES. Whenever under the provisions of statutes or
of the certificate of incorporation or of these by-laws, notice is required to
be given to any director, it shall not be necessary that personal notice be
given, and such notice may be given in writing, by mail, addressed to such
director, at his address as it appears on the records of the corporation, with
postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Notice to directors
may also be given by telegraph,facsimile or cable, and such notice shall be
deemed to be given when the same shall be filed, or in person or by telephone,
and such notice shall be deemed to be given when the same shall be delivered.
Except as otherwise expressly provided by law, no notice of any
meeting of the Board shall be required to be given to any director who shall
attend such meeting in person or who shall, in person or by attorney thereunto
authorized, waive such notice in writing or by telegraph, facsimile or cable
either before or after such meeting. No notice of a meeting need be given if all
the directors are present in person. Any business may be transacted at any
meeting of the Board, whether or not specified in a notice of the meeting.
Section 2.6. TELEPHONIC MEETINGS PERMITTED. Members of the Board of
Directors or any committee designated by the Board may participate in a meeting
of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
by-law shall constitute presence in person at such meeting.
Section 2.7. QUORUM; VOTE REQUIRED FOR ACTION. At all meetings of
the Board of Directors a majority of the authorized number of directors shall
constitute a quorum for the transaction of business. Except in cases in which
the certificate of incorporation or these by-laws otherwise provide, the vote of
a majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
Section 2.8. ORGANIZATION. Meetings of the Board of Directors shall
be presided over by the Chairman of the Board, or in his absence by the
President, or in his absence by the Vice Chairman of the Board, if any, or in
their absence by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
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Section 2.9. ACTION BY DIRECTORS BY UNANIMOUS WRITTEN CONSENT.
Unless otherwise restricted by the certificate of incorporation or these
by-laws, any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting if
all members of the Board or of such committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 2.10. SERVICE OF DIRECTORS IN OTHER CAPACITIES. Nothing here
contained shall be construed so as to preclude any director from serving the
corporation in any other capacity, or from serving any of its stockholders,
subsidiaries or affiliated corporations in any capacity, and receiving
compensation therefor.
ARTICLE III
Committees
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Section 3.1. COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in place of any
such absent or disqualified member. Any such committee, to the extent provided
in the resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the corporation, and may authorize the seal of the corporation to
be affixed to all papers which may require it; but no such committee shall have
power or authority in reference to amending the certifi cate of incorporation of
the corporation, adopting an agreement of merger or consolidation, recommending
to the stockholders the sale, lease or exchange of all or substantially all of
the corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of dissolution, or amending these
by-laws; and, unless the resolution expressly so provides, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock.
Section 3.2. COMMITTEE RULES. Unless the Board of Directors
otherwise provides, each committee designated by the Board may make, alter and
repeal rules for the conduct of its business. In the absence of such rules each
committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of these by-laws.
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ARTICLE IV
Officers
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Section 4.1. EXECUTIVE OFFICERS; ELECTION; QUALIFICATIONS; TERM OF
OFFICE; RESIGNATION; REMOVAL; VACANCIES. The Board of Directors shall choose a
Chairman of the Board, a President, a Treasurer and a Secretary. The Board of
Directors may also choose a Vice Chairman of the Board, one or more Vice
Presidents, one or more Assistant Secretaries, a Controller and one or more
Assistant Controllers. Each such officer shall hold office until the first
meeting of the Board of Directors after the annual meeting of stockholders next
succeeding his election, and until his successor is elected and qualified or
until his earlier resignation or removal. Any officer may resign at any time
upon written notice to the corporation. Any such resignation shall take effect
at the time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective. The
Board of Directors may remove any officer with or without cause at any time. Any
number of offices may be held by the same person. Any vacancy occurring in any
office of the corporation by death, resignation, removal or otherwise may be
filled for the unexpired portion of the term by the Board of Directors at any
regular or special meeting.
