Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Pre-Effective Amendment to Registration Statement 126 622K
(General Form)
2: EX-1.1 Underwriting Agreement 32 128K
3: EX-2.3 Plan of Acquisition, Reorganization, Arrangement, 5 22K
Liquidation or Succession
4: EX-3.1 Articles of Incorporation/Organization or By-Laws 5 22K
5: EX-3.2 Articles of Incorporation/Organization or By-Laws 19 89K
6: EX-4.1 Instrument Defining the Rights of Security Holders 2 9K
7: EX-4.2 Instrument Defining the Rights of Security Holders 48 158K
8: EX-5.1 Opinion re: Legality 2 10K
9: EX-10.14 Material Contract 10 42K
10: EX-10.15 Material Contract 6 22K
11: EX-10.16 Material Contract 17 68K
12: EX-23.2 Consent of Experts or Counsel 1 7K
13: EX-27.1 Financial Data Schedule (Pre-XBRL) 2 17K
EX-3.2 — Articles of Incorporation/Organization or By-Laws
Exhibit Table of Contents
Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
CHARLES RIVER LABORATORIES INTERNATIONAL, INC.
AMENDED AND RESTATED
BY-LAWS
TABLE OF CONTENTS
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ARTICLE I - Stockholders..........................................................1
1.1 PLACE OF MEETINGS...............................................1
1.2 ANNUAL MEETING..................................................1
1.3 SPECIAL MEETINGS................................................1
1.4 NOTICE OF MEETING...............................................2
1.5 VOTING LIST.....................................................2
1.6 QUORUM..........................................................2
1.7 ADJOURNMENTS....................................................2
1.8 VOTING AND PROXIES..............................................2
1.9 PROXY REPRESENTATION............................................3
1.10 ACTION AT MEETING...............................................3
1.11 ACTION WITHOUT MEETING..........................................3
1.12 NOMINATION OF DIRECTORS.........................................3
1.13 NOTICE OF BUSINESS AT ANNUAL MEETINGS...........................4
1.14 ORGANIZATION....................................................5
ARTICLE II - Directors............................................................5
2.1 GENERAL POWERS..................................................5
2.2 NUMBER; ELECTION AND QUALIFICATION..............................5
2.3 ENLARGEMENT OF THE BOARD........................................5
2.4 TENURE..........................................................6
2.5 VACANCIES.......................................................6
2.6 RESIGNATION.....................................................6
2.7 REGULAR MEETINGS................................................6
2.8 SPECIAL MEETINGS................................................6
2.9 NOTICE OF SPECIAL MEETINGS......................................6
2.10 MEETINGS BY TELEPHONE CONFERENCE CALLS..........................7
2.11 QUORUM..........................................................7
2.12 ACTION AT MEETING...............................................7
2.13 ACTION BY CONSENT...............................................7
2.14 REMOVAL.........................................................7
2.15 COMMITTEES......................................................7
2.16 COMPENSATION OF DIRECTORS.......................................8
ARTICLE III - Officers............................................................8
3.1 ENUMERATION.....................................................8
3.2 ELECTION........................................................8
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3.3 QUALIFICATION...................................................8
3.4 TENURE..........................................................9
3.5 RESIGNATION AND REMOVAL.........................................9
3.6 VACANCIES.......................................................9
3.7 CHAIRMAN OF THE BOARD...........................................9
3.8 CHIEF EXECUTIVE OFFICER.........................................9
3.9 PRESIDENT.......................................................9
3.10 CHIEF FINANCIAL OFFICER........................................10
3.11 VICE PRESIDENTS................................................10
3.12 CONTROLLERS....................................................10
3.13 SECRETARY......................................................10
3.14 TREASURER......................................................10
3.15 OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS..................11
3.16 SALARIES.......................................................11
ARTICLE IV - Capital Stock.......................................................11
4.1 ISSUANCE OF STOCK..............................................11
4.2 CERTIFICATES OF STOCK..........................................11
4.3 TRANSFERS......................................................12
4.4 LOST, STOLEN OR DESTROYED CERTIFICATES.........................12
4.5 RECORD DATE....................................................12
4.6 DIVIDENDS......................................................12
ARTICLE V - General Provisions...................................................13
5.1 FISCAL YEAR....................................................13
5.2 CORPORATE SEAL.................................................13
5.3 WAIVER OF NOTICE...............................................13
5.4 VOTING OF SECURITIES...........................................13
5.5 EVIDENCE OF AUTHORITY..........................................13
5.6 CERTIFICATE OF INCORPORATION...................................14
5.7 TRANSACTIONS WITH INTERESTED PARTIES...........................14
5.8 SEVERABILITY...................................................14
5.9 PRONOUNS.......................................................14
5.10 CONTRACTS......................................................14
5.11 LOANS..........................................................15
5.12 INSPECTION OF BOOKS AND RECORDS................................15
5.13 SECTION HEADINGS...............................................15
5.14 INCONSISTENT PROVISIONS........................................15
ARTICLE VI - Amendments..........................................................15
6.1 BY THE BOARD OF DIRECTORS......................................15
6.2 BY THE STOCKHOLDERS............................................15
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AMENDED AND RESTATED
BY-LAWS
OF
CHARLES RIVER LABORATORIES INTERNATIONAL, INC.
