Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 288 1.25M
Business-Combination Transaction
2: EX-3.1 Cerificate of Incorporation of Modtech Holding,Inc 5 21K
3: EX-3.2 Bylaws of Modtech Holdings, Inc 13 53K
4: EX-3.5 Articles of Incorporation of Spi Holdings, Inc 3 16K
5: EX-3.6 Bylaws of Spi Holdings, Inc. 17 70K
6: EX-3.7 Certificate of Designation of Modtech Holdings 6 27K
7: EX-3.8 Designation of Spi Holdings, Inc. 61 211K
8: EX-4 Registration Rights Agreement 12 49K
9: EX-10.1 Transaction Advisory Agreement 6 28K
11: EX-10.10 Lease Between Baron Homes, Inc. & David V. Homme 26 132K
12: EX-10.11 Lease Between Ronfran Incorporation 29 135K
13: EX-10.12 Lease Between Arizona Millwork, Inc. 35 152K
10: EX-10.9 Lease Between Office Master of Texas, Inc. 14 39K
14: EX-23.1 Consent of Kpmg Peat Marwick LLP 1 7K
15: EX-23.2 Consent of Arthur Andersen LLP 1 7K
17: EX-99.1 Form of Modtech, Inc Proxy 2± 10K
18: EX-99.2 Form of Spi, Holdings, Inc. Proxy 2± 10K
16: EX-27 Financial Data Schedule {Pre-XBRL/IDEA} 1 9K
EX-3.2 — Bylaws of Modtech Holdings, Inc
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EXHIBIT 3.2
BYLAWS
OF
MODTECH HOLDINGS, INC.
ARTICLE I
LAW, CERTIFICATE OF INCORPORATION AND BYLAWS
Section 1. These Bylaws are subject to the Certificate of Incorporation
of Modtech Holdings, Inc., the corporation. In these Bylaws, references to law,
the Certificate of Incorporation and Bylaws mean the law, the provisions of the
Certificate of Incorporation and the Bylaws as from time to time in effect.
ARTICLE II
STOCKHOLDERS
Section 1. Annual Meetings. The annual meeting of stockholders shall be
held at such place, on such date, and at such time as the Board of Directors
shall each year fix, which date shall be within thirteen months subsequent to
the later of the organization of the corporation or the last annual meeting of
stockholders, at which meeting they shall elect a Board of Directors and
transact such other business as may be required by law or these Bylaws or as may
properly come before the meeting.
Section 2. Special Meetings. A special meeting of the stockholders may
be called at any time by the Chairman of the Board, if any, or a majority of the
Board of Directors. A special meeting of the stockholders shall be called by the
Secretary, or in the case of the death, absence, incapacity or refusal of the
Secretary, by an Assistant Secretary or some other officer. Any such application
shall state the purpose or purposes of the proposed meeting. Any such call shall
state the place, date, hour, and purposes of the meeting.
Section 3. Place Of Meeting. All meetings of the stockholders for the
election of Directors or for any other purpose shall be held at such place
within or without the State of Delaware as may be determined from time to time
by the Chairman of the Board, if any, the President or the Board of Directors.
Any adjourned session of any meeting of the stockholders shall be held at the
place designated in the vote of adjournment.
Section 4. Notice Of Meetings. Except as otherwise provided by law, a
written notice of each meeting of stockholders stating the place, day and hour
thereof and, in the case of a special
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meeting, the purposes for which the meeting is called, shall be given not less
then ten (10) nor more than sixty (60) days before the meeting, to each
stockholder entitled to vote thereat, and to each stockholder who, by law, by
the Certificate of Incorporation or by these Bylaws, is entitled to notice, by
leaving such notice with him or at his residence or usual place of business, or
by depositing it in the United States mail, postage prepaid, and addressed to
such stockholder at his address as it appears in the records of the corporation.
