Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2 Registration of Securities by a Small-Business 81 493K
Issuer
2: EX-3.1 Articles of Incorporation/Organization or By-Laws 28 113K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws 17 74K
4: EX-4.1 Instrument Defining the Rights of Security Holders 2 16K
5: EX-4.2 Instrument Defining the Rights of Security Holders 4± 22K
6: EX-10.1 Material Contract 3 18K
15: EX-10.10 Material Contract 6 34K
16: EX-10.11 Material Contract 6 33K
17: EX-10.12 Material Contract 11 42K
18: EX-10.13 Material Contract 4 21K
19: EX-10.14 Material Contract 10 44K
20: EX-10.15 Material Contract 4 22K
21: EX-10.16 Material Contract 10 43K
22: EX-10.17 Material Contract 3 20K
23: EX-10.18 Material Contract 9 41K
24: EX-10.19 Material Contract 2 15K
7: EX-10.2 Material Contract 2 17K
25: EX-10.20 Material Contract 8 35K
26: EX-10.21 Material Contract 17 62K
27: EX-10.22 Material Contract 2± 13K
28: EX-10.23 Material Contract 2 17K
29: EX-10.24 Material Contract 19 56K
30: EX-10.25 Material Contract 13 50K
31: EX-10.26 Material Contract 7 35K
32: EX-10.27 Material Contract 4 17K
33: EX-10.28 Material Contract 9 40K
34: EX-10.29 Material Contract 10 47K
8: EX-10.3 Material Contract 6 43K
35: EX-10.30 Material Contract 6 35K
36: EX-10.31 Material Contract 6 31K
37: EX-10.32 Material Contract 11 57K
38: EX-10.35 Material Contract 37 125K
39: EX-10.36 Material Contract 18 52K
9: EX-10.4 Material Contract 7 36K
10: EX-10.5 Material Contract 2± 14K
11: EX-10.6 Material Contract 3 21K
12: EX-10.7 Material Contract 4 20K
13: EX-10.8 Material Contract 1 12K
14: EX-10.9 Material Contract 1 14K
40: EX-21.1 Subsidiaries of the Registrant 1 10K
41: EX-23.1 Consent of Experts or Counsel 1 11K
42: EX-27.1 Financial Data Schedule (Pre-XBRL) 2 14K
EX-3.1 — Articles of Incorporation/Organization or By-Laws
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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
OUTLOOK SPORTS TECHNOLOGY, INC.
The following Amended and Restated Certificate of Incorporation: (i)
amends and restates the provisions of the Certificate of Incorporation of
Outlook Sports Technology, Inc. (the "Corporation") originally filed with the
Secretary of State of the State of Delaware under the name Hippo, Inc. on
February 8, 1998, as amended to date; (ii) supersedes the Certificate of
Incorporation and all amendments thereto; and (iii) has been duly proposed by
the board of directors of the Corporation and duly adopted by the
stockholders of the Corporation in accordance with the provisions of Sections
228, 242 and 245 of the Delaware General Corporation Law.
FIRST: The name of this corporation (the "Corporation") is Outlook
Sports Technology, Inc.
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801,
County of New Castle, and the name of its registered agent at such address is
The Corporation Trust Company.
THIRD: The purpose for which the Corporation is organized is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware, including without
limitation the design, marketing and manufacture of golf equipment, apparel
and accessories.
FOURTH: The Corporation is authorized to issue two classes of
capital stock, one of which is designated as common stock, $.01 par value per
share ("Common Stock"), and the other of which is designated as preferred
stock, $.01 par value per share ("Preferred Stock"). The total number of
shares of both classes of capital stock that the Corporation shall have
authority to issue is 25,000,000 shares, consisting of 20,000,000 shares of
Common Stock and 5,000,000 shares of Preferred Stock. The Preferred Stock may
be issued from time to time in one or more series as set forth in Section (b)
of this Article FOURTH. The following is a statement of the designations and
the powers, preferences and rights of, and the qualifications, limitations or
restrictions applicable to, each class of capital stock of the Corporation.
(a) COMMON STOCK
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(1) General. The voting, dividend and
liquidation rights of holders of Common Stock are subject to and qualified by
the rights of holders of Preferred Stock of any series as may be designated
in any resolution or resolutions providing for the issue of such series as
may be adopted by the board of directors as hereinafter provided.
(2) Voting. Holders of Common Stock are entitled
to one vote for each share held at all meetings of stockholders. The number
of authorized shares of Common Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote
of the holders of a majority of the capital stock of the Corporation entitled
to vote, irrespective of the provisions of Section 242(b)(2) of the General
Corporation Law of the State of Delaware.
(3) Dividends. Dividends may be declared and paid
on Common Stock from funds lawfully available therefor, as and when
determined by the board of directors and subject to any preferential dividend
rights of any series of Preferred Stock then outstanding.
(4) Liquidation. Upon the dissolution or
liquidation of the Corporation, whether voluntary or involuntary, holders of
Common Stock will be entitled to receive all assets of the Corporation
available for distribution to stockholders of the Corporation, subject to any
preferential rights of any series of Preferred Stock then outstanding.
(b) PREFERRED STOCK
(1) Issuance. Preferred Stock may be issued
from time to time in one or more series, each of which series shall have such
terms as are set forth herein and in any resolution or resolutions providing
for the issue of such series as may be adopted by the board of directors as
hereinafter provided. Any shares of Preferred Stock that may be redeemed,
purchased or acquired by the Corporation may be reissued except as otherwise
expressly provided in this Certificate of Incorporation or provided by law.
(2) Single Class. Different series of Preferred
Stock shall not be construed to constitute different classes of capital stock
for the purposes of voting by classes unless expressly provided.
(3) Authority of Board. Authority is hereby
expressly granted to the board of directors to provide for the issuance of
Preferred Stock from time to time in one or more series, and in connection
with the creation of any such series, to determine and fix such voting
powers, full or limited, or no voting powers, and such designations,
preferences and relative participating, optional or other special rights
thereof, and qualifications, limitations or restrictions applicable thereto,
as shall be stated and expressed in such resolutions, all to the full extent
now or hereafter permitted by the General Corporation Law of the State of
Delaware. Without limiting the generality of the foregoing, a resolution or
resolutions providing for issuance of any series of Preferred Stock may
provide for dividend rights, conversion rights,
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redemption privileges and liquidation preferences applicable to such series
and may provide that such series shall rank superior, equal or junior to the
Preferred Stock of any other series, in each case except as otherwise
expressly provided in this Certificate of Incorporation or as provided by
law. Except as otherwise provided in this Certificate of Incorporation, no
vote of holders of Common Stock or holders of Preferred Stock shall be a
prerequisite to the designation or issuance of any shares of any series of
Preferred Stock authorized by and complying with the conditions of this
Certificate of Incorporation.
