Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 145 640K
2: EX-2.1-1 Plan of Acquisition, Reorganization, Arrangement, 6 26K
Liquidation or Succession
3: EX-2.1-2 Plan of Acquisition, Reorganization, Arrangement, 1 11K
Liquidation or Succession
4: EX-3.1 Articles of Incorporation/Organization or By-Laws 12 40K
5: EX-3.2 Articles of Incorporation/Organization or By-Laws 18 72K
6: EX-4.2 Instrument Defining the Rights of Security Holders 13 49K
7: EX-4.3 Instrument Defining the Rights of Security Holders 15 52K
8: EX-4.4 Instrument Defining the Rights of Security Holders 15 53K
9: EX-10.1 Material Contract 9 35K
18: EX-10.13 Material Contract 4 27K
19: EX-10.14 Material Contract 5 31K
20: EX-10.15 Material Contract 5 31K
21: EX-10.16 Material Contract 5 31K
22: EX-10.17 Material Contract 11 50K
23: EX-10.18-1 Material Contract 20 85K
10: EX-10.2 Material Contract 9 36K
24: EX-10.20 Material Contract 10 40K
25: EX-10.21 Material Contract 4 27K
26: EX-10.22 Material Contract 24 106K
27: EX-10.23 Material Contract 7 40K
28: EX-10.24 Material Contract 11 45K
11: EX-10.3-1 Material Contract 8 38K
12: EX-10.3-2 Material Contract 1 11K
13: EX-10.4 Material Contract 9 37K
14: EX-10.5 Material Contract 8 34K
15: EX-10.6 Material Contract 9 36K
16: EX-10.8-1 Material Contract 20 90K
17: EX-10.8-2 Material Contract 3 18K
29: EX-21.1 Subsidiaries of the Registrant 1 9K
30: EX-23.1 Consent of Experts or Counsel 1 10K
31: EX-27.1 Financial Data Schedule (Pre-XBRL) 2 13K
EX-3.2 — Articles of Incorporation/Organization or By-Laws
Exhibit Table of Contents
AMENDED AND RESTATED BYLAWS
OF
DIGITALCONVERGENCE.:COM INC.
These Bylaws are subject to, and governed by, the General Corporation
Law of the State of Delaware (the "Delaware General Corporation Law") and the
certificate of incorporation (as the same may be amended and restated from time
to time) of DigitalConvergence.:Com Inc., a Delaware corporation (the
"Corporation"). In the event of a direct conflict between the provisions of
these Bylaws and the mandatory provisions of the Delaware General Corporation
Law or the provisions of the certificate of incorporation of the Corporation,
such provisions of the Delaware General Corporation Law or the certificate of
incorporation of the Corporation, as the case may be, will be controlling.
ARTICLE I
OFFICES
Section 1. DELAWARE OFFICE. The office of the Corporation within the
State of Delaware shall be in the City of Dover, County of Kent.
Section 2. OTHER OFFICES. The Corporation may also have an office or
offices and keep the books and records of the Corporation, except as may
otherwise be required by law, in such other place or places, either within or
without the State of Delaware, as the Board of Directors of the Corporation (the
"Board") may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of stockholders of the
Corporation shall be held at the office of the Corporation in the State of
Delaware or at such other place, within or without the State of Delaware, as may
from time to time be fixed by the Board or specified or fixed in the respective
notices or waivers of notice thereof.
Section 2. ANNUAL MEETINGS. The annual meeting of stockholders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before the meeting shall be held annually on such
date and at such time as may be fixed by the Board. Except as otherwise
permitted by law, no stockholder of the Corporation shall require the Board to
call an annual meeting of stockholders of the Corporation. At such meeting, the
stockholders shall elect directors and transact such other business as may
properly be brought before the meeting.
Section 3. SPECIAL MEETINGS. Special meetings of stockholders, unless
otherwise provided by law, may be called at any time only by the Chairman of the
Board, the Chief Executive Officer, the President, or the Board pursuant to a
resolution adopted by a majority of the then authorized number of directors (as
determined in accordance with Section 2 of Article III of these Bylaws).
Section 4. NOTICE. Written or printed notice stating the place, day,
and time of each meeting of the stockholders and, in case of a special meeting,
the purpose or purposes for which the meeting is called shall be delivered not
less than ten (10) nor more than sixty (60) days before the date of the meeting,
either personally or by mail, by or at the direction of the Chief Executive
Officer, the President, the Secretary, or the officer or person(s) calling the
meeting, to each stockholder of record entitled to vote at such meeting. If such
notice is to be sent by mail, it shall be directed to each stockholder at his
address as it appears on the records of the Corporation, unless he shall have
filed with the Secretary of the Corporation a written request that notices to
him be mailed to some other address, in which case it shall be directed to him
at such other address. Notice of any meeting of stockholders shall not be
required to be given to any stockholder who shall attend such meeting in person
or by proxy and shall not, at the beginning of such meeting, object to the
transaction of any business because the meeting is not lawfully called or
convened, or who shall, either before or after the meeting, submit a signed
waiver of notice, in person or by proxy.