Such notice shall be given by the Secretary, or by an officer or person
designated by the Board of Directors. As to any adjourned session of any meeting
of stockholders, notice of the adjourned meeting need not be given if the time
and place thereof are announced at the meeting at which the adjournment was
taken except that if the adjournment is for more than thirty (30) days or if
after the adjournment a new record date is set for the adjourned session, notice
of any such adjourned session of the meeting shall be given in the manner
heretofore described. No notice of any meeting of stockholders or any adjourned
session thereof need be given to a stockholder if a written waiver of notice,
executed before or after the meeting or such adjourned session by such
stockholder, is filed with the records of the meeting or if the stockholder
attends such meeting without objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
meeting of the stockholders or any adjourned session thereof need be specified
in any written waiver of notice.
Section 5. Quorum Of Stockholders. At any meeting of the stockholders a
quorum as to any matter shall consist of a majority of the votes entitled to be
cast on the matter, except where a larger quorum is required by law, by the
Certificate of Incorporation or by these Bylaws. Any meeting may be adjourned
from time to time by a majority of the votes properly cast upon the question,
whether or not a quorum is present. If a quorum is present at an original
meeting, a quorum need not be present at an adjourned session of that meeting.
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 6. Action By Vote. When a quorum is present at any meeting, a
plurality of the votes properly cast for election to any office shall elect to
such office and a majority of the votes properly cast upon any question other
than an election to an office shall decide the question, except when a larger
vote is required by law, by the Certificate of Incorporation or by these Bylaws.
No ballot shall be required for any election unless requested by a stockholder
present or represented at the meeting and entitled to vote in the election.
Section 7. Proxy Representation. Every stockholder may authorize another
person or persons to act for him by proxy in all matters in which a stockholder
is entitled to participate, whether by waiving notice of any meeting, objecting
to or voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by his
attorney-in-fact. No proxy shall be voted or acted upon after three years from
its date unless such proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it
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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 proxy may be
made irrevocable regardless of whether the interest with which it is coupled is
an interest in the stock itself or an interest in the corporation generally. The
authorization of a proxy may but need not be limited to specified action,
provided, however, that if a proxy limits its authorization to a meeting or
meetings of stockholders, unless otherwise specifically provided such proxy
shall entitle the holder thereof to vote at any adjourned session but shall not
be valid after the final adjournment thereof.
Section 8. Inspectors. The Directors or the person presiding at the
meeting may, and shall if required by applicable law, appoint one or more
inspectors of election and any substitute inspectors to act at the meeting or
any adjournment thereof. Each inspector, before entering upon the discharge of
his duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability. The inspectors, if any, shall determine the number of shares of
stock outstanding and the voting power of each, the shares of stock represented
at the meeting, the existence of a quorum, the validity and effect of proxies,
and shall receive votes, ballots or consents, hear and determine all challenges
and questions arising in connection with the right to vote, count and tabulate
all votes, ballots or consents, determine the result, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the inspectors shall make a
report in writing of any challenge, question or matter determined by them and
execute a certificate of any fact found by them.
Section 9. List Of Stockholders. 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 such meeting, arranged in alphabetical order
and showing the address of each stockholder and the number of shares registered
in his name. The stock ledger shall be the only evidence as to who are
stockholders entitled to examine such list or to vote in person or by proxy at
such meeting.
Section 10. Stockholder Proposals. At an annual meeting of stockholders,
only such business shall be conducted, and only such proposals shall be acted
upon, as shall have been properly brought before the annual meeting of
stockholders (i) by or at the direction of the Board of Directors or (ii) by a
stockholder of the corporation who complies with the procedures set forth in
this Section 10. For business or a proposal to be properly brought before an
annual meeting of stockholders by a stockholder, the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 120 days nor
more than 150 days prior to the first anniversary of the date of the Company's
notice of annual meeting provided with respect to the previous year's annual
meeting of stockholders; provided that if no annual meeting of stockholders was
held in the previous year or the date of the annual meeting of stockholders has
been changed to be more than 30 calendar days earlier than or 60 calendar days
after such anniversary, notice by the stockholder, to be timely, must be so
received not more than 90 days nor later than the later of (i) 60 days prior to
the annual meeting of stockholders or (ii) the close of business on the 10th day
following the date on which notice of the date of the meeting is given to
stockholders or made public, whichever first occurs.