FIFTH: Stockholders of the Corporation may not take any action by
written consent in lieu of a meeting. Business transacted at any special
meeting of stockholders shall be limited to matters relating to the purpose
or purposes stated in the notice of the general meeting.
SIXTH: The following provisions shall apply with respect to the
board of directors of the Corporation:
(a) NUMBER OF DIRECTORS
The number of directors shall be fixed from time to time by, or
in the manner provided in, the by-laws of the Corporation or any certificate
of designation with respect to a series of Preferred Stock, provided that in
no event shall the number of directors be less than two.
(b) ELECTION OF DIRECTORS
Elections of directors need not be by written ballot unless
otherwise provided in the by-laws of the Corporation.
(c) CLASSES OF DIRECTORS
The board of directors shall be divided into three classes,
consisting of Class I, Class II and Class III. No class of directors shall
have more than one director more than any other class. If a fraction is
contained in the quotient arrived at by dividing the designated number of
directors by three, then, if such fraction is one-third, the extra director
shall be a member of Class I, and if such fraction is two-thirds, one of the
extra directors shall be a member of Class I and one of the extra directors
shall be a member of Class II, except as otherwise may be provided from time
to time by the board of directors.
(d) TERMS OF OFFICE
Each director shall serve for a term ending on the date of the
third annual meeting following the annual meeting at which such director was
elected; provided, that each initial director in Class I shall serve for a
term ending on the date of the annual meeting of stockholders in 1999, each
initial director in Class II shall serve for a term ending on the date of the
annual meeting of stockholders in 2000 and each initial director in Class III
shall serve for a term ending
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on the date of the annual meeting of stockholders in 2001 and provided
further that the term of each director shall be subject to the election and
qualification of a successor to such director and to the earlier death,
resignation or removal of such director.
(e) ALLOCATION OF DIRECTORS AMONG CLASSES UPON CHANGES
IN AUTHORIZED NUMBER OF DIRECTORS
In the event of any increase or decrease in the authorized number
of directors, (1) each director then serving shall continue as a director of
the class of which such director is a member and (2) the newly created or
eliminated directorships resulting from such increase or decrease shall be
apportioned by the board of directors among the three classes of directors so
as to ensure that no one class has more than one director more than any other
class. To the extent possible, consistent with the foregoing, any newly
created directorships shall be added to those classes whose terms of office
are to expire at the latest dates following such allocation and any newly
eliminated directorships shall be subtracted from those classes whose terms
of offices are to expire at the earliest dates following such allocation,
except as otherwise may be provided from time to time by the board of
directors.
(f) REMOVAL
Directors may be removed only for cause by the affirmative vote
of the holders of at least two-thirds of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote.
SEVENTH: No director shall be personally liable to the Corporation
or to any of its stockholders for monetary damages arising out of such
director's breach of fiduciary duty as a director of the Corporation, except
to the extent that the elimination or limitation of such liability is not
permitted by the General Corporation Law of the State of Delaware, as the
same exists or may hereafter be amended. No amendment to or repeal of the
provisions of this Article SEVENTH shall deprive any director of the
Corporation of the benefit of the provisions of this Article SEVENTH with
respect to any act or failure to act of any director occurring prior to such
amendment or repeal.
EIGHTH: The following provisions shall apply with respect to the
indemnification of, and advancement of expenses to, certain parties as set
forth below:
(a) INDEMNIFICATION
(1) Proceedings Other than by or in the Right of
the Corporation. The Corporation shall indemnify each person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the
Corporation), by reason of the fact that such person is or was, or has agreed
to become, a director or officer of the
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Corporation, or is or was serving or has agreed to serve, at the request of
the Corporation, as a director, officer or trustee of, or in a similar
capacity with, another corporation (including any partially or wholly owned
subsidiary of the Corporation), partnership, joint venture, trust or other
enterprise (including any employee benefit plan) (each of such persons being
referred to as an "Indemnitee"), or by reason of any action alleged to have
been taken or omitted in such capacity, against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by the Indemnitee or on the Indemnitee's behalf in
connection with such action, suit or proceeding and any appeal therefrom, if
(A) the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the
Corporation and (B) with respect to any criminal action or proceeding, the
Indemnitee had no reasonable cause to believe the Indemnitee's conduct was
unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Indemnitee
did not act in good faith, did not act in a manner that the Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the
Corporation or, with respect to any criminal action or proceeding, did not
have reasonable cause to believe that the Indemnitee's conduct was unlawful.
Notwithstanding anything to the contrary in this Article EIGHTH, except as
set forth in Section (c)(2) of this Article EIGHTH, the Corporation shall not
indemnify an Indemnitee seeking indemnification in connection with a
proceeding (or part thereof) initiated by the Indemnitee unless the
initiation thereof was approved by the board of directors of the Corporation.
(2) Proceedings by or in the Right of the
Corporation. The Corporation shall indemnify any Indemnitee who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in the Corporation's favor by reason of the fact that the Indemnitee
is or was, or has agreed to become, a director or officer of the Corporation,
or is or was serving as a director, officer or trustee of, or in a similar
capacity with, another corporation (including any partially or wholly owned
subsidiary of the Corporation), partnership, joint venture, trust or other
enterprise (including any employee benefit plan), or by reason of any action
alleged to have been taken or omitted in such capacity, against all expenses
(including attorneys' fees) and amounts paid in settlement actually and
reasonably incurred by the Indemnitee or on the Indemnitee's behalf in
connection with such action, suit or proceeding and any appeal therefrom, if
the Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
except that no indemnification shall be made in respect of any claim, issue
or matter as to which the Indemnitee shall have been adjudged to be liable to
the Corporation unless and only to the extent that the Court of Chancery of
Delaware shall determine upon application that, despite the adjudication of
such liability but in view of all the circumstances of the case, the
Indemnitee is fairly and reasonably entitled to indemnity for such expenses
(including attorneys' fees) that the Court of Chancery of the State of
Delaware shall deem proper.
(3) Expenses of Successful Indemnitee.
Notwithstanding any other
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provision of this Article EIGHTH, to the extent that an Indemnitee has been
successful, on the merits or otherwise (including a disposition without
prejudice), in defense of any action, suit or proceeding referred to in
Section (a)(1) or (2) of this Article EIGHTH, or in defense of any claim,
issue or matter therein, or on appeal from any such action, suit or
proceeding, the Indemnitee shall be indemnified against all expenses
(including attorneys' fees) actually and reasonably incurred by the
Indemnitee or on the Indemnitee's behalf in connection therewith. Without
limiting the foregoing, if any action, suit or proceeding is disposed of, on
the merits or otherwise (including a disposition without prejudice), without
(A) the disposition being adverse to the Indemnitee, (B) an adjudication that
the Indemnitee was liable to the Corporation, (C) a plea of guilty or nolo
contendere by the Indemnitee, (D) an adjudication that the Indemnitee did not
act in good faith and in a manner the Indemnitee reasonably believed to be
in, or not opposed to, the best interests of the Corporation, and (E) with
respect to any criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to believe the Indemnitee's conduct was unlawful, the
Indemnitee shall be considered for the purposes hereof to have been wholly
successful with respect thereto.