Section 5. NOTICE OF STOCKHOLDER BUSINESS AT ANNUAL MEETING. (a) At an
annual meeting of the stockholders, only such business shall be conducted as
shall have been brought before the meeting pursuant to the Corporation's notice
of meeting, by or at the direction of a majority of the members of the Board, or
by any stockholder of the Corporation who is a stockholder of record at the time
of giving of notice provided for in this Bylaw, who shall be entitled to vote at
such meeting, and who complies with the notice procedures set forth in paragraph
(b) of this Bylaw.
(b) For business to be properly brought before an annual
meeting by a stockholder pursuant to clause (iii) of paragraph (a) of this
Bylaw, 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 ninety (90) days nor more than one hundred twenty
(120) days prior to the first anniversary of the preceding year's annual
meeting; PROVIDED, HOWEVER, that in the event that the date of the meeting is
changed by more than thirty (30) days from such anniversary date, notice by the
stockholder to be timely must be received no later than the close of business on
the tenth day following the earlier of the day on which notice of the date of
the meeting was mailed or public disclosure of the meeting date was made. A
stockholder's notice to the Secretary with respect to business to be brought at
an annual meeting shall set forth (1) the nature of the proposed business with
reasonable particularity, including the exact text of any proposal to be
presented for adoption, and the reasons for conducting that business at the
annual meeting, (2) with respect to each such stockholder, that stockholder's
name and address (as they appear on the records of the Corporation), business
address and telephone number, residence address and telephone number, and the
number of shares of each class of capital
-2-
stock of the Corporation beneficially owned by that stockholder and (3) any
interest of the stockholder in the proposed business.
(c) Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Bylaw. The chairman of an
annual meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting and in accordance with
the procedures prescribed by these Bylaws, 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. Nothing in this Bylaw shall relieve
a stockholder who proposes to conduct business at an annual meeting from
complying with all applicable requirements, if any, of the Securities Exchange
Act of 1934 (the "Exchange Act"), and the rules and regulations thereunder.
Section 6. QUORUM. At each meeting of stockholders of the Corporation,
the holders of a majority of the shares of capital stock of the Corporation
issued and outstanding and entitled to vote shall be present or represented by
proxy to constitute a quorum for the transaction of business, except as
otherwise provided by law.
Section 7. ADJOURNMENTS. In the absence of a quorum at any meeting of
stockholders or any adjournment or adjournments thereof, the chairman of the
meeting or a majority in interest of those present or represented by proxy and
entitled to vote may adjourn the meeting from time to tithe until a quorum shall
be present or represented by proxy. At any such adjourned meeting at which a
quorum shall be present or represented by proxy, any business may be transacted
which might have been transacted at the meeting as originally called if a quorum
had been present or represented by proxy thereat.
Section 8. ORDER OF BUSINESS. The order of business at all meetings of
stockholders shall be as determined by the chairman of the meeting.
Section 9. VOTING. Except as otherwise provided in the Certificate of
Incorporation, at each meeting of stockholders, every stockholder of the
Corporation shall be entitled to one vote for every share of capital stock
standing in his name on the stock records of the Corporation (i) at the time
fixed pursuant to Section 6 of Article VII of these Bylaws as the record date
for the determination of stockholders entitled to vote at such meeting, or (ii)
if no such record date shall have been fixed, then at the close of business on
the date next preceding the day on which notice thereof shall be given. At each
meeting of stockholders, all matters (except in cases where a larger vote is
required by law or by the certificate of incorporation of the Corporation or
these Bylaws) shall be decided by a majority of the votes cast at such meeting
by the holders of shares present or represented by proxy and entitled to vote
thereon, a quorum being present.
Section 10. INSPECTORS. For each election of directors by the
stockholders and in any case in which it shall be advisable, in the opinion of
the Board, that the voting upon any other matter shall be conducted by
inspectors of election, the Board shall appoint two inspectors of election. If,
for any
-3-
such election of directors or the voting upon any such other matter, any
inspector appointed by the Board shall be unwilling or unable to serve, or if
the Board shall fail to appoint inspectors, the chairman of the meeting shall
appoint the necessary inspector or inspectors. The inspectors so appointed,
before entering upon the discharge of their duties, shall be sworn faithfully to
execute the duties of inspectors with strict impartiality, and according to the
best of their ability, and the oath so taken shall be subscribed by them. Such
inspectors shall determine the number of shares outstanding and the voting power
of each, the number of shares represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive votes or ballots,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes or ballots, 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 chairman of the meeting or any stockholder
entitled to vote thereat, the inspectors shall make a report in writing of any
challenge, question or matter determined by them and shall execute a certificate
of any fact found by them. No director or candidate for the office of director
shall act as an inspector of election of directors. Inspectors need not be
stockholders.