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A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before an annual meeting of
stockholders (i) a description, in 500 words or less, of the business desired to
be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and address, as such information
appears on the Corporation's books, of the stockholder proposing such business
and any other stockholders known by such stockholder to be supporting such
proposal, (iii) the class and number of shares of the Corporation that are
beneficially owned by such stockholder and each other stockholder known by such
stockholder to be supporting such proposal on the date of such stockholder's
notice, (iv) a description, in 500 words or less, of any interest of the
stockholder in such proposal and (v) a representation that the stockholder is a
holder of record of stock of the Corporation and intends to appear in person or
by proxy at the meeting to present the proposal specified in the notice.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that any business or proposal was not properly brought
before the meeting in accordance with the procedures prescribed by this Section
10, and if he should so determine, he shall so declare to the meeting and any
such business not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing, nothing in this Section 10 shall be interpreted
or construed to require the inclusion of information about any such proposal in
any proxy statement distributed by, at the direction of, or on behalf of, the
Board of Directors.
Section 11. Nomination for Election. Nominations of persons for election
to the Board of Directors may be made at an annual meeting of stockholders or
special meeting of stockholders called by the Board of Directors for the purpose
of electing directors (i) by or at the direction of the Board of Directors or
(ii) by any stockholder of the Corporation entitled to vote for the election of
directors at such meeting who complies with the notice procedures set forth in
this Section 11. Such nomination, other than those made by or at the direction
of the Board shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 120 days nor more than 150 days prior to the first anniversary of the
date of the Company's notice of annual meeting provided with respect to the
previous year's annual meeting of stockholders; provided that if no annual
meeting of stockholders was held in the previous year or the date of the annual
meeting of stockholders has been changed to be more than 30 calendar days
earlier than or 60 calendar days after such anniversary, notice by the
stockholder, to be timely, must be so received not more than 90 days nor later
than the later of (i) 60 days prior to the annual meeting of stockholders or
(ii) the close of business on the 10th day following the date on which notice of
the date of the meeting is given to stockholders or made public, whichever first
occurs.
A stockholder's notice to the Secretary shall set forth (i) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director (a) the name, age, business address and residence address of such
person, (b) the principal occupation or employment of such person, (c) the class
and number of shares of the Corporation which are beneficially owned by such
person on the date of such stockholder's notice and (d) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for
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election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended, or any
successor statute thereto (including, without limitation, such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (ii) as to the stockholder giving notice (a) the name and
address, as such information appears on the Corporation's books, of such
stockholder and any other stockholders known by such stockholder to be
supporting such nominee(s), (b) the class and number of shares of the
Corporation which are beneficially owned by such stockholder and each other
stockholder known by such stockholder to be supporting such nominee(s) on the
date of such stockholders notice, (c) 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 nominate the
person or persons specified in the notice; and (iii) a description of all
arrangements or understandings between the stockholder and each nominee and
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder.
Subject to the rights, if any, of the holders of any series of Preferred
Stock then outstanding, no person shall be eligible for election as a director
of the Corporation unless nominated in accordance with the procedures set forth
in this Section 11. The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by this Section 11 and if he should so
determine, he shall so declare to the meeting and the defective nomination shall
be disregarded.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Number. The Board of Directors shall be seven (7) in number.
The number of directors may be fixed at any time by the affirmative vote of a
majority of the directors at a regular or special meeting called for that
purpose, provided, however, that no vote to decrease the number of the directors
of the Corporation shall shorten the term of any incumbent director.
Directors need not be stockholders.