(4) Partial Indemnification. If any Indemnitee
is entitled under any provision of this Section (a) to indemnification by the
Corporation for a portion, but not all, of the expenses (including attorneys'
fees), judgments, fines or amounts paid in settlement actually and reasonably
incurred by the Indemnitee or on the Indemnitee's behalf in any appeal
therefrom, the Corporation shall indemnify the Indemnitee for the portion of
such expenses (including attorneys' fees), judgments, fines or amounts paid
in settlement to which the Indemnitee is entitled.
(b) ADVANCEMENT OF EXPENSES
Subject to Section (c)(2) of this Article EIGHTH, in the event
that the Corporation does not assume a defense pursuant to Section (c)(1) of
this Article EIGHTH of any action, suit, proceeding or investigation of which
the Corporation receives notice under this Article EIGHTH, any expenses
(including attorneys' fees) incurred by an Indemnitee in defending a civil or
criminal action, suit, proceeding or investigation or any appeal therefrom
shall be paid by the Corporation in advance of the final disposition of such
matter; provided, however, that the payment of such expenses incurred by an
Indemnitee in advance of the final deposition of such matter shall be made
only upon receipt of an undertaking by or on behalf of the Indemnitee to
repay all amounts so advanced in the event that it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified by the
Corporation as authorized in this Article EIGHTH. Any such undertaking by an
Indemnitee shall be accepted without reference to the financial ability of
the Indemnitee to make such repayment.
(c) PROCEDURES
(1) Notification and Defense of Claim. As a
condition precedent to any
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Indemnitee's right to be indemnified, the Indemnitee must promptly notify the
Corporation in writing of any action, suit, proceeding or investigation
involving the Indemnitee for which indemnity will or may be sought. With
respect to any action, suit, proceeding or investigation of which the
Corporation is so notified, the Corporation will be entitled to participate
therein at its own expense and/or to assume the defense thereof at its own
expense, with legal counsel reasonably acceptable to the Indemnitee; provided
that the Corporation shall not be entitled, without the consent of the
Indemnitee, to assume the defense of any claim brought by or in the right of
the Corporation or as to which counsel for the Indemnitee shall have
reasonably concluded that there may be a conflict of interest or position on
any significant issue between the Corporation and the Indemnitee in the
conduct of the defense of such claim. After notice from the Corporation to
the Indemnitee of its election so to assume such defense, the Corporation
shall not be liable to the Indemnitee for any legal or other expenses
subsequently incurred by the Indemnitee in connection with such claim, other
than as provided in this Paragraph (1). The Indemnitee shall have the right
to employ the Indemnitee's own counsel in connection with such claim, but the
fees and expenses of such counsel incurred after notice from the Corporation
of its assumption of the defense thereof shall be at the expense of the
Indemnitee unless (A) the employment of counsel by the Indemnitee has been
authorized by the Corporation, (B) counsel to the Indemnitee has reasonably
concluded that there may be a conflict of interest or position on any
significant issue between the Corporation and the Indemnitee in the conduct
of the defense of such action or (C) the Corporation has not in fact employed
counsel to assume the defense of such action, in each of which cases the fees
and expenses of counsel for the Indemnitee shall be at the expense of the
Corporation except as otherwise expressly provided by this Article EIGHTH.
(2) Requests and Payment. In order to obtain
indemnification or advancement of expenses pursuant to this Article EIGHTH,
an Indemnitee shall submit to the Corporation a written request therefor,
which request shall include documentation and information as is reasonably
available to the Indemnitee and is reasonably necessary to determine whether
and to what extent the Indemnitee is entitled to indemnification or
advancement of expenses. Any such indemnification or advancement of expenses
shall be made promptly, and in any event within sixty days after receipt by
the Corporation of the written request of the Indemnitee, unless with respect
to requests under Section (a)(1), (a)(2) or (b) of this Article EIGHTH, the
Corporation determines, by clear and convincing evidence, within such
sixty-day period, that any Indemnitee did not meet the applicable standard of
conduct set forth in Section (a)(1) or (a)(2) of this Article EIGHTH. Such
determination shall be made in each instance by (A) a majority vote of the
directors of the Corporation consisting of persons who are not at that time
parties to the action, suit or proceeding in question ("disinterested
directors"), even though less than a quorum, (B) a majority vote of a quorum
of the outstanding shares of capital stock of all classes entitled to vote
for directors, which quorum shall consist of stockholders who are not at that
time parties to the action, suit, proceeding or investigation in question,
(C) independent legal counsel (who may be regular legal counsel to the
Corporation), or (D) a court of competent jurisdiction.
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(3) Remedies. The right of an Indemnitee to
indemnification or advancement of expenses pursuant to this Article EIGHTH
shall be enforceable by the Indemnitee in any court of competent jurisdiction
if the Corporation denies, in whole or in part, a request of an Indemnitee in
accordance with the preceding Paragraph (2) or if no disposition thereof is
made within the sixty-day period referred to in the preceding Paragraph (2).
Unless otherwise provided by law, the burden of proving that an Indemnitee is
not entitled to indemnification or advancement of expenses pursuant to this
Article EIGHTH shall be on the Corporation. Neither the failure of the
Corporation to have made a determination prior to the commencement of such
action that indemnification is proper in the circumstances because the
Indemnitee has met any applicable standard of conduct, nor an actual
determination by the Corporation pursuant to the preceding Section (c)(2)
that the Indemnitee has not met such applicable standard of conduct, shall be
a defense to the action or create a presumption that the Indemnitee has not
met the applicable standard of conduct. The Indemnitee's expenses (including
attorneys' fees) incurred in connection with successfully establishing the
Indemnitee's right to indemnification, in whole or in part, in any such
proceeding shall also be indemnified by the Corporation.
(d) RIGHTS NOT EXCLUSIVE
The right of an Indemnitee to indemnification and advancement of
expenses pursuant to this Article EIGHTH shall not be deemed exclusive of any
other rights to which the Indemnitee may be entitled under any law (common or
statutory), agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in the Indemnitee's official capacity and as to
action in any other capacity while holding office for the Corporation, and
shall continue as to an Indemnitee who has ceased to serve in the capacity
with respect to which the Indemnitee's right to indemnification or
advancement of expenses accrued, and shall inure to the benefit of the
estate, heirs, executors and administrators of the Indemnitee. Nothing
contained in this Article EIGHTH shall be deemed to prohibit, and the
Corporation is specifically authorized to enter into, agreements with
officers and directors providing indemnification rights and procedures
supplemental to those set forth in this Article EIGHTH. The Corporation may,
to the extent authorized from time to time by its board of directors, grant
indemnification rights to other employees or agents of the Corporation or
other persons serving the Corporation and such rights may be equivalent to,
or greater or less than, those set forth in this Article EIGHTH. In addition,
the Corporation may purchase and maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the
Corporation or another corporation (including any partially or wholly owned
subsidiary of the Corporation), partnership, joint venture, trust or other
enterprise (including any employee benefit plan) against any expense,
liability or loss incurred by such a person in any such capacity, or arising
out of such person's status as such, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or
loss under the General Corporation Law of the State of Delaware.