Section 11. CERTAIN RULES OF PROCEDURE RELATING TO STOCKHOLDER
MEETINGS. All stockholder meetings, annual or special, shall be governed in
accordance with the following rules:
(a) Only stockholders of record will be permitted to
present motions from the floor at any meeting of stockholders.
(b) The chairman of the meeting shall preside over and
conduct the meeting in a fair and reasonable manner, and all questions of
procedure or conduct of the meeting shall be decided solely by the chairman of
the meeting. The chairman of the meeting shall have all power and authority
vested in a presiding officer by law or practice to conduct an orderly meeting.
Among other things, the chairman of the meeting shall have the power to adjourn
or recess the meeting, to silence or expel persons to ensure the orderly conduct
of the meeting, to declare motions or persons out of order, to prescribe rules
of conduct and an agenda for the meeting, to impose reasonable time limits on
questions and remarks by any stockholder, to limit the number of questions a
stockholder may ask, to limit the nature of questions and comments to one
subject matter at a time as dictated by any agenda for the meeting, to limit the
number of speakers or persons addressing the chairman of the meeting or the
meeting, to determine when the polls shall be closed, to limit the attendance at
the meeting to stockholders of record, beneficial owners of stock who present
letters from the record holders confirming their status as beneficial owners,
and the proxies of such record and beneficial holders, and to limit the number
of proxies a stockholder may name.
Section 12. REQUESTS FOR STOCKHOLDER LIST AND CORPORATION RECORDS.
Stockholders shall have those rights afforded under the General Corporation Law
of the State of Delaware to inspect a list of stockholders and other related
records and make copies or extracts therefrom. Such request shall be in writing
in compliance with Section 220 of the General Corporation Law of the State of
Delaware. In addition, any stockholder making such a request must agree that any
information so inspected, copied or extracted by the stockholder shall be kept
confidential, that any copies or
-4-
extracts of such information shall be returned to the Corporation and that such
information shall only be used for the purpose stated in the request.
Information so requested shall be made available for inspecting, copying or
extracting at the principal executive offices of the Corporation. Each
stockholder desiring a photostatic or other duplicate copies of any of such
information requested shall make arrangements to provide such duplicating or
other equipment necessary in the city where the Corporation's principal
executive offices are located. Alternative arrangements with respect to this
Section 12 may be permitted in the discretion of the Chief Executive Officer of
the Corporation or by vote of the Board.
ARTICLE III
DIRECTORS
Section 1. POWERS. The business of the Corporation shall be managed
under the direction of the Board. The Board may exercise all such authority and
powers of the Corporation and do all such lawful acts and things as are not by
law or otherwise directed or required to be exercised or done by the
stockholders.
Section 2. NUMBER, ELECTION AND TERMS. The authorized number of
directors may be determined from time to time by vote of a majority of the then
authorized number of directors; provided however, that such number shall not be
less than one or more than nine. No decrease in the number of directors
constituting the Board shall shorten the term of any incumbent director.
Section 3. NOMINATION OF DIRECTOR CANDIDATES. (a) Only persons who are
nominated in accordance with the procedures set forth in these Bylaws shall be
eligible to serve as directors. Nominations of persons for election to the Board
may be made at a meeting of stockholders (i) by or at the direction of the Board
or (ii) by any stockholder of the Corporation who is a stockholder of record at
the time of giving notice provided for in this Bylaw, who shall be entitled to
vote for the election of directors at the meeting and who complies with the
notice procedures set forth in this Bylaw.
(b) Nominations by stockholders shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation (i) in the case of an annual
meeting, not less than ninety (90) days nor more than one hundred twenty (120)
days prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is
changed by more than thirty (30) days from such anniversary date, notice by the
stockholder to be timely must be so received not later than the close of
business on the 10th day following the earlier of the day on which notice of the
date of the meeting was mailed or public disclosure of the date of the meeting
was made, and (ii) in the case of a special meeting at which directors are to be
elected, not later than the close of business on the 10th day following the
earlier of the day on which notice of the date of the meeting was mailed or
public disclosure of the date of the meeting was made. Such stockholder's notice
shall set forth (1) as to
-5-
each person whom the stockholder proposes to nominate for election or reelection
as a director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Exchange Act
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); (2) as to the stockholder
giving the notice (A) the name and address, as they appear on the Corporation's
books, of such stockholder and (B) the class and number of shares of the
Corporation which are beneficially owned by such stockholder and also which are
owned of record by such stockholder; and (3) as to the beneficial owner, if any,
on whose behalf the nomination is made, (A) the name and address of such person
and (B) the class and number of shares of the Corporation which are beneficially
owned by such person. At the request of the Board, any person nominated by the
Board for election as a director shall furnish the Secretary of the Corporation
that information required to be set forth in the stockholder's notice of
nomination which pertains to the nominee. Notwithstanding any of the notice
provisions stated in this paragraph to the contrary, in the event that the
number of directors to be elected to the Board is increased and there is no
public disclosure naming all of the nominees for director or specifying the size
of the increased Board made by the Corporation at least one hundred (100) days
prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Bylaw shall also be considered timely, but
only with respect to nominees for any new positions created by such increase, if
it shall be delivered to the principal executive offices of the Corporation not
later than the close of business on the 10th day following the day on which such
public disclosure is first made by the Corporation.
