Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 88 545K
2: EX-3.1 Certificate of Incorporation of the Registrant 12 43K
3: EX-3.2 By-Laws of the Registrant 16 61K
4: EX-4.1 Form of Common Stock Certificate 2 9K
5: EX-5.1 Opinion of Shearman & Sterling 2 10K
6: EX-10.2 Form of Corporate Agreement 24 90K
7: EX-10.3 Form of Management Services Agreement 11 41K
8: EX-10.4 Form of Tax Sharing Agreement 10 34K
9: EX-23.1 Consent of Ernst & Young LLP 1 6K
10: EX-27.1 Financial Data Schedule 2 8K
EX-3.2 — By-Laws of the Registrant
EX-3.2 | 1st Page of 16 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
---|
EXHIBIT 3.2
BY-LAWS
OF
MIPS TECHNOLOGIES, INC.
ARTICLE I
OFFICES
The registered office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware. The Corporation may also
have one or more offices at such other places, either inside or outside of the
State of Delaware, as the Board of Directors may from time to time determine or
as the business of the Corporation may require. The books and records of the
Corporation may be kept (subject to the provisions of the laws of the State of
Delaware) at any place, either inside or outside of the State of Delaware, as
from time to time may be determined by the Board of Directors.
ARTICLE II
STOCKHOLDERS
Section 1. Place of Meetings. Meetings of stockholders (whether annual or
---------- ------------------
special) shall be held at such place, either inside or outside of the State of
Delaware, as the Board of Directors shall from time to time determine.
Section 2. Annual Meeting. The annual meeting of the stockholders of the
---------- ---------------
Corporation shall be held on such date and at such time as may be fixed by
resolution of the Board of Directors.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
---------- -----------------
Corporation's Restated Certificate of Incorporation, as amended from time to
time (the "Charter"), and subject to any preferential rights of any outstanding
series of Preferred Stock (as defined in the Charter), special meetings of
stockholders of the Corporation for any purpose or purposes may be called only
by [the Chairman of the Board of Directors, the President], or, at the request
in writing of a majority of the Board of Directors, any officer. Such request
shall state the purpose or purposes of the proposed meeting. In addition, prior
to the Trigger Date (as defined in the Charter), the Corporation shall call a
special meeting of stockholders of the Corporation promptly upon request by
Silicon Graphics, Inc., a Delaware corporation, or any of its affiliates, in
each case if such entity is a stockholder of the Corporation.
2
Section 4. Notice of Meetings. Except as otherwise provided by law,
---------- -------------------
written or printed notice, stating the place, day and hour of the meeting and
the purpose or purposes for which the meeting is called shall be delivered by
the Corporation not less than ten (10) calendar days nor more than sixty (60)
calendar days before the date of the meeting, either personally or by mail, to
each stockholder of record entitled to vote at such meeting. Meetings may be
held without notice if all stockholders entitled to vote are present, or if
notice is waived by those not present in accordance with Section 2 of Article X
of these By-laws. Any previously scheduled meeting of the stockholders may be
postponed, and any special meeting of the stockholders may be canceled, by
resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
Section 5. Notice of Stockholder Business and Nominations.
---------- -----------------------------------------------
(a) Annual Meetings of Stockholders.
(i) Nominations of persons for election to the Board of Directors and
the proposal of business to be considered by the stockholders may be made
at an annual meeting of stockholders (A) pursuant to the Corporation's
notice of meeting delivered pursuant to Section 4 of this Article II, (B)
by or at the direction of the Board of Directors, (C) by any stockholder of
the Corporation who was a stockholder of record at the time of the giving
of the notice provided for in this Section 5, who is entitled to vote at
the meeting and who complies with the notice procedures set forth in this
Section 5, or (D) prior to the Trigger Date, by Silicon Graphics, Inc., a
Delaware corporation, or any of its affiliates that is a stockholder of the
Corporation.
(ii) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (C) of paragraph
(a)(i) of this Section 5, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other
business must be a proper subject for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than sixty (60) days nor more
than ninety (90) days prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date
of the annual meeting is advanced by more than thirty (30) days or delayed
by more than sixty (60) days from such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the
ninetieth day prior to such annual meeting and not later than the close of
business on the later of the sixtieth day prior to such annual meeting or
the tenth day following the day on which public announcement of the date of
such meeting is first made by the Corporation. For purposes of determining
whether a stockholder's notice shall have been delivered in a timely manner
for the annual meeting of stockholders in 1999, the first anniversary of
the previous year's meeting shall be deemed to be
3
________, 1999. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving
of a stockholder's notice as described above. Such stockholder's notice
shall set forth (A) as to each person whom the stockholder proposes to
nominate for election or reelection as a director all information relating
to such person that is required to be disclosed in solicitations of proxies
for election of directors in an election contest, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and Rule 14a-11 thereunder
(including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (B) as to
any other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (C) as
to the stockholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made, (1) the name and address
of such stockholder, as they appear on the Corporation's books, and of such
beneficial owner and (2) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner.