ARTICLE I - STOCKHOLDERS
1.1 PLACE OF MEETINGS.
All meetings of stockholders shall be held at such place within or
without the State of Delaware as may be designated from time to time by the
Board of Directors or the Chief Executive Officer (or, if there is no Chief
Executive Officer, the President) or, if not so designated, at the registered
office of the corporation.
1.2 ANNUAL MEETING.
The annual meeting of stockholders for the election of directors and
for the transaction of such other business as may properly be brought before the
meeting shall be held on a date to be fixed by the Board of Directors or the
Chief Executive Officer (or, if there is no Chief Executive Officer, the
President) (which date shall not be a legal holiday in the place where the
meeting is to be held) at the time and place to be fixed by the Board of
Directors or the Chief Executive Officer (or, if there is no Chief Executive
Officer, the President) and stated in the notice of the meeting. If no annual
meeting is held in accordance with the foregoing provisions, the Board of
Directors shall cause the meeting to be held as soon thereafter as convenient.
If no annual meeting is held in accordance with the foregoing provisions, a
special meeting may be held in lieu of the annual meeting, and any action taken
at that special meeting shall have the same effect as if it had been taken at
the annual meeting, and in such case all references in these By-Laws to the
annual meeting of the stockholders shall be deemed to refer to such special
meeting.
1.3 SPECIAL MEETINGS.
Special meetings of stockholders may be called at any time only by (i)
the Chairman of the Board of Directors, (ii) the Chief Executive Officer (or, if
there is no Chief Executive Officer, the President), or (iii) the Board of
Directors of the Corporation pursuant to a resolution adopted by the affirmative
vote of a majority of the total number of directors then in office. Any business
transacted at any special meeting of stockholders shall be limited to matters
relating to the purpose or purposes stated in the notice of meeting.
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1.4 NOTICE OF MEETING.
Except as otherwise provided by law, written notice of each meeting of
stockholders, whether annual or special, shall be given not less than ten (10)
nor more than sixty (60) days before the date of the meeting to each stockholder
entitled to vote at such meeting. The notices of all meetings shall state the
place, date and hour of the meeting. The notice of a special meeting shall
state, in addition, the purpose or purposes for which the meeting is called. If
mailed, notice is given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his or her address as it appears on the
records of the corporation.
1.5 VOTING LIST.
The officer who has charge of the stock ledger of the corporation shall
prepare, at least ten (10) 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 (10) days prior to
the meeting, at a place within the city where the meeting is to be held. The
list shall also be produced and kept at the time and place of the meeting during
the whole time of the meeting, and may be inspected by any stockholder who is
present.
1.6 QUORUM.
Except as otherwise provided by law, the Certificate of Incorporation
or these By-Laws, the holders of a majority of the shares of the capital stock
of the corporation issued and outstanding and entitled to vote at the meeting,
present in person or represented by proxy, shall constitute a quorum for the
transaction of business.
1.7 ADJOURNMENTS.
Any meeting of stockholders may be adjourned to any other time and to
any other place at which a meeting of stockholders may be held under these
By-Laws by a majority of the stockholders present or represented at the meeting
and entitled to vote, although less than a quorum, or, if no stockholder is
present, by any officer entitled to preside at or to act as Secretary of such
meeting. It shall not be necessary to notify any stockholder of any adjournment
of less than thirty (30) days if the time and place of the adjourned meeting are
announced at the meeting at which adjournment is taken, unless after the
adjournment a new record date is fixed for the adjourned meeting. At the
adjourned meeting, the corporation may transact any business which might have
been transacted at the original meeting.