(e) SUBSEQUENT EVENTS
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(1) Amendments of Article or Law. No amendment,
termination or repeal of this Article EIGHTH or of any relevant provisions of
the General Corporation Law of the State of Delaware or any other applicable
law shall affect or diminish in any way the rights of any Indemnitee to
indemnification under the provisions of this Article EIGHTH with respect to
any action, suit, proceeding or investigation arising out of or relating to
any actions, transactions or facts occurring prior to the effective date of
such amendment, termination or repeal. If the General Corporation Law of the
State of Delaware is amended after adoption of this Article EIGHTH to expand
further the indemnification permitted to any Indemnitee, then the Corporation
shall indemnify the Indemnitee to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as so amended, without the need for
any further action with respect to this Article EIGHTH.
(2) Merger or Consolidation. If the Corporation is
merged into or consolidated with another corporation and the Corporation is
not the surviving corporation, the surviving corporation shall assume the
obligations of the Corporation under this Article EIGHTH with respect to any
action, suit, proceeding or investigation arising out of or relating to any
actions, transactions or factors occurring prior to the date of such merger
or consolidation.
(f) INVALIDATION
If any or all of the provisions of this Article EIGHTH shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
in connection with any action, suit, proceeding or investigation, whether
civil, criminal or administrative, including an action by or in the right of
the Corporation, to the fullest extent permitted by any applicable provision
of this Article EIGHTH that shall not have been invalidated and to the
fullest extent permitted by the General Corporation Law of the State of
Delaware or any other applicable law.
(g) DEFINITIONS
Unless defined elsewhere in this Certificate of Incorporation,
any term used in this Article EIGHTH and defined in Section 145(h) or (i) of
the General Corporation Law of the State of Delaware shall have the meaning
ascribed to such term in such Section.
NINTH: In furtherance of and not in limitation of powers conferred
by statute, it is further provided that:
(a) AMENDMENT OF BY-LAWS
Subject to the limitations and exceptions, if any, contained in
the by-laws of the Corporation, the by-laws may be adopted, amended or
repealed by the board of directors.
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(b) LOCATION OF CORPORATE BOOKS
Subject to any applicable requirements of the General Corporation
Law of the State of Delaware, the books of the Corporation may be kept
outside the State of Delaware at such location or locations as may be
designated from time to time by the board of directors or in the by-laws of
the Corporation.
TENTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them or between the Corporation
and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a
summary way of the Corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for the Corporation
under Section 291 of Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers appointed for the
Corporation under Section 279 of Title 8 of the Delaware Code, order a
meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of the Corporation, as the case may be, to be summoned
in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as
the case may be, agree to any compromise or arrangement and to any
reorganization of the Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been
made, be binding on all the creditors or class of creditors, and/or on all
the stockholders or class of stockholders, of the Corporation, as the case
may be, and also on the Corporation.
ELEVENTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by the General Corporation Law of the
State of Delaware and this Certificate of Incorporation, and all rights
conferred upon stockholders herein are granted subject to this reservation.
Notwithstanding any provision of law, any other provision of this Certificate
of Incorporation or any provision of the by-laws of the Corporation, the
affirmative vote of the holders of at least seventy-five percent of the
shares of capital stock of the Corporation issued and outstanding and
entitled to vote shall be required to amend or repeal, or to adopt any
provision inconsistent with, any provision of Article FIFTH, Article SIXTH or
this Article ELEVENTH.
IN WITNESS WHEREOF, the undersigned, being the duly elected and
acting President of Outlook Sports Technology, Inc., does hereby declare that
this Amended and Restated Certificate of Incorporation has been duly adopted
by the board of directors and the stockholders of this Corporation in
accordance with the provisions of Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware. The undersigned does hereby affirm,
under the penalties of perjury, that this instrument is the act and deed of
the Corporation and the facts herein set forth are true and correct. I have
accordingly hereunto set my hand this day of June, 1998.
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OUTLOOK SPORTS TECHNOLOGY, INC.
By: _____________________________
Jim G. Dodrill II, President
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EXHIBIT 3.2
OUTLOOK SPORTS TECHNOLOGY, INC.
BY-LAWS
SECTION 1. CERTIFICATE OF INCORPORATION AND BY-LAWS
1.1 Conflicts. In the event of any conflict between the provisions of
these by-laws and the provisions of the certificate of incorporation of Outlook
Sports Technology, Inc. (the "Corporation"), the provisions of the certificate
of incorporation shall govern.
1.2 References. In these by-laws, references to the certificate of
incorporation and by-laws mean the provisions of the certificate of
incorporation of the Corporation and these by-laws, respectively, as are from
time to time in effect.
SECTION 2. OFFICES
2.1 Registered Office. The registered office of the Corporation shall
be as fixed in the certificate of incorporation of the Corporation.
2.2 Other Offices. The Corporation may also have offices at such other
places within or without the State of Delaware as the board of directors may
from time to time determine or the business of the Corporation may require.
SECTION 3. STOCKHOLDERS
3.1 Location of Meetings. All meetings of stockholders shall be held at
such places within or without the State of Delaware as shall 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 principal office of the Corporation. Any adjourned session of any meeting
shall be held at the place designated in the vote of adjournment.
3.2 Annual Meeting. The annual meeting of stockholders shall be held at
10 a.m. on the second Wednesday in May in each year (unless that day shall be a
legal holiday at the location where the meeting is to be held, in which case the
meeting shall be held at 10 a.m. on the next succeeding day that is not a legal
holiday) or at such other time and date as shall be designated from time to time
by the board of directors or the President, at which the stockholders shall
elect a board of directors and transact such other business as may be required
by law or these by-laws or as may otherwise properly come before the meeting.
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3.3 Special Meeting in Place of Annual Meeting. If the election of
directors shall not be held on the day designated by these by-laws, the board of
directors shall cause the election to be held as soon thereafter as convenient.
To that end, if the annual meeting is not held on the day provided in Subsection
3.2 or if the election of directors is not held at the annual meeting, a special
meeting of the stockholders may be held in place of such omitted meeting or
election and any business transacted or election held at such special meeting
shall have the same effect as if transacted or held at the annual meeting. In
such case all references in these by-laws to the annual meeting of the
stockholders, or to the annual election of directors, shall be deemed to refer
to or include such special meeting. Any such special meeting shall be called,
and the purposes thereof shall be specified in the call, as provided in
Subsection 3.4.