(c) Notwithstanding anything in these Bylaws to the
contrary, no person shall be eligible to serve as a director of the Corporation
unless nominated in accordance with the procedures set forth in this Bylaw. The
chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by these Bylaws, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded. Nothing is
this Bylaw shall relieve stockholders from complying with all applicable
requirements, if any, of the Exchange Act, and the rules and regulations
thereunder.
Section 4. ELECTION. At each meeting of stockholders for the election
of directors at which a quorum is present, the persons receiving a plurality of
the votes cast shall be elected directors.
Section 5. PLACE OF MEETINGS. Meetings of the Board shall be held at
the Corporation's office in the State of Delaware or at such other place, within
or without such state, as the Board may from time to time determine or as shall
be specified or fixed in the notice or waiver of notice of any such meeting.
Section 6. REGULAR MEETINGS. Regular meetings of the Board shall be
held in accordance with a yearly meeting schedule as determined by the Board; or
such meetings may be held on such
-6-
other days and at such other times as the Board may from time to time determine.
Notice of regular meetings of the Board need not be given except as otherwise
required by these Bylaws.
Section 7. SPECIAL MEETINGS. Special meetings of the Board may be
called by the Chief Executive Officer and shall be called by the Secretary at
the request of any two of the other directors.
Section 8. NOTICE OF MEETINGS. Notice of each special meeting of the
Board (and of each regular meeting for which notice thereof shall be required),
stating the time, place and purposes thereof; shall be mailed to each director,
addressed to him at his residence or usual place of business, or shall be sent
to him by telex, cable or telegram so addressed, or shall be given personally or
by telephone, on twenty-four hours notice, or such shorter notice as the person
or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 9. QUORUM AND MANNER OF ACTS. The presence of at least a
majority of the authorized number of directors shall be necessary and sufficient
to constitute a quorum for the transaction of business at any meeting of the
Board or a committee thereof. If a quorum shall not be present at any meeting of
the Board or a committee thereof, a majority of the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present. Except where a
different vote is required by law the act of a majority of the directors present
at any meeting at which a quorum shall be present shall be the act of the Board.
Any action required or permitted to be taken by the Board may be taken without a
meeting if all the directors consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consents thereto by the
directors shall be filed with the minutes of the proceedings of the Board. Any
one or more directors may participate in any meeting of the Board by means of a
conference telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time. Participation
by such means shall constitute presence in person at a meeting of the Board.
Section 10. RESIGNATION. Any director may resign at any time by giving
written notice to the Corporation; provided, however, that written notice to the
Board, the Chairman of the Board, the Chief Executive Officer or the Secretary
shall be deemed to constitute notice to the Corporation. Such resignation shall
take effect upon receipt of such notice or at any later time specified therein
and, unless otherwise specified therein, acceptance of such resignation shall
not be necessary to make it effective.
Section 11. COMPENSATION OF DIRECTORS. The Board may provide for the
payment to any of the directors of a specified amount for services as a director
or member of a committee of the Board, or of a specified amount for attendance
at each regular or special Board meeting or committee meeting, or of both, and
all directors shall be reimbursed for expenses of attendance at any such
meeting; PROVIDED, HOWEVER, that nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
-7-
Section 12. VACANCIES, ADDITIONAL DIRECTORS AND REMOVAL FROM OFFICE.
Vacancies in the Board resulting from death, resignation, retirement,
disqualification, removal from office or other cause and newly-created
directorships resulting from any increase in the authorized number of directors
shall be filled by a majority vote of the remaining directors then in office,
though less than a quorum, or by the sole remaining director, and each director
so chosen shall receive the classification of the vacant directorship to which
he or she has been appointed or, if it is a newly created directorship, shall
receive the classification that at least a majority of the Board designates and
shall hold office until the first meeting of stockholders held after his
election for the purpose of electing directors of that classification and until
his or her successor is elected and qualified or until his or her earlier death,
resignation or removal from office. If there are no directors in office (or
where holders of any class or classes or series thereof are entitled to elect
one or more directors, there are no directors of such class in office), an
election of directors may be held in the manner provided by statute. Any
director may be removed, but only for "cause" as defined in the certificate of
incorporation of the Corporation, by the holders of a majority of the shares
then entitled to vote at an election of directors at any special meeting of
stockholders duly called and held for such purpose.