1.8 VOTING AND PROXIES.
Except as otherwise provided by the General Corporation Law of the
State of Delaware, the Certificate of Incorporation or these By-Laws, each
stockholder shall have one vote for each share of capital stock entitled to vote
and held of record by such stockholder. Each stockholder of record entitled to
vote at a meeting of stockholders may vote in person or may authorize
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another person or persons to vote or act for him or her by written proxy
executed by the stockholder or his or her authorized agent and delivered to the
Secretary of the corporation.
1.9 PROXY REPRESENTATION.
Every stockholder may authorize another person or persons to act for
him or her 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.
The delivery of a proxy on behalf of a stockholder consistent with telephonic or
electronically transmitted instructions obtained pursuant to procedures of the
corporation reasonably designed to verify that such instructions have been
authorized by such stockholder shall constitute execution and delivery of the
proxy by or on behalf of the stockholder. 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 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. A proxy purporting to be authorized by or on behalf of a stockholder,
if accepted by the corporation in its discretion, shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger.
1.10 ACTION AT MEETING.
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, the Certificate of Incorporation or these By-Laws. 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.
1.11 ACTION WITHOUT MEETING.
Stockholders may not take any action by written consent in lieu of a
meeting.
1.12 NOMINATION OF DIRECTORS.
Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors. The nomination for
election to the Board of Directors of the corporation at a meeting of
stockholders may be made by the Board of Directors or 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 1.12. Such
nominations, other than those made by or on behalf of the Board of Directors,
shall be made by notice in writing delivered or mailed by first class United
States mail, postage prepaid, to the Secretary, and received at the principal
executive offices of the corporation not less than sixty (60) days nor
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more than ninety (90) days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; PROVIDED, HOWEVER, that if the annual
meeting is not held within thirty (30) days before or after such anniversary
date, then such nomination shall have been delivered to or mailed and received
by the Secretary not later than the close of business on the 10th day following
the date on which the notice of the meeting was mailed or such public disclosure
was made, whichever occurs first. Such notice shall set forth (a) as to each
proposed nominee (i) the name, age, business address and, if known, residence
address of each such nominee, (ii) the principal occupation or employment of
each such nominee, (iii) the number of shares of stock of the corporation which
are beneficially owned by each such nominee, and (iv) any other information
concerning the nominee that must be disclosed as to nominees in proxy
solicitations pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended, including such person's written consent to be named as a
nominee and to serve as a director if elected; and (b) as to the stockholder
giving the notice (i) the name and address, as they appear on the corporation's
books, of such stockholder and (ii) the class and number of shares of the
corporation which are beneficially owned by such stockholder. The corporation
may require any proposed nominee to furnish such other information as may
reasonably be required by the corporation to determine the eligibility of such
proposed nominee to serve as a director of the corporation.
The chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he or she should so determine, he or she shall so
declare to the meeting and the defective nomination shall be disregarded.
1.13 NOTICE OF BUSINESS AT ANNUAL MEETINGS.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (a) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly brought before an
annual meeting by a stockholder. For business to be properly brought before an
annual meeting by a stockholder, if such business relates to the election of
directors of the corporation, the procedures in Section 1.12 must be complied
with. If such business relates to any other matter, the stockholder must have
given timely notice thereof in writing to the Secretary. 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 sixty (60) days nor
more than ninety (90) days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; PROVIDED, HOWEVER, that if the annual
meeting is not held within thirty (30) days before or after such anniversary
date, then for the notice by the stockholder to be timely it must be so received
not later than the close of business on the 10th day following the date on which
the notice of the meeting was mailed or such public disclosure was made,
whichever occurs first. A stockholder's notice to the Secretary shall set forth
as to each matter the stockholder proposes to bring before the annual meeting
(a) a brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (b)
the name and address, as they appear on the corporation's books, of the
stockholder proposing such business, (c) the class and number of shares of the
corporation which are beneficially owned by the
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stockholder and (d) any material interest of the stockholder in such business.