Section 4.2. THE CHAIRMAN OF THE BOARD. The Chairman of the Board
shall be a member of the Board and shall preside at its meetings and at all
meetings of stockholders. He shall, subject to the direction and under the
supervision of the Board, be the chief executive officer of the corporation and
shall have general charge of the business and affairs of the corporation. He
shall have power in the name of the corporation and on its behalf to execute any
and all deeds, mortgages, contracts, agreements and other instruments in
writing. He shall employ and discharge employees and agents of the corporation,
except such as shall hold their offices by appointment of the Board, but he may
delegate these powers to other officers as to employees under their immediate
supervision. He shall see that the acts of the executive officers conform to the
policies of the corporation as determined by the Board and shall have such
powers and perform such other duties as may from time at time be assigned to him
by the Board.
Section 4.3. THE PRESIDENT. The President shall, subject to the
direction and under the supervision of the Chairman of the Board and the Board,
be the chief operating officer of the corporation and shall have such powers and
perform such duties as generally pertain to the office of President, as well as
such further powers and duties as may be assigned to him by the Chairman of the
Board or by the Board. In the absence of the Chairman of the Board, the
President shall preside at all meetings of the Board of Directors and of the
stockholders.
Section 4.4. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of
the Board, if any, shall be a member of the Board. If the offices of Chairman of
the Board and President are vacant, or if the Chairman of the Board and the
President are absent, he shall preside at meetings of the stockholders and of
the Board. He shall have such powers and perform such duties as may be assigned
to him by the Chairman of the Board or by the Board.
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Section 4.5. VICE PRESIDENTS. Each Vice President shall have such
powers and perform such duties as the Board, the Chairman of the Board, the Vice
Chairman of the Board, if any, or the President may from time to time prescribe,
and shall perform such other duties as may be prescribed in these By-Laws. In
the absence or inability to act of the Chairman of the Board, the Vice Chairman
of the Board, if any, and the President, the Vice President next in order as
designated by the Board or, in the absence of such designation, senior in length
of service in such capacity, who shall be present and able to act, shall perform
all the duties and may exercise any of the powers of the President, subject to
the control of the Board. The performance of any duty by a Vice President shall
be conclusive evidence of his power to act. Except where by law the signature of
the President is required, each of the Vice Presidents shall possess the same
power as the President to sign all certificates, contracts, obligations and
other instruments of the corporation.
Section 4.6. SECRETARY. The Secretary shall record all the
proceedings of the meetings of the stockholders and directors and of any
committees in a book to be kept for that purpose; he shall see that all notices
are duly given in accordance with the provisions of these by-laws or as required
by law, he shall be custodian of the records of the corporation; he shall see
that the corporate seal is affixed to all documents the execution of which, on
behalf of the corporation, under its seal, it duly authorized, and when so
affixed may attest the same; and, in general, he shall perform all duties
incident to the office of secretary of a corporation, and such other duties as,
from time to time, may be assigned to him by the Chairman of the Board or the
Board of Directors or as may be provided by law.
Section 4.7. TREASURER. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
corporation, and shall deposit or cause to be deposited, in the name of the
corporation, all moneys or other valuable effects in such banks, trust companies
or other depositories as shall, from time to time, be selected by or under
authority of the Board of Directors; if required by the Board of Directors, he
shall give a bond for the faithful discharge of his duties, with such surety or
sureties as the Board of Directors may determine; he shall keep or cause to be
kept full and accurate records of all receipts and disbursements in books of the
corporation and shall render to the Board of Directors, whenever requested, an
account of the financial condition of the corporation; and, in general, he shall
perform all the duties incident to the office of treasurer of a corporation, and
such other duties as, from time to time, may be assigned to him by the Chairman
of the Board or the Board of Directors or as may be provided by law.
Section 4.8. CONTROLLER. The Controller shall be the chief
accounting officer of the corporation. He shall keep or cause to be kept all
books of account and accounting records of the corporation and shall keep and
maintain, or cause to be kept and maintained, adequate and correct accounts of
the properties and business transactions of the corporation. He shall prepare or
cause to be prepared appropriate financial statements for the corporation; and,
in general, shall perform all the duties incident to the office of controller of
a corporation, and such other duties as, from time to time, may be assigned to
him by the Chairman of the Board or the Board of Directors or as may be provided
by law.
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Section 4.9. ASSISTANT TREASURERS. In the absence or inability of
the Treasurer to act, any Assistant Treasurer may perform all the duties and
exercise all of the powers of the Treasurer, subject to the control of the
Board. The performance of any such duty shall be conclusive evidence of his
power to act. An Assistant Treasurer shall also perform such other duties as the
Chairman of the Board or the Treasurer or the Board may from time to time assign
to him.