3.4 Notice of Annual Meeting. Written notice of the annual meeting
stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting. Such notice may specify the business
to be transacted and actions to be taken at such meeting. No action shall be
taken at such meeting unless such notice is given, or unless waiver of such
notice is given by the holders of outstanding capital stock having not less than
the minimum number of votes necessary to take such action at a meeting at which
all shares entitled to vote thereon were voted. Prompt notice of all actions
taken in connection with such waiver of notice shall be given to all
stockholders not present or represented at such meeting. If mailed, notice shall
be deemed to have been given when the notice is deposited in the United States
mail, postage prepaid, directed to the stockholder at the stockholder's address
as it appears on the records of the Corporation. An affidavit of the mailing or
other means of giving any notice of any stockholders' meeting, executed by the
Secretary, any Assistant Secretary or any transfer agent of the Corporation
giving the notice, shall be prima facie evidence of the giving of such notice.
3.5 Other Special Meetings. Special meetings of the stockholders may be
called for any purpose or purposes by the Chairman of the Board, the Chief
Executive Officer (or if there is no Chief Executive Officer, the President),
the board of directors or at the request in writing of the holders of at least
ten percent of all capital stock of the Corporation issued and outstanding and
entitled to vote at such meeting. 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.
3.6 Notice of Special Meeting. Unless otherwise prescribed by law,
written notice of each special meeting stating the place, date and hour of the
meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten nor more than sixty days before the date of the meeting
to each stockholder entitled to vote at such meeting. If mailed, notice shall be
deemed to have been given when the notice is deposited in the United States
mail, postage prepaid, directed to the stockholder at the stockholder's address
as it appears on the records of the Corporation. An affidavit of the mailing or
other means of giving any notice of any stockholders' meeting, executed by the
Secretary, any Assistant Secretary or any transfer
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agent of the Corporation giving the notice, shall be prima facie evidence of the
giving of such notice.
3.7 Stockholder List. The officer who has charge of the stock record
books of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
3.8 Quorum of Stockholders. The holders of a majority of the shares of
capital stock of the Corporation issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business except as
otherwise required by law, the certificate of incorporation or these by-laws.
Except as otherwise provided by law, no stockholder present at a meeting may
withhold shares owned by such stockholder from the quorum count by declaring
those shares to be absent from the meeting.
3.9 Adjournment. Any meeting of stockholders may be adjourned from time
to time to any other time and place at which a meeting of stockholders may be
held under these by-laws, which time and place shall be announced at the
meeting, by a majority of votes cast upon the question, whether or not a quorum
is present, or, if no stockholder is present, by any officer entitled to preside
at or to act as secretary of such meeting. If a quorum shall be present or
represented at any adjourned meeting, any business may be transacted that might
have been transacted at the original meeting. If the adjournment is for less
than thirty days and the time and place of the adjourned meeting are announced
at the meeting at which adjournment is taken, it shall not be necessary to
notify any stockholder of the adjournment unless after the adjournment a new
record date is fixed for the adjourned meeting. If the adjournment is for more
than thirty days, the time and place of the adjourned meeting are not announced
at the meeting at which adjournment is taken, or a new record date is fixed for
the adjourned meeting after the adjournment, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
3.10 Proxy Representation. Any stockholder may authorize another person
or persons to act for such stockholder by proxy in all matters in which the
stockholder is entitled to participate, whether by waiving notice of any
meeting, objecting to or voting or participating at a meeting, or expressing
consent or dissent without a meeting. Every proxy must be signed by the
stockholder or the stockholder's attorney-in-fact. No proxy shall be voted or
acted upon after three years from its date unless such proxy provides for a
longer period. Except as provided by
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law, a revocable proxy shall be deemed revoked if the stockholder is present at
the meeting for which the proxy was given. 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.
3.11 Inspectors. The directors or the person presiding at the meeting
may, but need not, appoint one or more inspectors of election and any substitute
inspectors to act at the meeting or any adjournment thereof. Before entering
upon the discharge of the duties of inspector, each inspector shall take and
sign an oath to execute faithfully the duties of inspector at such meeting with
strict impartiality and according to the best of the inspector's ability. The
inspectors, if any, shall (a) determine the number of shares of capital stock
outstanding and the voting power of each, the shares of capital stock
represented at the meeting, the existence of a quorum and the validity and
effect of proxies, and (b) receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine the result,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the person presiding at the meeting, the
inspectors shall make a report in writing of any challenge, question or matter
determined by them and execute a certificate of any fact found by them.
3.12 Action by Vote. When a quorum is present at any meeting, whether
an original or adjourned session, a plurality of the votes properly cast for
election to any office shall elect to such office and a majority of the votes
(or if there are two or more classes of capital stock entitled to vote as
separate classes, then in the case of each such class, the holders of a majority
of the capital stock of that class) properly cast upon any question other than
an election to an office shall decide such 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.
3.13 Nomination of Directors. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors. Nomination for election to the board of directors 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 Subsection 3.13. 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
State mail, postage prepaid, to the Secretary, and received not less than sixty
days nor more than ninety days prior to such meeting; provided, however, that if
less than seventy days' notice or prior public disclosure of the date of the
meeting is given to stockholders, such nomination shall have been mailed or
delivered to the
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Secretary not later than the close of business on the tenth 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 capital stock of the
Corporation 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 number of shares of each class and
series of capital stock of the Corporation 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. The chairman of
the meeting may, if the facts warrant, determine and declare at the meeting that
a nomination was not made in accordance with the foregoing procedure, and if the
chairman should so determine, the chairman shall so declare at the meeting and
the defective nomination shall be disregarded.
3.14 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 Subsection 3.13 must be complied with, and 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 days nor more than ninety days
prior to the meeting; provided, however, that in the event that less than
seventy days' notice or prior public disclosure of the date of the meeting is
given or made to stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the tenth day following the
date on which such notice of the date 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 number
of shares of each class and series of capital stock of the Corporation
beneficially owned by the 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 Subsection 3.14 and except that
any stockholder proposal that complied with Rule
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14a-8 (or any successor provision) 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 Subsection 3.14. The chairman of the meeting shall, if the facts
warrant, determine and declare at the meeting that business was not properly
brought before the meeting in accordance with the provisions of this Subsection
3.14, and if the chairman should so determine, the chairman shall so declare at
the meeting that any such business not properly brought before the meeting shall
not be transacted.
3.15 Organization. The Chairman of the Board or, in the absence
thereof, the Chief Executive Officer (or if there is no Chief Executive Officer,
the President) shall call meetings of stockholders to order and shall 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 shall act as secretary at all meetings of
the stockholders, but in the absence of the Secretary at any meeting of the
stockholders, the chairman may appoint any person to act as secretary of the
meeting.
3.16 Action Without Meetings. Stockholders may not take any
action by written consent in lieu of a meeting.