Section 2. Tenure. Except as otherwise provided by law, by the
Certificate of Incorporation or by these Bylaws, each director shall hold office
until the next annual meeting and until his successor is elected and qualified,
or until he sooner dies, resigns, is removed or becomes disqualified.
Section 3. Powers. The business and affairs of the corporation shall be
managed by or under the direction of the Board of Directors who shall have and
may exercise all the powers of the corporation and do all such lawful acts and
things as are not by law, the Certificate of Incorporation or these Bylaws
directed or required to be exercised or done by the stockholders.
Section 4. Vacancies. Vacancies and any newly created directorships
resulting from any increase in the number of directors may be filled by vote of
the holders of the particular class or
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series of stock entitled to elect such director at a meeting called for the
purpose, or by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director, in each case elected by the particular
class or series of stock entitled to elect such directors. When one or more
directors shall resign from the Board, effective at a future date, a majority of
the directors then in office, including those who have resigned, who were
elected by the particular class or series of stock entitled to elect such
resigning director or directors shall have power to fill such vacancy or
vacancies, the vote or action by writing thereon to take effect when such
resignation or resignations shall become effective. The directors shall have and
may exercise all their powers notwithstanding the existence of one or more
vacancies in their number, subject to the Certificate of Incorporation, and to
the other provisions of these Bylaws, as to the number of directors required for
a quorum or for any vote or other actions.
Section 5. Committees. The Board of Directors may, by vote of a majority
of the whole Board, (a) designate, change the membership of or terminate the
existence of any committee or committees, each committee to consist of one or
more of the directors; (b) designate one or more directors as alternate members
of any such committee who may replace any absent or disqualified member at any
meeting of the committee; and (c) determine the extent to which each such
committee shall have and may exercise the powers of the Board of Directors in
the management of the business and affairs of the corporation, including the
power to authorize the seal of the corporation to be affixed to all papers which
require it and the power and authority to declare dividends or to authorize the
issuance of stock; excepting, however, such powers which by law, by the
Certificate of Incorporation or by these Bylaws they are prohibited from so
delegating. In the absence or disqualification of any member of such committee
and his alternate, if any, the member or members thereof present at any meeting
and not disqualified from voting, whether or not constituting a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Except as the
Board of Directors may otherwise determine, any committee may make rules for the
conduct of its business, but unless otherwise provided by the board or such
rules, its business shall be conducted as nearly as may be in the same manner as
is provided by these Bylaws for the conduct of business by the Board of
Directors. Each committee shall keep regular minutes of its meetings and report
the same to the Board of Directors upon request.
Section 6. Regular Meetings. Regular meetings of the Board of Directors
may be held without call or notice at such places within or outside of the State
of Delaware and at such times as the Board may from time to time determine;
provided, however, that notice of the first regular meeting following any such
determination shall be given to absent directors. A regular meeting of the
directors may be held without call or notice immediately after and at the same
place as the annual meeting of stockholders.
Section 7. Special Meetings. Special meetings of the Board of Directors
may be held at any time and at any place within or outside of the State of
Delaware designated in the notice of the meeting, when called by the Chairman of
the Board, if any, or by one-third or more in number of the directors,
reasonable notice thereof being given to each director by the Secretary or by
the Chairman of the Board, if any, or any one of the directors calling the
meeting.
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Section 8. Notice. It shall be reasonable and sufficient notice to a
director to send notice by mail at least forty-eight (48) hours or by telegram
at least twenty-four (24) hours before the meeting addressed to him at his usual
or last known business or residence address or to give notice to him in person
or by telephone or facsimile at least twenty-four (24) hours before the meeting.
Notice of a meeting need not be given to any director if a written waiver of
notice, executed by him before or after the meeting, is filed with the records
of the meeting, or to any director who attends the meeting without protesting
prior thereto or at its commencement the lack of notice to him. Neither notice
of a meeting nor a waiver of a notice need specify the purposes of the meeting.