Notwithstanding anything in these By-Laws to the contrary, no business shall be
conducted at any annual meeting except in accordance with the procedures set
forth in this Section 1.13, except that any stockholder proposal which complies
with Rule 14a-8 of the proxy rules, or any successor provision, promulgated
under the Securities Exchange Act of 1934, as amended, and is to be included in
the corporation's proxy statement for an annual meeting of stockholders shall be
deemed to comply with the requirements of this Section 1.13.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
in accordance with the provisions of this Section 1.13, and if he or she should
so determine, the chairman shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
1.14 ORGANIZATION.
The Chairman of the Board, or in his or her absence the President,
shall call meetings of the stockholders to order, and act as chairman of such
meeting; provided, however, that the Board of Directors may appoint any
stockholder to act as chairman of any meeting in the absence of the Chairman of
the Board. The Secretary of the corporation shall act as secretary at all
meetings of the stockholders; provided, however, that in the absence of the
Secretary at any meeting of the stockholders, the acting chairman may appoint
any person to act as secretary of the meeting.
ARTICLE II - DIRECTORS
2.1 GENERAL POWERS.
The business and affairs of the corporation shall be managed by or
under the direction of a Board of Directors, who may exercise all of the powers
of the corporation except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board of Directors until the vacancy is filled.
2.2 NUMBER; ELECTION AND QUALIFICATION.
The number of directors which shall constitute the whole Board of
Directors shall be determined by resolution of the Board of Directors, but in no
event shall be less than three. The number of directors may be decreased at any
time and from time to time either by the stockholders or by a majority of the
directors then in office, but only to eliminate vacancies existing by reason of
the death, resignation, removal or expiration of the term of one or more
directors. The directors shall be elected at the annual meeting of stockholders
by such stockholders as have the right to vote on such election. Directors need
not be stockholders of the corporation.
2.3 ENLARGEMENT OF THE BOARD.
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The number of directors may be increased at any time and from time to
time by the stockholders or by a majority of the directors then in office.
2.4 TENURE.
Each director shall hold office until the next annual meeting and until
his successor is elected and qualified, or until his earlier death, resignation
or removal.
2.5 VACANCIES.
Any vacancy in the Board of Directors, however occurring, including a
vacancy resulting from an enlargement of the Board of Directors, shall be filled
only by vote of a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. A director elected to fill a vacancy
shall be elected for the unexpired term of his or her predecessor in office, and
a director chosen to fill a position resulting from an increase in the number of
directors shall hold office until the next annual meeting of stockholders and
until his successor is elected and qualified, or until his earlier death,
resignation or removal.
2.6 RESIGNATION.
Any director may resign by delivering his or her written resignation to
the corporation at its principal office or to the President or Secretary. Such
resignation shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some other event.
2.7 REGULAR MEETINGS.
Regular meetings of the Board of Directors may be held without notice
at such time and place, either within or without the State of Delaware, as shall
be determined from time to time by the Board of Directors; provided that any
director who is absent when such a determination is made shall be given notice
of the determination. A regular meeting of the Board of Directors may be held
without notice immediately after and at the same place as the annual meeting of
stockholders.
2.8 SPECIAL MEETINGS.
Special meetings of the Board of Directors may be held at any time and
place, within or without the State of Delaware, designated in a call by the
Chairman of the Board of Directors, the Chief Executive Officer (or, if there is
no Chief Executive Officer, the President), two or more directors, or by one
director in the event that there is only a single director in office.
2.9 NOTICE OF SPECIAL MEETINGS.
Notice of any special meeting of the Board of Directors shall be given
to each director by the Secretary or by the officer or one of the directors
calling the meeting. Notice shall be duly given to each director (i) by giving
notice to such director in person or by telephone at least twenty-four (24)
hours in advance of the meeting, (ii) by sending a telegram, telecopy or telex,
or delivering written notice by hand, to his or her last known business or home
address at least
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twenty-four (24) hours in advance of the meeting, or (iii) by mailing written
notice to his or her last known business or home address at least seventy-two
(72) hours in advance of the meeting. A notice or waiver of notice of a special
meeting of the Board of Directors need not specify the purposes of the meeting.
2.10 MEETINGS BY TELEPHONE CONFERENCE CALLS.
Directors or any members of any committee of the Board of Directors
designated by the Board of Directors may participate in a meeting of the Board
of Directors or such 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 such meeting.