Section 4.10. ASSISTANT SECRETARIES. In the absence or inability of
the Secretary to act, any Assistant Secretary may perform all the duties and
exercise all the powers of the Secretary, subject to the control of the Board.
The performance of any such duty shall be conclusive evidence of his power to
act. An Assistant Secretary shall also perform such other duties as the Chairman
of the Board or the Secretary or the Board may from time to time assign to him.
Section 4.11. OTHER OFFICERS. The Board of Directors may from time
to time appoint such other officers, agents or employees and may delegate to
them such powers and duties as it may deem desirable.
Section 4.12. SALARIES; SERVICE IN OTHER CAPACITIES. The salaries of
the officers shall be fixed from time to time by the Board of Directors. Nothing
contained herein shall preclude any officer from serving the corporation in any
other capacity, including that of director, or from serving any of its
stockholders, subsidiaries or affiliated corporations in any capacity, and
receiving a proper compensation therefor.
ARTICLE V
Stock
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Section 5.1. CERTIFICATES. Every holder of stock shall be entitled
to have a certificate signed by or in the name of the corporation by the
Chairman of the Board, the Vice Chairman of the Board, if any, the President or
a Vice President, and by the Treasurer or an Assistant Treasurer, the Controller
or an Assistant Controller, or the Secretary or an Assistant Secretary, of the
corporation, certifying the number of shares owned by him in the corporation. If
such 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.
If the corporation shall be authorized to issue more than one class
of stock or more than one series of any class, the designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the
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certificate which the corporation shall issue to represent such class or series
of stock, provided that, except in the case of restrictions on transfers of
securities which are required to be noted on the certificate, in lieu of the
foregoing requirements, there may be set forth on the face or back of the
certificate which the corporation shall issue to represent such class or series
of stock, a statement that the corporation will furnish without charge to each
stockholder who so requests the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Section 5.2. LOST, STOLEN OR DESTROYED STOCK CERTIFICATES. The Board
of Directors may direct a new certificate or certificates to be issued in place
of any certificate or certificates theretofore issued by the corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen or
destroyed. Proper evidence of such loss, theft or destruction shall be procured,
if required, by the Board.
Section 5.3. ISSUANCE OF NEW CERTIFICATES. Upon surrender to the
corporation or the transfer agent of the corporation of a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 5.4. RIGHTS OF REGISTERED STOCKHOLDERS. The corporation
shall be entitled to recognize the exclusive right of a person registered on its
books as the owner of shares to receive payment of any dividend or other
distribution or allotment of any rights, or to exercise any rights in respect of
any change, conversion or exchange of stock or for the purpose of any other
lawful action and shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other person, whether
or not it shall have express or other notice thereof, except as otherwise
provided by the laws of Delaware.
ARTICLE VI
Contracts, Loans, Checks, Deposits, Etc.
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Section 6.1. SIGNATURES. All contracts and agreements authorized by
the Board of Directors, and all checks, drafts, bills of exchange or other
orders for the payment of money, issued in the name of the corporation, shall be
signed by such person or persons and in such manner as may from time to time be
designated by the Board of Directors, which designation may be general or
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confined to specific instances; and unless so designated by the Board of
Directors or in these by-laws, no officer, agent or employee shall have any
power or authority to bind the corporation by any contract or engagement or to
pledge its credit or to render it liable pecuniarily for any purpose or for any
amount.
Section 6.2. AUTHORIZATION. No loan shall be contracted on behalf of
the corporation, and no evidence of indebtedness shall be issued in its name,
unless authorized by the Board of Directors. Such authorization may be general
or confined to specific instances. Loans so authorized by the Board of Directors
may be effected at any time for the corporation from any bank, trust company or
other institution, or from any firm, corporation or individual. All bonds,
debentures, notes and other obligations or evidences of indebtedness of the
corporation issued for such loans shall be made, executed and delivered as the
Board of Directors shall authorize. When so authorized by the Board of Directors
any part of or all the properties, including contract rights, assets, business
or good will of the corporation, whether then owned or thereafter acquired, may
be mortgaged, pledged, hypothecated or conveyed or assigned in trust as security
for the payment of such bonds, debentures, notes and other obligations or
evidences of indebtedness of the corporation, and of the interest thereon, by
instruments executed and delivered in the name of the corporation.