Section 13. ACTION WITHOUT MEETING. Unless otherwise restricted by the
certificate of incorporation of the Corporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board, or of any
committee thereof as provided in Article IV of these Bylaws, may be taken
without a meeting, if a written consent thereto is signed by all members of the
Board or of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or committee.
Section 14. CORPORATE GOVERNANCE.
(a) Without the approval of the Board of the Corporation,
the Corporation agrees that it will not undertake any of the following actions:
(i) issue any additional shares of common stock
of the Corporation or any additional instruments, options or rights
entitling the holder thereof to acquire shares of common stock;
(ii) merge, consolidate, reorganize or sell all
or substantially all of the assets of the Corporation on a consolidated
basis;
(iii) fail to keep accurate books and records in
accordance with generally accepted accounting principles; or
(iv) approve any annual or long term strategic
plan, annual operating budget or capital expenditure budget or policy.
(b) The Board shall annually appoint an Audit Committee,
Compensation Committee and such other committees as the Board determines
necessary or advisable, the members
-8-
of which shall be appointed in accordance with the provisions of Article IV of
these Bylaws. The Board shall establish and adopt a charter for each such
committee.
ARTICLE IV
COMMITTEES OF THE BOARD
Section 1. DESIGNATION, POWERS AND NAME. The Board may, by resolution
passed by a majority of the whole Board, designate one or more committees,
including, if they shall so determine, an Executive Committee, each such
committee to consist of one or more of the directors of the Corporation. If an
Audit Committee or a Compensation Committee is designated, each such committee
shall consist of one or more directors of the Corporation who are not employees
of the Corporation. The committee shall have and may exercise such of the powers
of the Board in the management of the business and affairs of the Corporation as
may be provided in such resolution; PROVIDED, HOWEVER, that no such committee
shall have the power or authority in reference to amending the certificate of
incorporation of the Corporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board, fix the designations and any of the preferences
or rights of such shares relating to dividends, redemption, dissolution, any
distribution of assets of the Corporation or the conversion into, or the
exchange of such shares for, shares of any other class or classes or any other
series of the same or any other class or classes of stock of the Corporation or
fix the number of shares of any series of stock or authorize the increase or
decrease of the shares of any series), 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 a
dissolution, or amending the Bylaws of the Corporation; and, provided further,
that, unless the resolution establishing the committee expressly so provides, no
such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. The committee may authorize the seal of the
Corporation to be affixed to all papers which may require it. The Board may
designate one or more directors as alternate member(s) of any committee, who may
replace any absent or disqualified member at any meeting.
Section 2. MINUTES. Each committee of directors shall keep regular
minutes of its proceedings and report the same to the Board when required.
Section 3. COMPENSATION. Members of special or standing committees may
be allowed compensation for attending committee meetings, if the Board shall so
determine.
Section 4. ACTION BY CONSENT; PARTICIPATION BY TELEPHONE OR SIMILAR
EQUIPMENT. Unless the Board shall otherwise provide, any action required or
permitted to be taken by any committee may be taken without a meeting if all
members of the committee consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consents thereto by the
members of the committee shall be filed with the minutes of the proceedings of
the committee.
-9-
Unless the Board shall otherwise provide, any one or more members of any such
committee may participate in any meeting of the committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation by such means
shall constitute presence in person at a meeting of the committee.
Section 5. CHANGES IN COMMITTEES; RESIGNATIONS; REMOVALS. The Board
shall have power, by the affirmative vote of a majority of the authorized number
of directors, at any time to change the members of, to fill vacancies in, and to
discharge any committee of the Board. Any member of any such committee may
resign at any time by giving notice to the Corporation, provided, however, that
notice to the Board, the Chairman of the Board, the Chief Executive Officer, the
Chairman of such committee or the Secretary shall be deemed to constitute notice
to the Corporation. Such resignation shall take effect upon receipt of such
notice or at any later time specified therein; and, unless otherwise specified
therein, acceptance of such resignation shall not be necessary to make it
effective. Any member of any such committee may be removed at any time, either
with or without cause by the affirmative vote of a majority of the authorized
number of directors at any meeting of the Board called for that purpose.
ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the Corporation shall be a
Chairman of the Board (if such office is created by resolution adopted by the
Board), a Chief Executive Officer, a President, one or more Vice Presidents (any
one or more of whom may be designated Executive Vice President or Senior Vice
President), a Secretary and a Treasurer. The Board may appoint such other
officers and agents, including Assistant Vice Presidents, Assistant Secretaries
and Assistant Treasurers, as it shall deem necessary, who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined by the Board. Any two or more offices, other than the
offices of President and Secretary, may be held by the same person. No officer
shall execute, acknowledge, verify or countersign any instrument on behalf of
the Corporation in more than one capacity, if such instrument is required by
law, by these Bylaws or by any act of the Corporation to be executed,
acknowledged, verified or countersigned by two or more officers. The Chairman of
the Board shall be elected from among the directors. With the foregoing
exceptions, none of the other officers need be a director, and none of the
officers need be a stockholder of the Corporation unless otherwise required by
the certificate of incorporation of the Corporation.
Section 2. ELECTION AND TERM OF OFFICE. The officers of the Corporation
shall be elected annually by the Board at its first regular meeting held after
the annual meeting of stockholders or as soon thereafter as conveniently
practicable. Each officer shall hold office until his successor shall have been
elected or appointed and shall have qualified or until his death or the
effective date of his resignation or removal, or until he shall cease to be a
director in the case of the Chairman of the Board.
-10-
Section 3. REMOVAL AND RESIGNATION. Any officer or agent elected or
appointed by the Board may be removed without cause by the affirmative vote of a
majority of the Board whenever, in its judgment, the best interests of the
Corporation shall be served thereby, but such removal shall be without prejudice
to the contractual rights, if any, of the person so removed. Any officer may
resign at any time by giving written notice to the Corporation. Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein, and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 4. VACANCIES. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise, may be filled by the
Board for the unexpired portion of the term.
Section 5. SALARIES. The salaries of all officers and agents of the
Corporation shall be fixed by the Board or pursuant to its direction; and no
officer shall be prevented from receiving such salary by reason of his also
being a director.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board (if such
office is created by resolution adopted by the Board and who may also hold the
office of President or other offices) shall have such duties as the Board may
prescribe. In the Chairman's absence, such duties shall be attended to by the
Chief Executive Officer.
Section 7. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
preside at all meetings of the Board and at all meetings of the stockholders.
The Chief Executive Officer shall, subject to the Board, have general executive
charge, management, and control of the properties and operations of the
Corporation in the ordinary course of its business, with all such powers with
respect to such properties and operations as may be reasonably incident to such
responsibilities. The Chief Executive Officer shall have the power to appoint
and remove subordinate officers, agents and employees, including Assistant
Secretaries and Assistant Treasurers, except that the President may not remove
those elected or appointed by the Board. The Chief Executive Officer shall keep
the Board and the Executive Committee (if any) fully informed and shall consult
them concerning the business of the Corporation. The Chief Executive Officer may
sign, with the Secretary or another officer of the Corporation thereunto
authorized by the Board, certificates for shares of the Corporation and any
deeds, bonds, mortgages, contracts, checks, notes, drafts or other instruments,
the issue or execution of which shall have been authorized by resolution of the
Board, except in cases where the signing and execution thereof has been
expressly delegated by these Bylaws or by the Board to some other officer or
agent of the Corporation, or shall be required by law to be otherwise executed.
The Chief Executive Officer shall vote, or give a proxy to any other officer of
the Corporation to vote, all shares of stock of any other corporation standing
in the name of the Corporation. If the Board has not elected a Chairman of the
Board or in the absence, inability to act or refusal to act of the Chairman of
the Board, the Chief Executive Officer shall exercise all of the powers and
discharge all of the duties of the Chairman of the Board. As between the
Corporation and third parties, any action taken by the Chief Executive Officer
in the performance of the duties of the Chairman of the Board shall be
conclusive evidence that there is no Chairman of the Board or that the Chairman
of the Board is absent or unable to act.
-11-
Section 8. PRESIDENT. The President shall perform such duties and
exercise such powers as usually appertain to such title and such other duties as
may be prescribed by the stockholders, the Board or the Executive Committee (if
any) from time to time. In the absence of the Chief Executive Officer, or in the
event of his inability or refusal to act, the President shall perform the duties
and exercise the powers of the Chief Executive Officer.
Section 9. VICE PRESIDENTS. In the absence of the President, or in the
event of his inability or refusal to act, the Executive Vice President (or in
the event there shall be no Vice President designated Executive Vice President,
any Vice President designated by the Board) shall perform the duties and
exercise the powers of the President. Any Vice President may sign, with the
Secretary or Assistant Secretary, certificates for shares of the Corporation and
any deeds, bonds, mortgages, contracts, checks, notes, drafts or other
instruments, the issue or execution of which shall have been authorized by
resolution of the Board, except in cases where the signing and execution thereof
has been expressly delegated by these Bylaws or by the Board to some other
officer or agent of the Corporation, or shall be required by law to be otherwise
executed. The Vice Presidents shall perform such other duties as from time to
time may be assigned to them by the Chairman of the Board (if any), the Chief
Executive Officer, the President, the Board or the Executive Committee (if any).