(iii) Notwithstanding anything in the second sentence of paragraph
(a)(ii) of this Section 5 to the contrary, in the event that the number of
directors to be elected to the Board of Directors is increased and there is
no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors made by
the Corporation at least seventy (70) days prior to the first anniversary
of the preceding year's annual meeting, a stockholders's notice required by
this Section 5 shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth day following
the day on which such public announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting pursuant to Section
4 of this Article II. Nominations of persons for election to the Board of
Directors may be made at a special meeting of stockholders at which directors
are to be elected pursuant to the Corporation's notice of meeting (i) by or at
the direction of the Board of Directors, (ii) by any stockholder of the
Corporation who was a stockholder of record at the time of the giving of the
notice provided for in this Section 5, who is entitled to vote at the meeting
and who complies with the notice procedures set forth in this Section 5, or
(iii) prior to the Trigger Date, by Silicon Graphics,
4
Inc., a Delaware corporation, or any of its affiliates that is a stockholder of
the Corporation. In the event that the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of
Directors, any stockholder may nominate such person or persons (as the case may
be), for election to the Board of Directors, if the stockholder's notice
required by paragraph (a)(ii) of this Section 5 shall be delivered to the
Secretary of the Corporation at the principal executive offices of the
Corporation not earlier than the ninetieth day prior to such special meeting and
not later than the close of business on the later of the sixtieth day prior to
such special meeting or the tenth day following the day on which public
announcement by the Corporation is first made of the date of the special meeting
and of the nominees proposed by the Board of Directors to be elected at such
meeting.
(c) General.
(i) Only persons who are nominated in accordance with the procedures
set forth in this Section 5 shall be eligible to serve as directors and
only such business shall be conducted at a meeting of stockholders as shall
have been brought before the meeting in accordance with the procedures set
forth in this Section 5. Except as otherwise provided by law, the Charter
or these By-laws, the chairman of the meeting shall have the power and duty
to determine whether a nomination or any business proposed to be brought
before the meeting was made in accordance with this Section 5 and, if any
proposed nomination or business is not in compliance with this Section 5,
to declare that such defective proposal or nomination shall be disregarded.
(ii) For purposes of this Section 5, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section 5, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 5. Nothing in this Section 5 shall be
deemed to affect any rights (A) of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under
the Exchange Act or (B) of the holders of any series or Preferred Stock to
elect directors.
Section 6. Quorum. Except as otherwise provided by law or in the Charter,
---------- -------
the holders of a majority of the voting power of all outstanding shares of the
Corporation entitled to vote generally in the election of directors (the "Voting
Stock"), represented in person or by proxy, shall constitute a quorum at a
meeting of stockholders, except that when specified
5
business is to be voted on by a class or series of stock voting as a class, the
holders of a majority of the shares of such class or series shall constitute a
quorum of such class or series for the transaction of such business. At any
meeting of stockholders at which a quorum is not present, the person serving as
chairman of the meeting or the holders of a majority in interest of the
stockholders present in person or by proxy and who are entitled to vote on every
matter that is to be voted on without regard to class at such meeting may
adjourn the meeting from time to time. No notice of the time and place of
adjourned meetings need by given except as required by law.
Section 7. Organization and Conduct of Business. The Chairman of the
---------- -------------------------------------
Board of Directors shall act as chairman of meetings of the stockholders. The
Board of Directors may designate any other officer or director of the
Corporation to act as chairman of any meeting in the absence of the Chairman of
the Board of Directors, and the Board of Directors may further provide for
determining who shall act as chairman of any stockholder's meeting in the
absence of the Chairman of the Board of Directors and such designee. The person
serving as chairman of any meeting of stockholders shall determine the order of
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him or her in order.
The Secretary of the Corporation shall act as secretary of all meetings of
the stockholders, but in the absence of the Secretary the presiding officer may
appoint any other person to act as secretary of any meeting.