Section 9. Quorum. Except as may be otherwise provided by law, by the
Certificate of Incorporation or by these Bylaws, at any meeting of the directors
a majority of the directors then in office shall constitute a quorum; a quorum
shall not in any case be less than one-third of the total number of directors
constituting the whole board. Any meeting may be adjourned from time to time by
a majority of the votes cast upon the question, whether or not a quorum is
present, and the meeting may be held as adjourned without further notice.
Section 10. Action By Vote. Except as may be otherwise provided by law,
by the Certificate of Incorporation or by these Bylaws, when a quorum is present
at any meeting the vote of a majority of the directors present shall be the act
of the Board of Directors.
Section 11. Action Without A Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors or a committee thereof may
be taken without a meeting if all the members of the Board or of such committee,
as the case may be, consent thereto in writing, and such writing or writings are
filed with the records of the meetings of the Board or of such committee. Such
consent shall be treated for all purposes as the act of the Board or of such
committee, as the case may be.
Section 12. Participation In Meetings By Conference Telephone. Members
of the Board of Directors, or any committee designated by such 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 or by any other means permitted
by law. Such participation shall constitute presence in person at such meeting.
Section 13. Compensation. In the discretion of the Board of Directors,
each director may be paid such fees for his services as director (including,
without limitation, in the form of cash compensation and stock options to
purchase common stock of the corporation) and be reimbursed for his reasonable
expenses incurred in the performance of his duties as director as the Board of
Directors from time to time may determine. Nothing contained in this section
shall be construed to preclude any director from serving the corporation in any
other capacity and receiving reasonable compensation therefor.
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ARTICLE IV
OFFICERS AND AGENTS
Section 1. Enumeration; Qualification. The officers of the corporation
shall be a President, a Secretary and such other officers, if any, as the Board
of Directors from time to time may in its discretion elect or appoint,
including, without limitation, a Chairman of the Board and one or more Vice
Presidents. The corporation may also have such agents, if any, as the Board of
Directors from time to time may in its discretion choose. Any officer may be but
none need be a director or stockholder. Any two or more offices may be held by
the same person. Any officer may be required by the Board of Directors to secure
the faithful performance of his duties to the corporation by giving bond in such
amount and with sureties or otherwise as the Board of Directors may determine.
Section 2. Powers. Subject to law, to the Certificate of Incorporation
and to the other provisions of these Bylaws, each officer shall have, in
addition to the duties and powers herein set forth, such duties and powers as
are commonly incident to his office and such additional duties and powers as the
Board of Directors may from time to time designate.
Section 3. Election. The officers may be elected by the Board of
Directors at their first meeting following the annual meeting of the
stockholders or at any other time. At any time or from time to time the
directors may delegate to any officer their power to elect or appoint any other
officer or any agents.
Section 4. Tenure. Each officer shall hold office at the pleasure of the
Board of Directors or other officers of the corporation authorized by the Board
of Directors until the first meeting of the Board of Directors following the
next annual meeting of the stockholders and until his respective successor is
chosen and qualified unless a shorter period shall have been specified by the
terms of his election or appointment, or in each case until he sooner dies,
resigns, is removed or becomes disqualified.
Section 5. Chairman Of The Board Of Directors, Chief Executive Officer
And Vice President. The Chairman of the Board, if any, shall have such duties
and powers as shall be designated from time to time by the Board of Directors.
Unless the Board of Directors otherwise specifies, the Chairman of the Board, or
if there is none the Chief Executive Officer, shall preside, or designate the
person who shall preside, at all meetings of the stockholders and of the Board
of Directors.
Unless the Board of Directors otherwise specifies, the Chief Executive
Officer, or, in his or her absence, the President, shall be the chief executive
officer of the corporation and shall have direct charge of all business
operations of the corporation and, subject to the control of the Directors,
shall have general charge and supervision of the business of the corporation.
8
Any Vice Presidents shall have such duties and powers as shall be set
forth in these Bylaws or as shall be designated from time to time by the Board
of Directors or by the officer or officers of the corporation authorized by the
Board of Directors.