Section 10. SECRETARY. The Secretary shall (a) record the proceedings
of the meetings of the stockholders, the Board and committees of directors in
the permanent minute books of the Corporation kept for that purpose; (b) see
that all notices are duly given in accordance with the provisions of these
Bylaws and as required by law; (c) be custodian of the corporate records and of
the seal of the Corporation, and see that the seal of the Corporation or a
facsimile thereof is affixed to all certificates for shares of the Corporation
prior to the issue thereof and to all documents, the execution of which on
behalf of the Corporation under its seal is duly authorized in accordance with
the provisions of these Bylaws; (d) keep or cause to be kept a register of the
post office address of each stockholder which shall be furnished by such
stockholder; (e) sign with the Chairman of the Board (if any), the Chief
Executive Officer, the President, or an Executive Vice President or Vice
President, certificates for shares of the Corporation and any deeds, bonds,
mortgages, contracts, checks, notes, drafts or other instruments, the issue or
execution of which shall have been authorized by resolution of the Board, except
in cases where the signing and execution thereof has been expressly delegated by
these Bylaws or by the Board to some other officer or agent of the Corporation,
or shall be required by law to be otherwise executed; (f) have general charge of
the stock transfer books of the Corporation; and (g) in general, perform all
duties normally incident to the office of Secretary and such other duties as
from time to time may be assigned by the Chairman of the Board (if any), the
Chief Executive Officer, the President, the Board or the Executive Committee (if
any).
Section 11. TREASURER. If required by the Board, the Treasurer shall
give a bond for the faithful discharge of his or her duties in such sum and with
such surety or sureties as the Board shall determine. The Treasurer shall (a)
have charge and custody of and be responsible for all funds and securities of
the Corporation; receive and give receipts for monies due and payable to the
-12-
Corporation from any source whatsoever and deposit all such monies in the
name of the Corporation in such banks, trust companies or other depositories
as shall be selected in accordance with the provisions of Section 4 of
Article VI of these Bylaws; (b) prepare, or cause to be prepared, for
submission at each regular meeting of the Board, at each annual meeting of
the stockholders, and at such other times as may be required by the Board,
the Chairman of the Board (if any), the Chief Executive Officer, the
President or the Executive Committee (if any), a statement of financial
condition of the Corporation in such detail as may be required; (c) sign with
the Chairman of the Board (if any), the Chief Executive Officer, the
President, or an Executive Vice President or Vice President, certificates for
shares of the Corporation and any deeds, bonds, mortgages, contracts, checks,
notes, drafts or other instruments, the issue or execution of which shall
have been authorized by resolution of the Board, except in cases where the
signing and execution thereof has been expressly delegated by these Bylaws or
by the Board to some other officer or agent of the Corporation, or shall be
required by law to be otherwise executed; and (d) in general, perform all the
duties incident to the office of Treasurer and such other duties as from time
to time may be assigned by the Chairman of the Board (if any), the Chief
Executive Officer, the President, the Board or the Executive Committee (if
any).
Section 12. ASSISTANT SECRETARY OR TREASURER. The Assistant Secretaries
and Assistant Treasurers shall, in general, perform such duties as shall be
assigned to them by the Secretary or the Treasurer, respectively, or by the
Chairman of the Board (if any), the President, the Board or the Executive
Committee (if any). The Assistant Secretaries and Assistant Treasurers shall, in
the absence of the Secretary or Treasurer, respectively, or in their respective
inability or refusal to act, perform all functions and duties which such absent
officers may delegate, but such delegation shall not relieve the absent officer
from the responsibilities and liabilities of their office. The Assistant
Secretaries may sign, with the Chairman of the Board (if any), the Chief
Executive Officer, the President or Executive Vice President or Vice President,
certificates for shares of the Corporation and any deeds, bonds, mortgages,
contracts, checks, notes, drafts or other instruments, the issue or execution of
which shall have been authorized by a resolution of the Board, except in cases
where the signing and execution thereof has been expressly delegated by these
Bylaws or by the Board to some other officer or agent of the Corporation, or
shall be required by law to be otherwise executed. The Assistant Treasurers
shall respectively, if required by the Board, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the Board shall
determine.
ARTICLE VI
CONTRACTS, CHECKS, LOANS, DEPOSITS, ETC.
Section 1. CONTRACTS. The Board may authorize any officer or officers,
agent or agents, in the name and on behalf of the Corporation, to enter into any
contract or to execute and deliver any instrument, which authorization may be
general or confined to specific instances; and, unless so authorized by the
Board, 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.