2.11 QUORUM.
A majority of the total number of the whole Board of Directors shall
constitute a quorum at all meetings of the Board of Directors. In the event one
or more of the directors shall be disqualified to vote at any meeting, then the
required quorum shall be reduced by one for each such director so disqualified;
provided, however, that in no case shall less than one-third (1/3) of the number
of directors so fixed constitute a quorum. In the absence of a quorum at any
such meeting, a majority of the directors present may adjourn the meeting from
time to time without further notice, other than announcement at the meeting,
until a quorum shall be present.
2.12 ACTION AT MEETING.
At any meeting of the Board of Directors at which a quorum is present,
the vote of a majority of those present shall be sufficient to take any action,
unless a different vote is specified by law, the Certificate of Incorporation or
these By-Laws.
2.13 ACTION BY CONSENT.
Any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee of the Board of Directors may be taken
without a meeting, if all members of the Board or committee, as the case may be,
consent to the action in writing, and the written consents are filed with the
minutes of proceedings of the Board of Directors or committee of the Board of
Directors, as applicable.
2.14 REMOVAL.
The directors of the corporation may not be removed without cause and
may be removed for cause only by the affirmative vote of the holders of eighty
percent (80%) of the shares of the capital stock of the corporation issued and
outstanding and entitled to vote generally in the election of directors cast at
a meeting of the stockholders called for that purpose.
2.15 COMMITTEES.
The Board of Directors may, by resolution passed by a majority of the
whole Board, designate one or more committees, each committee to consist of one
or more of the directors of
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the corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members of the committee present at any
meeting and not disqualified from voting, whether or not he, she or they
constitute 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. Any such committee, to the extent provided in the resolution of the
Board of Directors and subject to the provisions of the General Corporation Law
of the State of Delaware, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the corporation and may authorize the seal of the corporation to be
affixed to all papers which may require it. Each such committee shall keep
minutes and make such reports as the Board of Directors may from time to time
request. 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 directors or in such rules, its business shall be conducted as nearly as
possible in the same manner as is provided in these By-Laws for the Board of
Directors.
2.16 COMPENSATION OF DIRECTORS.
Directors may be paid such compensation for their services and such
reimbursement for expenses of attendance at meetings as the Board of Directors
may from time to time determine. No such payment shall preclude any director
from serving the corporation or any of its parent or subsidiary corporations in
any other capacity and receiving compensation for such service.
ARTICLE III - OFFICERS
3.1 ENUMERATION.
The officers of the corporation shall consist of a Chief Executive
Officer, a President, a Chief Financial Officer, a Secretary and a Treasurer.
The Board of Directors may appoint other officers with such titles and powers as
it may deem appropriate, including, without limitation, a Chairman of the Board,
a Vice-Chairman of the Board, and one or more Vice Presidents, Assistant
Treasurers, Assistant Secretaries and Controllers. The Board of Directors may
appoint such other officers as it may deem appropriate.
3.2 ELECTION.
The Chief Executive Officer, President, Chief Financial Officer,
Secretary and Treasurer shall be elected annually by the Board of Directors at
its first meeting following the annual meeting of stockholders. Other officers
may be appointed by the Board of Directors at such meeting or at any other
meeting.
3.3 QUALIFICATION.
No officer need be a stockholder of the corporation. Any two or more
offices may be held by the same person.
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3.4 TENURE.
Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, each officer shall hold office until his or
her successor is elected and qualified, unless a different term is specified in
the vote choosing or appointing him or her, or until his or her earlier death,
resignation or removal.
3.5 RESIGNATION AND REMOVAL.
Any officer may resign by delivering his or her written resignation to
the corporation at its principal office or to the Chief Executive Officer or
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
Any officer may be removed at any time, with or without cause, by vote
of a majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no officer
who resigns or is removed shall have any right to any compensation as an officer
for any period following his or her resignation or removal, or any right to
damages on account of such removal, whether his or her compensation be by the
month or by the year or otherwise, unless such compensation is expressly
provided in a duly authorized written agreement with the corporation.
3.6 VACANCIES.
The Board of Directors may fill any vacancy occurring in any office for
any reason and may, in its discretion, leave unfilled for such period as it may
determine any offices other than those of Chief Executive Officer, President,
Secretary and Treasurer. Each such successor shall hold office for the unexpired
term of his or her predecessor and until his or her successor is elected and
qualified, or until his or her earlier death, resignation or removal.