Section 8. Proxies and Voting. At any meeting of stockholders, every
---------- -------------------
stockholder entitled to vote may vote in person or by proxy authorized by an
instrument executed in writing (or in such manner prescribed by the General
Corporation Law of the State of Delaware) by the stockholder, or by such
person's duly authorized attorney in fact.
Election of directors at all meeting of the stockholders at which directors
are to be elected shall be by ballot, and, subject to the rights of the holders
of any series of Preferred Stock to elect directors, a plurality of the votes
cast thereat shall elect directors. Except as otherwise provided by law, the
Charter and these By-laws and subject to the rights of the holders of any series
of Preferred Stock, in all matters other than the election of directors, the
affirmative vote of a majority of the voting power of the shares present in
person or represented by proxy at the meeting and entitled to vote on the matter
shall be the act of the stockholders.
Section 9. Inspectors of Election. The Board of Directors may, and to the
---------- -----------------------
extent required by law, shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at the meeting, decide upon the
qualification of voters, count the votes, decide the results and make a written
report thereof in accordance with the General Corporation Law
6
of the State of Delaware. The Board of Directors may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspector(s) shall have the duties prescribed by law.
Section 10. No Stockholder Action by Written Consent. Effective as of the
----------- -----------------------------------------
Trigger Date, any action required or permitted to be taken by the stockholders
of the Corporation must be effected at a duly called annual or special meeting
of such holders and may not be effected by any consent in writing by such
holders.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Number and Term of Office. Subject to the rights, if any, of
---------- --------------------------
holders of preferred stock of the Corporation, the number of directors of the
Corporation shall be fixed from time to time exclusively by resolution of the
Board of Directors adopted by the affirmative vote of directors constituting
not less than a majority of the Whole Board, but shall consist of not more
than ten (10) nor less than three (3) directors. The directors, other than
those who may be elected by the holders of any class or series of preferred
stock of the Corporation, shall be classified, with respect to the time they
severally hold office, into three classes, as nearly equal in number as
possible, one class to be initially elected for a term expiring at the annual
meeting of stockholders to be held in 1999, another class to be initially
elected for a term expiring at the annual meeting of stockholders to be held
in 2001, and another class to be initially elected for a term expiring at the
annual meeting of stockholders to be held in 2001, with each director to serve
until his or her successor shall have been elected and shall have qualified.
At each succeeding annual meeting of stockholders, directors elected to
succeed those directors whose terms then expire shall be elected for a term of
office to expire at the third succeeding annual meeting of stockholders after
their election, with each director to serve until his or her successor shall
have been elected and shall have qualified.
For purposes of these By-laws, the term "Whole Board" shall mean the total
number of directors that the Corporation would have if there were no vacancies
on the Corporation's Board of Directors.
Section 2. Meetings. Regular meetings of the Board of Directors may be
---------- ---------
held at such place, either inside or outside of the State of Delaware, and at
such time, as may from time to time be designated by the Chairman of the Board
of Directors or resolution of the Board of Directors or as may be specified in
the call of any meeting. An annual meeting of the Board of
7
Directors shall be held on the same day as, and as soon as practicable
following, the annual meeting of stockholders or at such other time or place as
shall be determined by the Board of Directors at its regular meeting next
preceding said annual meeting of stockholders.
Special meetings of the Board of Directors may be held at any time on the
call of the Chairman of the Board of Directors, the President or a majority of
the Board of Directors then in office. The person or persons authorized to call
special meetings of the Board of Directors may fix the time and place of the
meetings. Meetings may be held at any time or place without notice if all the
directors are present or if those not present waive notice of the meeting in
writing.
Section 3. Notice of Meetings. Notice of the time and place of meetings
---------- -------------------
of the Board of Directors (excepting the annual meeting of directors) shall be
given to each director by the Secretary or an Assistant Secretary of the
Corporation by (i) mailing or sending via courier such notice not later than
during the second day preceding the day on which such meeting is to be held, or
(ii) by (a) sending a facsimile transmission or other form of electronic
communication containing such notice or (b) delivering such notice personally or
by telephone, in each case, not later than during the first day preceding the
day on which such meeting is to be held. Unless otherwise stated in the notice
thereof, any and all business may be transacted at any meeting.
Section 4. Quorum and Organization of Meetings. Subject to Section 5 of
---------- ------------------------------------
this Article III, a whole number of directors equal to at least a majority of
the Whole Board shall constitute a quorum for the transaction of business, but
if at any meeting of the Board of Directors there shall be less than a quorum
present, a majority of the directors present may adjourn the meeting from time
to time without further notice. The act of a majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors. The directors present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
directors to leave less than a quorum.