-13-
Section 2. CHECKS, ETC. All checks, drafts, bills of exchange or other
orders for the payment of money out of the funds of the Corporation, and all
notes or other evidences of indebtedness of the Corporation, shall be signed in
the name and on behalf of the Corporation in such manner as shall from time to
time be authorized by the Board, which authorization may be general or confined
to specific instances.
Section 3. LOANS. No loan shall be contracted on behalf of the
Corporation, and no negotiable paper shall be issued in its name, unless
authorized by the Board, which authorization may be general or confined to
specific instances. 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 shall authorize.
Section 4. DEPOSITS. 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 depositories as may be selected by or in
the manner designated by the Board. The Board or its designees may make such
special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these Bylaws, as may be deemed expedient.
ARTICLE VII
CAPITAL STOCK
Section 1. STOCK CERTIFICATES. Each stockholder shall be entitled to
have, in such form as shall be approved by the Board, a certificate or
certificates signed by the Chief Executive Officer or the President and by
either the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary (except that, when any such certificate is countersigned by a transfer
agent or registered by a registrar other than the Corporation itself or any
employee, the signatures of any such officers may be facsimiles, engraved or
printed), which may be sealed with the seal of the Corporation (which seal may
be a facsimile, engraved or printed), certifying the number of shares of capital
stock of the Corporation owned by such stockholder. In case any officer who has
signed or whose facsimile signature has been placed upon any such certificate
shall have ceased to be such officer before such certificate is issued, such
certificate may be issued by the Corporation with the same effect as if he were
such officer at the date of its issue.
Section 2. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make or cause to have prepared or made, 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 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
-14-
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 3. STOCK LEDGER. The stock ledger of the Corporation shall be
the only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 2 of this Article VII or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 4. TRANSFERS OF CAPITAL STOCK. Transfers of shares of capital
stock of the Corporation shall be made only on the stock records of the
Corporation by the holder of record thereof or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the Corporation or the transfer agent thereof, and only on surrender of the
certificate or certificates representing such shares, properly endorsed or
accompanied by a duly executed stock transfer power. The Board may make such
additional rules and regulations as it may deem expedient concerning the issue
and transfer of certificates representing shares of the capital stock of the
Corporation.
Section 5. LOST CERTIFICATES. The Board may direct a new certificate to
be issued in place of any certificate 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, the Board may,
in its discretion and as a condition precedent to the issuance thereof, require
the owner of such lost, stolen or destroyed certificate, or his legal
representative, 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.
Section 6. FIXING OF 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, or entitled to receive payment of any
dividends 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 may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10)
days before the date of such meeting, nor more than sixty (60) days prior to any
other action. 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 may fix a new record date for the
adjourned meeting.
Section 7. BENEFICIAL OWNERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
law.
-15-
ARTICLE VIII
DIVIDENDS
Section 1. DECLARATION. Dividends upon the capital stock of the
Corporation, subject to the provisions of the certificate of incorporation of
the Corporation, if any, may be declared by the Board at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property or in
shares of capital stock, subject to the provisions of the certificate of
incorporation of the Corporation.
Section 2. RESERVE. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the Board from time to time, in their absolute discretion, think proper
as a reserve or reserves to meet contingencies or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other
purpose as the Board shall think conducive to the interests of the Corporation,
and the directors may modify or abolish any such reserve in the manner in which
it was created.
ARTICLE IX
SEAL
The Corporation's seal shall be circular in form and shall include the
name of the Corporation, the state and year of its incorporation, and the word
"Seal."
ARTICLE X
WAIVER OF NOTICE
Whenever any notice is required by law, the certificate of
incorporation of the Corporation or these Bylaws, to be given to any director,
member of a committee or stockholder, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders, directors, or
members of a committee of directors need be specified in any written waiver of
notice.
-16-
ARTICLE XI
AMENDMENTS
These Bylaws may be amended or supplemented in any respect at any time,
either (a) at any meeting of stockholders, provided that any amendment or
supplement proposed to be acted upon at any such meeting shall have been
described or referred to in the notice of such meeting, or (b) at any meeting of
the Board; provided that any amendment or supplement proposed to be acted upon
at any such meeting shall have been described or referred to in the notice of
such meeting or an announcement with respect thereto shall have been made at the
last previous Board meeting, and further provided that no amendment or
supplement adopted by the Board shall vary or conflict with any amendment or
supplement adopted by the stockholders.
[Remainder of page intentionally left blank]
-17-
I, the undersigned, being the Secretary of the Corporation DO HEREBY
CERTIFY THAT the foregoing are the Bylaws of said Corporation, as adopted by the
Board of said Corporation on the ______ day of ______________, 2000.
______________________________
William S. Leftwich, Secretary
-18-
↑Top
Filing Submission 0000912057-00-020438 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Tue., Apr. 23, 4:58:39.1am ET 