3.7 CHAIRMAN OF THE BOARD.
The Board of Directors may appoint a Chairman of the Board. If the
Board of Directors appoints a Chairman of the Board, he or she shall perform
such duties and possess such powers as are assigned to him or her by the Board
of Directors.
3.8 CHIEF EXECUTIVE OFFICER.
The Chief Executive Officer shall, subject to the direction of the
Board of Directors, have general charge and supervision of the business of the
corporation. The Chief Executive Officer shall perform such other duties and
possess such other powers as the Board of Directors may from time to time
prescribe.
3.9 PRESIDENT.
The President shall perform such duties and possess such powers as the
Board of Directors or the Chief Executive Officer may from time to time
prescribe. In the event of the
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absence, inability or refusal to act of the Chief Executive Officer, the
President shall perform the duties of the Chief Executive Officer and when so
performing shall have all the powers of and be subject to all the restrictions
upon the office of Chief Executive Officer.
3.10 CHIEF FINANCIAL OFFICER.
The Chief Financial Officer shall perform such duties and possess such
powers as the Board of Directors or the Chief Executive Officer may from time to
time prescribe. The Chief Financial Officer shall have the custody of the
corporate funds and securities; shall keep full and accurate all books and
accounts of the corporation as shall be necessary or desirable in accordance
with applicable law or generally accepted accounting principles; shall deposit
all monies and other valuable effects in the name and to the credit of the
corporation as may be ordered by the Chairman of the Board or the Board of
Directors; shall cause the funds of the corporation to be disbursed when such
disbursements have been duly authorized, taking proper vouchers for such
disbursements; and shall render to the Board of Directors, at its regular
meeting or when the Board of Directors so requires, an account of the
corporation.
3.11 VICE PRESIDENTS.
Any Vice President shall perform such duties and possess such powers as
the Board of Directors, the Chief Executive Officer or the President may from
time to time prescribe. The Board of Directors may assign to any Vice President
the title of Executive Vice President, Senior Vice President or any other such
title.
3.12 CONTROLLERS.
Any Controller shall perform such duties and possess such powers as the
Board of Directors, the Chief Executive Officer or any Vice President may from
time to time prescribe.
3.13 SECRETARY.
The Secretary shall perform such duties and possess such powers as the
Board of Directors or the Chief Executive Officer may from time to time
prescribe. In addition, the Secretary shall perform such duties and have such
powers as are incident to the office of the Secretary, including without
limitation the duty and power to give notices of all meetings of stockholders
and special meetings of the Board of Directors, to attend all meetings of
stockholders and the Board of Directors and keep a record of the proceedings, to
maintain a stock ledger and prepare lists of stockholders and their addresses as
required, to be custodian of corporate records and the corporate seal and to
affix and attest to the same on documents.
In the event of the absence, inability or refusal to act of the
Secretary at any meeting of stockholders or directors, the person presiding at
the meeting shall designate a temporary secretary to keep a record of the
meeting.
3.14 TREASURER.
The Treasurer shall perform such duties and possess such powers as the
Board of Directors, the Chief Executive Officer or the Chief Financial Officer
may from time to time
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prescribe. In addition, the Treasurer shall perform such duties and have such
powers as are incident to the office of Treasurer, including without limitation
the duty and power to keep and be responsible for all funds and securities of
the corporation, to deposit funds of the corporation in depositories selected in
accordance with these By-Laws, to disburse such funds as ordered by the Board of
Directors, to make proper accounts of such funds, and to render as required by
the Board of Directors statements of all such transactions and of the financial
condition of the corporation. Unless the Board of Directors has designated
another officer as Chief Financial Officer, the Treasurer shall be the Chief
Financial Officer of the corporation.
In the event of the absence, inability or refusal to act of the
Treasurer, the Board of Directors shall appoint a temporary treasurer, who shall
perform the duties and exercise the powers of the Treasurer.
3.15 OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS.
Officers, assistant officers and agents, if any, other than those whose
duties are provided for in these By-laws, shall have such authority and perform
such duties as may from time to time be prescribed by resolution of the Board of
Directors.
3.16 SALARIES.
Officers of the corporation shall be entitled to such salaries,
compensation or reimbursement as shall be fixed or allowed from time to time by
the Board of Directors.