Meetings shall be presided over by the Chairman of the Board of Directors
or, in his or her absence, by such other person as the Board of Directors may
designate or the members present may select.
Section 5. Vacancies. Subject to the rights, if any, of holders of
---------- ----------
preferred stock of the Corporation, and unless the Board of Directors otherwise
determines, any vacancy occurring in the Board of Directors caused by death,
resignation, increase in number of directors or otherwise may be filled by the
affirmative vote of a majority of the remaining members of the Board of
Directors, though less than a quorum, or by a sole remaining director, and
except as otherwise provided by law, any such vacancy may not be filled by the
stockholders of the Company. Any director elected in accordance with the
preceding sentence
8
shall hold office for the remainder of the full term of the class of directors
in which the new directorship was created or the vacancy occurred and until such
director's successor shall have been duly elected and qualified. No decrease in
the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
Section 6. Powers. In addition to the powers and authorities by these By-
---------- -------
laws expressly conferred upon them, the Board of Directors shall have and may
exercise all such powers of the Company and do all such lawful acts and things
that are not by statute, the Charter or these By-laws directed or required to be
exercised or done by the stockholders.
Section 7. Reliance upon Books, Reports and Records. Each director, each
---------- -----------------------------------------
member of any committee designated by the Board of Directors and each officer,
in the performance of his or her duties, shall be fully protected in relying in
good faith upon such information, opinions, reports or statements presented to
the Corporation by any of its officers or employees, or by committees of the
Board of Directors, or by any other person, as to matters such director, member
or officer, as the case may be, reasonably believes are within such person's
professional or expert competence and who has been selected with reasonable care
by the Board of Directors or by any such committee, or in relying in good faith
upon other records of the Corporation.
Section 8. Compensation of Directors. Directors, as such, may receive,
---------- --------------------------
pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including, without limitation,
services as members of committees of the Board of Directors; provided, however,
that nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 9. Meetings by Means of Conference Telephone. Unless otherwise
---------- ------------------------------------------
provided by the Charter or these By-laws, members of the Board of Directors, or
any committee designated by the Board of Directors, may participate in a meeting
of the Board of Directors or such committee by means of a conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting pursuant to
this Section 8 shall constitute presence in person at such meeting.
Section 10. Actions by Written Consent. Any action required or permitted
----------- ---------------------------
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
ARTICLE IV
9
COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. Committees of the Board of Directors. There are hereby
---------- -------------------------------------
established as committees of the Board of Directors [an Executive Committee,] an
Audit Committee and a Compensation Committee, each of which shall have the
powers and functions set forth in Sections 2 and 3 [and 4] hereof, respectively,
and such additional powers as may be delegated to it by the Board of Directors.
The Board of Directors may from time to time establish additional standing
committees or special committees of the Board of Directors, each of which shall
have such powers and functions as may be delegated to it by the Board of
Directors. The Board of Directors may abolish any committee established by or
pursuant to this Section 1 as it may deem advisable. Each such committee shall
consist of two or more directors, the exact number being determined from time to
time by the Board of Directors. Designations of the chairman and members of each
such committee, and, if desired, a vice chairman and alternates for members,
shall be made by the Board of Directors. In the absence or disqualification of
any member of any committee and any alternate member in his or her place, the
member or members of the committee present at the meeting and not disqualified
from voting whether or not he or she or they constitute a quorum, may by
unanimous vote appoint another member of the Board of Directors to act at the
meeting in the place of the absent or disqualified member. Each committee shall
have a secretary who shall be designated by its chairman. A vice chairman of a
committee shall act as the chairman of the committee in the absence or
disability of the chairman. Nothing herein shall be deemed to prevent the Board
of Directors from appointing one or more committees consisting in whole or in
part of persons who are not directors of the Corporation; provided, however,
that no such committee shall have or may exercise any authority of the Board of
Directors.