Section 6.3. DEPOSIT OF FUNDS. All funds of the corporation not
otherwise employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies or other depositaries as the Board of
Directors may select. The Board of Directors may make such special rules and
regulations with respect to such bank accounts, not inconsistent with the
provisions of these by-laws, as it may deem expedient. For the purpose of
deposit and for the purpose of collec tion for the account of the corporation,
checks, drafts and other orders for the payment of money which are payable to
the order of the corporation shall be endorsed, assigned and delivered by such
person or persons and in such manner as may from time to time be designated by
the Board of Directors.
Section 6.4. APPOINTMENT OF ATTORNEYS AND AGENTS. Unless otherwise
provided by resolution adopted by the Board of Directors, the Chairman of the
Board, the Vice Chairman of the Board, if any, the President or any Vice
President may from time to time appoint an attorney or attorneys, or an agent or
agents, to exercise in the name and on behalf of the corporation the powers and
rights which the corporation may have as the holder of stock or other securities
in any other corporation to vote or to consent in respect of such stock or other
securities; and the Chairman of the Board, the Vice Chairman of the Board, if
any, the President or any Vice President may instruct the person or persons so
appointed as to the manner of exercising such powers and rights and the Chairman
of the Board, the Vice Chairman of the Board, if any, the President or any Vice
President may execute or cause to be executed in the name and on behalf of the
corporation and under its corporate seal, or otherwise, all such written
proxies, powers of attorney or other written instruments as he may deem
necessary in order that the corporation may exercise such powers and rights.
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ARTICLE VII
Indemnification
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Section 7.1. ACTIONS, SUITS OR PROCEEDINGS OTHER THAN BY OR IN THE
RIGHT OF THE CORPORATION. The corporation shall indemnify any person who was or
is a party or is threatened to be made a party to 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 is or was or has agreed to become a director,
officer, employee or agent of the corporation, or is or was serving or has
agreed to serve at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against expenses, including, without limitation,
expenses of investigations, judicial or administrative proceedings or appeals,
amounts paid in settlement by or on behalf of the indemnitee, attorneys' fees
and disbursements and any expenses of establishing a right to indemnification
under this Article VII (the "Expenses"), judgments, fines and penalties actually
and reasonably incurred by him or on his behalf in connection with such action,
suit or proceeding and any appeal therefrom, if he acted in good faith and in a
manner he 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 no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plead 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
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 conduct was unlawful.
Section 7.2. ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION.
The corporation shall indemnify any person who was or is 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 is or was or has agreed to become a director,
officer, employee or agent of the corporation, or is or was serving or has
agreed to serve at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against Expenses, judgments, fines or penalties
actually and reasonably incurred by him or on his behalf in connection with the
defense or settlement of such action or suit and any appeal therefrom, if he
acted in good faith and in a manner he 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 Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of such liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such costs,
charges and expenses which the Court of Chancery of Delaware or such other court
shall deem proper.
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Section 7.3. INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding the other provisions of this Article VII, to the extent that a
director, officer, employee or agent of the corporation has been successful on
the merits or otherwise, including, without limitation, the dismissal of an
action without prejudice, in defense of any action, suit or proceeding referred
to in Sections 7.1 and 7.2, or in defense of any claim, issue or matter therein,
he shall be indemnified against all Expenses actually and reasonably incurred by
him or on his behalf in connection therewith.
Section 7.4. DETERMINATION OF RIGHT TO INDEMNIFICATION. Any
indemnification under Sections 7.1 and 7.2 (unless ordered by a court) shall be
paid by the corporation upon a determination made (1) by the Board 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 in a written opinion, or (3) by the stockholders, that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in Sections 7.1
and 7.2.
Section 7.5. ADVANCEMENT OF EXPENSES. Expenses incurred by a person
referred to in Sections 7.1 and 7.2 in defending a civil or criminal action,
suit or proceeding shall be paid by the corporation in advance at the written
request of a director, officer, employee or agent, if such person shall
undertake to repay such amount to the extent that it is ultimately determined
that such person was not entitled to such indemnification; provided, however,
such an undertaking shall not be secured and shall be accepted without reference
to such person's financial ability to make such repayment and shall not be
claimable against such person's spouse or children. The Board may, in the manner
set forth above in Section 7.4, and upon approval of such director, officer,
employee or agent of the corporation, authorize the corporation's counsel to
represent such person, in any action, suit or proceeding, whether or not the
corporation is a party to such action, suit or proceeding.