ARTICLE IV - CAPITAL STOCK
4.1 ISSUANCE OF STOCK.
Unless otherwise voted by the stockholders and subject to the
provisions of the Certificate of Incorporation, the whole or any part of any
unissued balance of the authorized capital stock of the corporation or the whole
or any part of any unissued balance of the authorized capital stock of the
corporation held in its treasury may be issued, sold, transferred or otherwise
disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may determine.
4.2 CERTIFICATES OF STOCK.
Every holder of stock of the corporation shall be entitled to have a
certificate, in such form as may be prescribed by law and by the Board of
Directors, certifying the number and class of shares owned by him or her in the
corporation. Each such certificate shall be signed by, or in the name of the
corporation by, the Chairman of the Board of Directors, the Chief Executive
Officer or the President, and the Treasurer or the Secretary of the corporation.
Any or all of the signatures on the certificate may be a facsimile.
Each certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Certificate of Incorporation, the
By-Laws, applicable securities laws or any agreement among any number of
stockholders or among such holders and the corporation shall
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have conspicuously noted on the face or back of the certificate either the full
text of the restriction or a statement of the existence of such restriction.
4.3 TRANSFERS.
Except as otherwise established by rules and regulations adopted by the
Board of Directors, and subject to applicable law, 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 representing such shares properly
endorsed or accompanied by a written assignment or power of attorney properly
executed, and with such proof of authority or the authenticity of signature as
the corporation or its transfer agent may reasonably require. Except as may be
otherwise required by law, by the Certificate of Incorporation or by these
By-Laws, the 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 vote with respect to such stock,
regardless of any transfer, pledge or other disposition of such stock, until the
shares have been transferred on the books of the corporation in accordance with
the requirements of these By-Laws.
4.4 LOST, STOLEN OR DESTROYED CERTIFICATES.
The corporation may issue a new certificate of stock in place of any
previously issued certificate alleged to have been lost, stolen, or destroyed,
upon such terms and conditions as the Board of Directors may prescribe,
including the presentation of reasonable evidence of such loss, theft or
destruction and the giving of such indemnity as the Board of Directors may
require for the protection of the corporation or any transfer agent or
registrar.
4.5 RECORD DATE.
The Board of Directors may fix in advance a date as a record date for
the determination of the stockholders entitled to notice of or to vote at any
meeting of stockholders or entitled to receive payment of any dividend or other
distribution or allotment of any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action. Such record
date shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action to
which such record date relates.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day before the day on which notice is given,
or, if notice is waived, at the close of business on the day before the day on
which the meeting is held. The record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating to such purpose.
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.
4.6 DIVIDENDS.
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Subject to limitations contained in the General Corporation Law of the
State of Delaware, the Certificate of Incorporation and these By-Laws, the Board
of Directors may declare and pay dividends upon the shares of capital stock of
the corporation, which dividends may be paid either in cash, in property or in
shares of the capital stock of the corporation.
ARTICLE V - GENERAL PROVISIONS
5.1 FISCAL YEAR.
Except as from time to time otherwise designated by the Board of
Directors, the fiscal year of the corporation shall end on the last Saturday of
December in each year.
5.2 CORPORATE SEAL.
The corporate seal shall be in such form as shall be approved by the
Board of Directors.
5.3 WAIVER OF NOTICE.
Whenever any notice whatsoever is required to be given by law, by the
Certificate of Incorporation or by these By-Laws, a waiver of such notice either
in writing signed by the person entitled to such notice or such person's duly
authorized attorney, or by telegraph, cable or any other available method,
whether before, at or after the time stated in such waiver, or by the appearance
of such person at such meeting in person or by proxy, shall be deemed equivalent
to such notice. Any member of the Board of Directors or any committee thereof
who is present at a meeting shall be conclusively presumed to have waived notice
of such meeting except when such member attends 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. Such member shall be
conclusively presumed to have assented to any action taken unless his or her
dissent shall be entered in the minutes of the meeting or unless his or her
written dissent to such action shall be filed with the person acting as the
secretary of the meeting before the adjournment thereof or shall be forwarded by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to any member
who voted in favor of such action.
5.4 VOTING OF SECURITIES.
Except as the directors may otherwise designate, the Chief Executive
Officer or Treasurer may waive notice of, and act as, or appoint any person or
persons to act as, proxy or attorney-in-fact for this corporation (with or
without power of substitution) at, any meeting of stockholders or shareholders
of any other corporation or organization, the securities of which may be held by
this corporation.