SECTION 4. DIRECTORS
4.1 Powers. The business of the Corporation shall be managed by or
under the direction of the board of directors, which shall have and may exercise
all the powers of the Corporation and do all such lawful acts and things as are
not by law, the certificate of incorporation or these by-laws directed or
required to be exercised or done by the stockholders.
4.2 Number. The number of directors that shall constitute the board of
directors shall be determined by resolution of the board of directors, but in no
event shall be less than two. The number of directors may be decreased at any
time and from time to time by vote of 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 the stockholders, except as
provided in Subsection 4.3 of these by-laws. Directors need not be stockholders.
4.3 Vacancies. Newly created directorships resulting from any increase
in the number of directors and other vacancies may be filled by vote of a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director. When one or more directors shall resign from the board
of directors, effective at a future date, a majority of the directors then in
office, including those who have resigned, shall have power to fill such vacancy
or vacancies, the vote or action by writing thereon to take effect when such
resignation or resignations shall become effective. The directors shall have and
may exercise all their powers notwithstanding the existence of one or more
vacancies in their number, subject to any requirements of law or of the
certificate of incorporation or of these by-laws as to the number of
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directors required for a quorum or for any vote or other actions. A director
elected to fill a vacancy shall be elected for the unexpired term of such
director's 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 election of the class for which such director shall have been chosen,
subject to the election and qualification of any such director's successor and
to any such director's earlier death, resignation or removal.
4.4 Classes of Directors. The board of directors shall be divided into
three classes, consisting of Class I, Class II and Class III. No class of
directors shall have more than one director more than any other class. If a
fraction is contained in the quotient arrived at by dividing the designated
number of directors by three, then, if such fraction is one-third, the extra
director shall be a member of Class I, and if such fraction is two-thirds, one
of the extra directors shall be a member of Class I and one of the extra
directors shall be a member of Class II, except as otherwise may be provided
from time to time by the board of directors.
4.5 Terms of Office. Each director shall serve for a term ending on the
date of the third annual meeting following the annual meeting at which such
director was elected; provided that each initial director in Class I shall serve
for a term ending on the date of the annual meeting of stockholders in 1999,
each initial director in Class II shall serve for a term ending on the date of
the annual meeting of stockholders in 2000 and each initial director in Class
III shall serve for a term ending on the date of the annual meeting of
stockholders in 2001 and provided further that the term of each director shall
be subject to the election and qualification of a successor to such director and
to the earlier death, resignation or removal of such director.
4.6 Committees. The board of directors may, by vote of a majority of
the whole board: (a) designate, change the membership of or terminate the
existence of any committee or committees, each committee to consist of one or
more of the directors; (b) designate one or more directors as alternate members
of any such committee who may replace any absent or disqualified member at any
meeting of the committee; and (c) determine the extent to which each such
committee shall have and may exercise the powers and authority of the board of
directors in the management of the business and affairs of the Corporation,
including the power to authorize the seal of the Corporation to be affixed to
all papers that require it and the power and authority to declare dividends or
to authorize the issuance of capital stock; excepting, however, such powers that
by law, the certificate of incorporation or these by-laws the board is
prohibited from so delegating. In the absence or disqualification of any member
of a committee and such member's alternate, if any, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another member of the board of
directors to act at the meeting in the place of any such absent or disqualified
member. Except as the board of directors may otherwise determine, any committee
may make rules for the conduct of its business, but unless otherwise provided by
the board or such rules, its business shall be conducted as nearly as may be in
the same manner as is provided
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by these by-laws for the conduct of business by the board of directors. Each
committee shall keep regular minutes of its meetings and report the same to
the board of directors upon request.
4.7 Regular Meetings. Regular meetings of the board of directors may be
held without call or notice at such times and at such places, within or without
the State of Delaware, as the board of directors may from time to time
determine, provided that any director who was absent when such determination was
made shall be given notice of the determination. A regular meeting of the
directors may be held without call or notice immediately after and at the same
place as an annual meeting of the stockholders.
4.8 Special Meetings. Special meetings of the board of directors may be
held at such times and at such places, within or without the State of Delaware,
designated in a notice of the meeting, when called by the Chairman of the Board
or the Chief Executive Officer (or if there is no Chief Executive Officer, the
President) or by any director, reasonable notice thereof being given to each
director by the Secretary, the officer or any of the directors calling the
meeting.
4.9 Notice. It shall be reasonable and sufficient notice to a director:
(a) to send notice by mail at least forty-eight hours, or by telegram, telex,
facsimile or hand at least twenty-four hours, before the meeting, or directed to
the director at the director's usual or last known business or residence
address; or (b) to give notice to the director in person or by telephone at
least twenty-four hours before the meeting. Notice of a meeting need not be
given to any director if a written waiver of notice, executed by the director
before or after the meeting, is filed with the records of the meeting, or to any
director who attends the meeting without protesting prior thereto or at its
commencement the lack of notice to the director. Neither notice of a meeting nor
a waiver of a notice need specify the purposes of the meeting.
4.10 Quorum. Except as may be otherwise provided by law, the
certificate of incorporation or these by-laws, at any meeting of the board of
directors a majority of the directors then in office shall constitute a quorum.
A quorum shall not in any case be less than one-third of the total number of
directors constituting the whole board. 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, subject to the
preceding sentence. Any meeting may be adjourned from time to time by a majority
of the directors present at the meeting, whether or not a quorum is present, and
the meeting may be held as adjourned without further notice.
4.11 Action by Vote. Except as may be otherwise provided by law, the
certificate of incorporation or these by-laws, when a quorum is present at any
meeting the vote of a majority of the directors present shall be the act of the
board of directors.
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4.12 Action Without a Meeting. Any action required or permitted to be
taken at any meeting of the board of directors or of any committee thereof may
be taken without a meeting if all the members of the board or such committee, as
the case may be, consent to the action in writing, and the written consent is
filed with the records of the meetings of the board or such committee. Such
consent shall be treated for all purposes as the act of the board or of such
committee, as the case may be.
4.13 Participation in Meetings by Conference Telephone. Members
of the board of directors or of any committee thereof may participate in a
meeting of such board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Such participation shall constitute presence in
person at such meeting.
4.14 Compensation. The board of directors shall have the authority to
fix from time to time the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the board of directors
and the performance of their responsibilities as directors and may be paid a
fixed sum for attendance at each meeting of the board of directors and/or a
stated salary as director. No such payment shall preclude any director from
serving the Corporation or its parent or subsidiary corporations in any other
capacity and receiving compensation therefor. The board of directors may also
allow compensation for members of special or standing committees for service on
such committees.