Section 7.6. PROCEDURE FOR INDEMNIFICATION. Any indemnification
under Sections 7.1, 7.2 and 7.3 or advance of Expenses under Section 7.5 shall
be made promptly, and in any event within 45 days, upon the written request of
the director, officer, employee or agent. The right to indemnification or
advancement of Expenses as granted by this Article VII shall be enforceable by
the director, officer, employee or agent in any court of competent jurisdiction,
if the corporation denies such request, in whole or in part, or if no
disposition thereof is made within 45 days. Such person's Expenses incurred in
connection with successfully establishing such right to indemnification, in
whole or in part, in any such action shall also be indemnified by the
corporation. It shall be a defense to any such action (other than an action
brought to enforce a claim for the advancement of Expenses under Section 7.5
where the required undertaking, if any, has been received by the corporation)
that the claimant has not met the standard of conduct set forth in Sections 7.1
or 7.2, but the burden of proving such defense shall be on the corporation.
Neither the failure of the corporation (including its Board, its independent
legal counsel, and its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because such person has met the applicable standard of conduct
set forth in Sections 7.1 and 7.2, nor the fact that there has been an actual
determination by the corporation (including its Board, its independent legal
counsel, and its stockholders) that the claimant has not met
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such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
Section 7.7. OTHER RIGHTS. The indemnification and advancement of
Expenses provided by, or granted pursuant to, this Article VII shall not be
deemed exclusive of any other rights to which a person seeking indemnification
or advancement of Expenses may be entitled under any law (common or statutory),
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in such person's official capacity and as to action in another
capacity while holding office or while employed by or acting as agent for the
corporation.
Section 7.8. INSURANCE. The corporation shall purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him or on his behalf
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this Article VII, provided that such insurance is available on
acceptable terms, which determination shall be made by a vote of a majority of
the entire Board.
Section 7.9. CONTINUATION OF RIGHT TO INDEMNIFICATION. The
indemnification and advancement of Expenses provided by, or granted pursuant to,
this Article VII 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 estate, heirs,
executors and administrators of such person.
Section 7.10. AMENDMENT OF ARTICLE VII. Neither the amendment nor
repeal of this Article VII, nor the adoption or amendment of any other provision
of these by-laws inconsistent with this Article VII, shall apply to or affect in
any respect the applicability of this Article VII with respect to any act or
failure to act that occurred prior to such amendment, repeal or adoption.
Section 7.11. SAVINGS CLAUSE. If this Article VII or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the corporation shall nevertheless indemnify each director,
officer, employee and agent of the corporation as to Expenses, judgments, fines
and penalties with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the corporation, to the full extent permitted by any applicable portion
of this Article VII that shall not have been invalidated and to the full extent
permitted by applicable law.
ARTICLE VIII
Miscellaneous
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Section 8.1. FISCAL YEAR. The fiscal year of the corporation shall
be determined by resolution of the Board of Directors.
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Section 8.2. SEAL. The corporate seal shall have the name of the
corporation inscribed thereon and shall be in such form as may be approved from
time to time by the Board of Directors.
Section 8.3. INTERESTED DIRECTORS; QUORUM. No contract or
transaction between the corporation and one or more of its directors or
officers, or between the corporation and any other corporation, partnership,
association or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose, if: (1) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board or committee
in good faith authorizes the contract or transaction by the affirmative vote of
a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (2) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (3) the contract or transaction is fair as the corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee
thereof, or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
Section 8.4. FORM OF RECORDS. Any records maintained by the
corporation in the regular course of its business, including its stock ledger,
books of account, and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs, or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
Section 8.5. AMENDMENT OF BY-LAWS. These by-laws may be altered or
repealed 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 or repeal is contained in the notice of such special
meeting. The penultimate sentence of Section 1.2 may be altered or repealed only
by the affirmative vote of stockholders who together own of record not less than
66-2/3% of the outstanding stock entitled to vote at such meeting or by the
Board of Directors.
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