Section 6. Chief Financial Officer. Unless the Board of Directors
otherwise specifies, the Chief Financial Officer of the corporation shall be in
charge of its funds and valuable papers, and shall have such other duties and
powers as may be designated from time to time by the Board of Directors or by
the Chief Executive Officer. If no Controller is elected, the Chief Financial
Officer shall, unless the Board of Directors otherwise specifies, also have the
duties and powers of the Controller.
Section 7. Controller And Assistant Controllers. If a controller is
elected, he shall, unless the Board of Directors otherwise specifies, be the
Chief Accounting Officer of the corporation and be in charge of its books of
account and accounting records, and of its accounting procedures. He shall have
such other duties and powers as may be designated from time to time by the Board
of Directors, the President or the Chief Executive Officer.
Any Assistant Controller shall have such duties and powers as shall be
designated from time to time by the Board of Directors, the President, or the
Controller.
Section 8. Secretary And Assistant Secretaries. The Secretary shall
record all proceedings of the stockholders, of the Board of Directors and of
committees of the Board of Directors in a book or series of books to be kept
therefor and shall file therein all actions by written consent of stockholders
or directors. In the absence of the Secretary from any meeting, an Assistant
Secretary, or if there be none or he is absent, a temporary Secretary chosen at
the meeting, shall record the proceedings thereof. Unless a transfer agent has
been appointed the Secretary shall keep or cause to be kept the stock and
transfer records of the corporation, which shall contain the names and record
addresses of all stockholders and the number of shares registered in the name of
each stockholder. He shall have such other duties and powers as may from time to
time be designated by the Board of Directors or the President.
Any Assistant Secretaries shall have such duties and powers as shall be
designated from time to time by the Board of Directors, the President or the
Secretary.
ARTICLE V
RESIGNATIONS AND REMOVALS
Section 1. Any director or officer may resign at any time by delivering
his resignation in writing to the Chairman of the Board, if any, the President,
or the Secretary or to a meeting of the Board of Directors. Such resignation
shall be effective upon receipt unless specified to be effective at some other
time, and without in either case the necessity of its being accepted unless the
resignation shall so state. Except as may be otherwise provided by law, by the
Certificate of Incorporation or by these Bylaws, a director (including persons
elected by stockholders or
9
directors to fill vacancies) may be removed from office for cause only. The
Board of Directors may at any time terminate or modify the authority of any
agent.
ARTICLE VI
INDEMNIFICATION
Section 1. Each person who was or is made a party to, or is threatened
to be made a party to, or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding"), 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, officer or employee of the Corporation or
is or was serving at the request of the Corporation as a director, officer or
employee of another corporation, or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
shall be indemnified and held harmless by the Corporation to the fullest extent
permitted by the Delaware General Corporation Law, against all expenses,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes and penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith, and such
indemnification shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that the Corporation shall indemnify any such
person seeking indemnity in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
Section 2. The Corporation shall pay all expenses (including attorneys'
fees) incurred by such a director or officer in defending any such proceeding as
they are incurred in advance of its final disposition; provided, however, that
if the Delaware General Corporation Law then so requires, the payment of such
expenses incurred by such a director or officer in advance of the final
disposition of such proceeding shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it should be determined ultimately that such
director or officer is not entitled to be indemnified under this Article VI or
otherwise; and provided, further, that the Corporation shall not be required to
advance any expenses to a person against whom the Corporation directly brings a
claim, in a proceeding alleging that such person has breached his or her duty of
loyalty to the Corporation, committed an act or omission not in good faith or
that involves intentional misconduct or a knowing violation of law, or derived
an improper personal benefit from a transaction.
Section 3. The rights conferred on any person in this Article VI shall
not be exclusive of any other right that such person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation, Bylaw,
agreement, vote or consent of stockholders or disinterested directors, or
otherwise. Additionally, nothing in this Article VI shall limit the ability of
the Corporation, in its discretion, to indemnify or advance expenses to persons
whom the Corporation is not obligated to indemnify or advance expenses pursuant
to this Article VI.