4.15 Removal or Resignation of Directors. Directors may be removed only
for cause by the affirmative vote of the holders of at least two-third of the
shares of capital stock of the Corporation issued, outstanding and entitled to
vote. Any director may resign at any time by delivering a resignation in writing
to the Chief Executive Officer (or if there is no Chief Executive Officer, the
President) or the Secretary or to a meeting of the board of directors. Such
resignation shall be effective upon receipt unless specified to be effective at
some other time and without in either case the necessity of its being accepted,
unless the resignation shall so state. No director resigning and (except where a
right to receive compensation shall be expressly provided in a duly authorized
written agreement with the Corporation) no director removed shall have any right
to receive compensation as such director for any period following the director's
resignation or removal, or any right to damages on account of such removal,
whether the director's compensation be by the month or by the year or otherwise;
unless in the case of a resignation, the directors, or in the case of removal,
the body acting on the removal, shall in their or its discretion provide for
compensation.
SECTION 5. NOTICES
5.1 Form of Notice. Whenever, under the provisions of law, or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, such notice may be given by mail, addressed to
such director or stockholder, at the director's or stockholder's address as it
appears on the records of the Corporation, with postage thereon
9
prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Unless written notice by mail is
required by law, written notice may also be given by telegram, cable, facsimile,
commercial delivery service, telex or similar means, addressed to such director
or stockholder at the address thereof as such address appears on the records of
the Corporation, in which case such notice shall be deemed to be given when
delivered into the control of the persons charged with effecting such
transmission, the transmission charge to be paid by the Corporation or the
person sending such notice and not by the addressee. Oral notice or other
in-hand delivery (in person or by telephone) shall be deemed given at the time
it is actually given.
5.2 Waiver of Notice. Whenever notice is required to be given under the
provisions of law, the certificate of incorporation or these by-laws, a written
waiver thereof, signed by the person entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to notice. 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 meeting of the stockholders, directors or members of a
committee of the board of directors need be specified in any written waiver of
notice.
SECTION 6. OFFICERS AND AGENTS
6.1 Enumeration; Qualification. The officers of the Corporation shall
consist of a President, a Treasurer, a Secretary and such other officers, if
any, as the board of directors from time to time may in its discretion elect or
appoint, including a Chairman of the Board, a Chief Executive Officer, a Chief
Financial Officer, a General Counsel and one or more Vice Presidents, Assistant
Treasurers and Assistant Secretaries. Any officer may be, but none need be, a
director or stockholder. Any two or more offices may be held by the same person.
Any officer may be required by the board of directors to secure the faithful
performance of the officer's duties to the Corporation by giving bond in such
amount and with sureties or otherwise as the board of directors may determine.
6.2 Election. The board of directors shall choose a President, a
Secretary and a Treasurer at the first meeting of the board following each
annual meeting of stockholders. Other officers may be appointed by the board of
directors at such meeting, at any other meeting or by written consent. At any
time or from time to time, the directors may delegate to any officer their power
to elect or appoint any other officer or any agents.
6.3 Tenure. Except as otherwise provided by law, the certificate of
incorporation or these by-laws, each officer shall hold office until a successor
is elected and qualified, unless a shorter period shall have been specified in
the vote approving the officer's election or appointment, or until the officer
sooner dies, resigns or is removed. Each agent of the
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Corporation shall retain authority at the pleasure of the directors, or the
officer by whom the agent was appointed or by the officer who then holds agent
appointive power
6.4 Powers. Subject to law, the certificate of incorporation and these
by-laws, each officer shall have, in addition to the duties and powers herein
set forth, such duties and powers as
are commonly incident to the officer's office and such additional duties and
powers as the board of directors may from time to time designate.
6.5 President. If there is no Chief Executive Officer, the President of
the Corporation shall be the chief executive officer of the Corporation. The
President shall, when and in the absence of a Chairman of the Board, preside at
all meetings of the stockholders and at all meetings of the board of directors.
The President may sign all authorized contracts in the name of the Corporation,
shall have general charge and supervision of the business of the Corporation,
subject to the control of the board of directors and shall be the medium of
communication of the board of directors and any board committee of reports,
proposals and recommendations for their respective consideration or action. The
President may sign certificates representing capital stock of the Corporation as
provided in Subsection 7.1, and the President shall do and perform such other
duties as may be assigned from time to time by the board of directors. All
officers shall report to the President or according to the President's direction
in respect of any matters within the President's jurisdiction. The board of
directors may delegate from time to time certain or all of the aforesaid powers
and responsibilities to the Chief Executive Officer, if any.
6.6 Vice President. The Vice President, or if there shall be more than
one, the Vice Presidents in the order determined by the board of directors,
shall, in the absence or disability of the President, perform the duties and
exercise the powers of the President and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe. If a Vice President is designated as the chief operating officer of
the Corporation, then such Vice President shall be deemed to be the most senior
Vice President of the Corporation.
6.7 Secretary and Assistant Secretaries.
(a) The Secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the stockholders and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the board of directors, and
shall perform such other duties as may be prescribed by the board of directors
or the Chief Executive Officer (or if there is no Chief Executive Officer, the
President), under whose supervision the Secretary shall be. The Secretary shall
keep in safe custody the seal of the Corporation and, when authorized by the
board of directors, affix the same to any instrument requiring it and, when so
affixed, it shall be attested by his signature or by the signature of an
Assistant Secretary.
(b) The Assistant Secretary, or if there be more than one, the
Assistant
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Secretaries in the order determined by the board of directors, shall, in the
absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
6.8 Treasurer and Assistant Treasurers.
(a) If there is no Chief Financial Officer, the Treasurer
shall be the chief financial officer of the Corporation. The Treasurer shall
have the custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the board of directors. The Treasurer shall disburse funds of the Corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the Chief Executive Officer (or if there is
no Chief Executive Officer, the President) and the board of directors, at its
regular meetings, or when the board of directors so requires, an account of all
such officer's transactions as Treasurer and of the financial condition of the
Corporation. If required by the board of directors, the Treasurer shall give the
Corporation a bond (which shall be renewed as and when required) in such sum and
with such surety and sureties as shall be satisfactory to the board of directors
for the faithful performance of the duties of the Treasurer's office and for the
restoration of the Corporation, in case of the Treasurer's death, resignation or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in the Treasurer's possession or under the Treasurer's control
belonging to the Corporation. The board of directors may delegate from time to
time certain or all of the aforesaid powers and responsibilities to the Chief
Financial Officer, if any.
(b) The Assistant Treasurer, or if there shall be more than
one, the Assistant Treasurers in the order determined by the board of directors,
shall in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
6.9 Resignation and Removal. Any officer may resign at any time by
delivering a resignation in writing to the Chief Executive Officer (or if there
is no Chief Executive Officer, the President), the Secretary or a meeting of the
board of directors. Such resignation shall be effective upon receipt unless
specified to be effective at some other time, and without in any case the
necessity of its being accepted unless the resignation shall so state. The board
of directors may, by a majority vote, at any time remove any officer either with
or without cause. The board of directors may at any time terminate or modify the
authority of any agent. No officer resigning and (except where a right to
receive compensation shall be expressly provided in a duly authorized written
agreement with the Corporation) no officer removed shall have any right to any
compensation as such officer for any period following the officer's resignation
or removal, or any right to damages on account of such removal, whether the
officer's compensation be by the
12
month or by the year or otherwise, unless in the case of a resignation, the
directors, or in the case of removal, the body acting on the removal, shall in
their or its discretion provide for compensation.