5.5 EVIDENCE OF AUTHORITY.
A certificate by the Secretary, or a temporary secretary, as to any
action taken by the stockholders, directors, a committee or any officer or
representative of the corporation shall, as to all persons who rely on the
certificate in good faith, be conclusive evidence of such action.
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5.6 CERTIFICATE OF INCORPORATION.
All references in these By-Laws to the Certificate of Incorporation
shall be deemed to refer to the Certificate of Incorporation of the corporation,
as amended or restated and in effect from time to time.
5.7 TRANSACTIONS WITH INTERESTED PARTIES.
No contract or transaction between the corporation and one or more of
the directors or officers, or between the corporation and any other corporation,
partnership, association, or other organization in which one or more of the
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board of
Directors or a committee of the Board of Directors which authorizes the contract
or transaction or solely because his, her or their votes are counted for such
purpose, if:
(1) The material facts as to his, her or their relationship or
interest and as to the contract or transaction are disclosed or are
known to the Board of Directors or the committee, and the Board of
Directors or committee of the Board of Directors in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum;
(2) The material facts as to his, her or their relationship or
interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the corporation
as of the time it is authorized, approved or ratified by the Board of
Directors, a committee of the Board of Directors, or the stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
that authorizes the contract or transaction.
5.8 SEVERABILITY.
Any determination that any provision of these By-Laws is for any reason
inapplicable, illegal or ineffective shall not affect or invalidate any other
provision of these By-Laws.
5.9 PRONOUNS.
All pronouns used in these By-Laws shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the person
or persons may require.
5.10 CONTRACTS.
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In addition to the powers otherwise granted to officers pursuant to
Article 4 hereof, the Board of Directors may authorize any officer or officers,
or any agent or agents, of the corporation to enter into any contract or to
execute and deliver any instrument in the name of and on behalf of the
corporation, and such authority may be general or confined to specific
instances.
5.11 LOANS.
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or of its
subsidiaries, including any officer or employee who is a Director of the
corporation or its subsidiaries, whenever, in the judgment of the Directors,
such loan, guaranty or assistance may reasonably be expected to benefit the
corporation. The loan, guaranty or other assistance may be with or without
interest, and may be unsecured, or secured in such manner as the Board of
Directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing in this section shall be deemed to deny, limit
or restrict the powers of guaranty or warranty of the corporation at common law
or under any statute.
5.12 INSPECTION OF BOOKS AND RECORDS.
The Board of Directors shall have power from time to time to determine
to what extent and at what times and places and under what conditions and
regulations the accounts and books of the corporation, or any of them, shall be
open to the inspection of the stockholders; and no stockholder shall have any
right to inspect any account or book or document of the corporation, except as
conferred by the laws of the State of Delaware, unless and until authorized so
to do by resolution of the Board of Directors or of the stockholders of the
corporation.
5.13 SECTION HEADINGS.
Section headings in these By-laws are for convenience of reference only
and shall not be given any substantive effect in limiting or otherwise
construing any provision herein.
5.14 INCONSISTENT PROVISIONS.
In the event that any provision of these By-laws is or becomes
inconsistent with any provision of the Restated Certificate of Incorporation,
the General Corporation Law of the State of Delaware or any other applicable
law, the provision of these By-laws shall not be given any effect to the extent
of such inconsistency but shall otherwise be given full force and effect.
ARTICLE VI - AMENDMENTS
6.1 BY THE BOARD OF DIRECTORS.
These By-Laws may be altered, amended or repealed or new By-Laws may be
adopted by the affirmative vote of a majority of the directors present at any
regular or special meeting of the Board of Directors at which a quorum is
present.
6.2 BY THE STOCKHOLDERS.
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Notwithstanding any other provision of law, the Certificate of
Incorporation or these By-Laws, and notwithstanding the fact that a lesser
percentage may be specified by law, the affirmative vote of the holders of at
least eighty percent (80%) of the shares of the capital stock of the corporation
issued and outstanding and entitled to vote shall be required to alter, amend or
repeal Sections 1.4, 1.11, 1.12, 1.13 and 2.14 of these By-Laws or to adopt new
By-Laws containing provisions inconsistent with such Sections. All other
Sections of these By-Laws may be adopted, amended or repealed by vote of a
majority of the voting power of the stock outstanding and entitled to vote.
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