10
Section 4. The Board of Directors is authorized to cause the
Corporation to enter into indemnification contracts with any director, officer,
employee or agent of the Corporation, or any person serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, including
employee benefit plans, providing indemnification rights to such person. Such
rights may be greater than those provided in this Article VI .
Section 5. Any amendment, repeal or modification of any provision of
this Article VI shall be prospective only, and shall not adversely affect any
right or protection conferred on a person pursuant to this Article VI and
existing at the time of such amendment, repeal or modification.
ARTICLE VII
CAPITAL STOCK
Section 1. Stock Certificates. Each stockholder shall be entitled to a
certificate stating the number and the class and the designation of the series,
if any, of the shares held by him, in such form as shall, in conformity to law,
the Certificate of Incorporation and the Bylaws, be prescribed from time to time
by the Board of Directors. Such certificate shall be signed by the Chairman or
Vice Chairman of the Board, if any, or the President or a Vice President and by
the Chief Financial Officer or by the Secretary or an Assistant Secretary. Any
of or all the signatures on the certificate may be a facsimile. In case an
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed on such 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 time of its issue.
Section 2. Loss Of Certificates. In the case of the alleged theft, loss,
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms, including receipt of a bond
sufficient to indemnify the corporation against any claim on account thereof, as
the Board of Directors may prescribe.
ARTICLE VIII
TRANSFER OF SHARES OF STOCK
Section 1. Transfer On Books. Subject to the restrictions, if any,
related to such shares of the corporation; shares of stock may be transferred on
the books of the corporation by the surrender to the corporation or its transfer
agent of the certificate therefor properly endorsed or accompanied by a written
assignment and power of attorney properly executed, with necessary transfer
stamps affixed, and with such proof of the authenticity of signature as the
Board of Directors or the transfer agent of the corporation may reasonably
require. Except as may be otherwise required by law, by the Certificate of
Incorporation or by these Bylaws, the
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corporation shall be entitled to treat the record holder of stock as shown on
its books as the owner of such stock for all purposes, including the payment of
dividends and the right to receive notice and to vote or to give any consent
with respect thereto and to be held liable for such calls and assessments, if
any, as may lawfully be made thereon, regardless of any transfer, pledge or
other disposition of such stock until the shares have been properly transferred
on the books of the corporation.
It shall be the duty of each stockholder to notify the corporation of
his post office address.
Section 2. Record Date. 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 (60) nor less than ten (10) days before the date of such
meeting. If no such record date is fixed by the Board of Directors, the record
date for determining the 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. 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.
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 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 (60) days prior to such payment, exercise or other action. If no
such 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.
ARTICLE IX
CORPORATE SEAL
Section 1. Subject to alteration by the Board of Directors, the seal of
the corporation shall consist of a flat-faced circular die with the word
"Delaware" and the name of the corporation cut or engraved thereon, together
with such other words, dates or images as may be approved from time to time by
the Board of Directors.
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ARTICLE X
EXECUTION OF PAPERS
Section 1. Except as the Board of Directors may generally or in
particular cases authorize the execution thereof in some other manner, all
deeds, leases, transfers, contracts, bonds, notes, checks, drafts or other
obligations made, accepted or endorsed by the corporation shall be signed by the
Chairman of the Board, if any, the President, or a Vice President.
ARTICLE XI
FISCAL YEAR
Section 1. The fiscal year of the corporation shall end on December 31.
ARTICLE XII
AMENDMENTS
Section 1. These Bylaws may be adopted, amended or repealed by vote of a
majority of the directors then in office or by vote of a majority of the voting
power of the stock outstanding and entitled to vote. Any Bylaw, whether adopted,
amended or repealed by the stockholders or directors, may be amended or
reinstated by the stockholders or the directors.
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