6.10 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 the President, the
Treasurer and the Secretary. Each such successor shall hold office for the
unexpired term of the predecessor and until a successor is elected and
qualified, or in each case until such officer sooner dies, resigns or is
removed.
SECTION 7. CAPITAL STOCK
7.1 Stock Certificates. Each stockholder shall be entitled to a
certificate stating the number and the class and the designation of the class
and series, if any, of the shares held by the stockholder, in such form as
shall, in conformity to law, the certificate of incorporation and the by-laws,
be prescribed from time to time by the board of directors. Such certificate
shall be signed by, or in the name of the Corporation by, (a) the Chief
Executive Officer, the President or a Vice President and (b) the Chief Financial
Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary. Any of the signatures on the certificate may be facsimiles. In case
an officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed on such certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if the signatory were such
officer, transfer agent, or registrar at the time of its issue.
7.2 Stock Issuances. 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.
7.3 Stock Transfers. Subject to any restrictions with respect to the
transfer of shares of capital stock, shares of capital stock may be transferred
on the books of the Corporation by the surrender to the Corporation or its
transfer agent of the certificate therefor properly endorsed or accompanied by a
written assignment and power of attorney properly executed, with necessary
transfer stamps affixed, and with such proof of the authenticity of signature as
the board of directors or the transfer agent of the Corporation may reasonably
require. Except as may be otherwise required by law, the certificate of
incorporation or these by-laws, the Corporation shall be entitled to treat the
record holder of capital stock as shown on its books as the owner of such
capital stock for all purposes, including the payment of dividends and the right
to receive notice and to vote or to give any consent with respect thereto and to
be held liable for such calls and assessments, if any, as may lawfully be made
thereon, regardless of any transfer, pledge or other disposition of such capital
stock until the shares have been properly transferred on the books of
13
the Corporation. It shall be the duty of each stockholder to notify the
Corporation of the stockholder's post office address.
7.4 Lost, Stolen or Destroyed Certificates. The board of
directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
board of directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or such owner's legal representative, to advertise
the same in such manner as it shall require and/or to give the Corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
7.5 Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
adjournment thereof or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty days nor less than ten days before the date
of such meeting, nor more than sixty days prior to any other action to which
such record date relates. 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. If no record date is fixed:
(a) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held;
(b) the record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no prior
action by the board of directors is necessary, shall be the day on which the
first written consent is expressed; and
(c) 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.
SECTION 8. GENERAL PROVISIONS
8.1 Fiscal Year. The fiscal year of the Corporation shall begin on the
first day of February in each calendar year and shall end on the last day of
January next following, unless otherwise determined by the board of directors.
14
8.2 Seal. The board of directors may, by resolution, adopt a corporate
seal. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the word "Delaware." The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. The seal may be altered from time to time by the board
of directors.
8.3 Dividends. Dividends upon the capital stock of the Corporation may
be declared by the board of directors at any regular or special meeting or by
written consent, pursuant to law. Dividends may be paid in cash, property or
shares of the capital stock, subject to the provisions of the certificate of
incorporation. Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve 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 directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
8.4 Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
8.5 Voting of Securities. Except as the directors may otherwise
designate, the Chief Executive Officer, the President, the Chief Financial
Officer, the Treasurer or the General Counsel may waive notice of, and act as,
or appoint any person or persons to act as, proxy or attorney-in-fact for the
Corporation (with or without power of substitution) at any meeting of
stockholders of any other corporation or organization of which the Corporation
holds securities.
8.6 Evidence of Authority. A certificate of the Secretary, an Assistant
Secretary or a temporary Secretary as to any action taken by the stockholders,
the board of directors or a committee thereof, or any officer or representative
of the Corporation shall be conclusive evidence of such action as to all persons
who rely on the certificate in good faith.
8.7 Interested Parties.
(a) No contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more
of the Corporation's 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 committee thereof that authorizes the contract or
transaction, or solely because the vote of any such person is counted for such
purpose, if:
15
(1) the material facts as to the relationship or
interest of the director or officer and the contract or transaction are
disclosed or known to the board of directors or the committee, and the board or
committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even though the
disinterested directors do not constitute a quorum;
(2) the material facts as to the relationship or
interest of the director or officer and the contract or transaction are
disclosed or 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 thereof or the stockholders.
(b) 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 thereof that authorizes the contract or transaction.
8.8 Construction; Definitions. Unless the context requires otherwise,
the general provisions, rules of construction and definitions in the General
Corporation Law of Delaware shall govern the construction of these by-laws.
Without limiting the generality of this provision, the singular number includes
the plural, the plural number includes the singular and the term "person"
includes both a corporation and a natural person. The term "including" as used
herein shall not be construed so as to exclude any other thing not referred to
or described..
8.9 Provisions Additional to Provisions of Law. All restrictions,
limitations, requirements and other provisions of these by-laws shall be
construed, insofar as possible, as supplemental and additional to all provisions
of law applicable to the subject matter thereof and shall be fully complied with
in addition to such provisions of law unless such compliance shall be illegal.
8.10 Provisions Contrary to Provisions of Law. Any section, subsection,
subdivision, sentence, clause or phrase of these by-laws that, upon being
construed in the manner provided in Section 8.9 of these by-laws, shall be
contrary to or inconsistent with any applicable provision of law, shall not
apply so long as said provision of law shall remain in effect. Any such result
shall not affect the validity or applicability of any other portion of these
by-laws, it being hereby declared that these by-laws would have been adopted
irrespective of the fact that any one or more sections, subsections,
subdivisions, sentences, clauses or phrases of these by-laws is or are illegal.
16
SECTION 9. AMENDMENT OF BY-LAWS
9.1 By 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.
9.2 By Stockholders. These by-laws may be altered, amended or
repealed or new by-laws may be adopted by the affirmative vote of the holders of
a majority of the shares of capital stock of the Corporation issued, outstanding
and entitled to vote at any regular or special meeting of stockholders, provided
notice of such alteration, amendment, repeal or adoption of new by-laws shall
have been stated in the notice of such regular or special meeting.
Notwithstanding the foregoing or 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 seventy-five percent of the shares of the capital stock of the Corporation
issued, outstanding and entitled to vote shall be required to amend or repeal,
or to adopt any provision inconsistent with, Subsections 3.5, 3.13, 3.14 and
3.16, Section 4 or Section 9 of these by-laws.
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Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘SB-2’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 7/7/98 | | | | | | | None on these Dates |
| | 2/8/98 | | 1 |
| List all Filings |
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