Section 2. Audit Committee. The Audit Committee shall select and engage,
---------- ----------------
on behalf of the Corporation, independent public accountants to (a) audit the
books of account and other corporate records of the Corporation and (b) perform
such other duties as the Audit Committee may from time to time prescribe. The
Audit Committee shall transmit financial statements certified by such
independent public accountants to the Board of Directors after the close of each
fiscal year. The selection of independent public accountants for each fiscal
year shall be made in advance of the annual meeting of stockholders in such
fiscal year and shall be submitted for ratification or rejection at such
meeting. The Audit Committee shall confer with such accountants and review and
approve the scope of the audit of the books of account and other corporate
records of the Company. The Audit Committee shall have the power to confer with
and direct the officers of the Corporation to the extent necessary to review the
internal controls, accounting practices, financial structure and financial
reporting of the Corporation. From time to time the Audit Committee shall
report to and advise the Board of Directors concerning the results of its
consultation and review and such other matters relating to the internal
controls, accounting practices, financial structure and financial reporting of
the Corporation as the Audit Committee believes merit review by the Board of
Directors. The
10
Audit Committee also shall perform such other functions and exercise such other
powers as may be delegated to it from time to time by the Board of Directors.
Section 3. Compensation Committee. The Compensation Committee shall fix
---------- -----------------------
from time to time the salaries of members of the Board of Directors who are
officers or employees of the Corporation and of all Senior Executive Vice
Presidents, Executive Vice Presidents and Senior Vice Presidents of the
Corporation. It also shall perform such functions as may be delegated to it
under the provisions of any bonus, supplemental compensation, special
compensation or stock option plan of the Corporation.
Section 4. Executive Committee.
---------- --------------------
Section 5. Rules and Procedures. Each committee may fix its own rules and
---------- ---------------------
procedures and shall meet at such times and places as may be provided by such
rules, by resolution of the committee or by call of the chairman or vice
chairman of such committee. Notice of meeting of each committee, other than of
regular meetings provided for by its rules or resolutions, shall be given to
committee members. The presence of a majority of its members, but not less than
two, shall constitute a quorum of any committee, and all questions shall be
decided by a majority vote of the members present at the meeting. All action
taken at each committee meeting shall be recorded in minutes of the meeting.
Section 6. Application of Article. Whenever any provision of any other
---------- -----------------------
document relating to any committee of the Corporation named therein shall be in
conflict with any provision of this Article IV, the provisions of this Article
IV shall govern, except that if such other document shall have been approved by
the stockholders or by the Board of Directors, the provisions of such other
document shall govern.
ARTICLE V
OFFICERS
Section 1. Officers. The officers of the Company shall include a Chairman
---------- ---------
of the Board of Directors, who shall be chosen from among the directors, a
President, a Chief Financial Officer, one or more Executive Vice Presidents, one
or more Senior Vice Presidents, one or more Vice Presidents, a Treasurer, a
General Counsel and a Secretary, each of whom shall be elected by the Board of
Directors to hold office until his or her successor shall have been chosen and
shall have qualified. The Board of Directors, the Chairman of the Board of
Directors and the Chief Executive Officer may elect or appoint one or more
Controllers, one or more Assistant Vice Presidents, one or more Assistant
Treasurers, one or more Assistant General Counsels and one or more Assistant
Secretaries, and the Board of Directors may elect or appoint such other officers
as it may deem necessary, or desirable, each of whom shall have such authority,
shall perform such duties and shall hold office for such term as may be
11
prescribed by the Board of Directors from time to time. Any person may hold at
one time more than one office, excepting that the duties of the President and
Secretary shall not be performed by one person.
Section 2. Chairman of the Board of Directors. The Chairman of the Board
---------- -----------------------------------
of Directors shall be the Chief Executive Officer of the Corporation. Subject
to the provisions of these By-laws and to the direction of the Board of
Directors, he or she shall have ultimate authority for decisions relating to the
general management and control of the affairs and business of the Corporation
and shall perform all other duties and exercise all other powers commonly
incident to the position of Chief Executive Officer or which are or from time to
time may be delegated to him or her by the Board of Directors, or which are or
may at any time be authorized or required by law. He or she shall preside at
all meetings of the Board of Directors. He or she shall make reports to the
Board of Directors and stockholders, and shall see that all orders and
resolutions of the Board of Directors and any committee thereof are carried into
effect. The Chairman of the Board may also serve as President, if so elected by
the Board of Directors. The Board of Directors may also elect a Vice-Chairman
to act in the place of the Chairman upon his or her absence or inability to act.
Section 3. President. Subject to the provisions of these By-laws and to
---------- ----------
the direction of the Board of Directors and of the Chief Executive Officer, the
President shall have such powers and shall perform such duties as from time to
time may be delegated to him or her by the Board of Directors or by the Chief
Executive Officer, or which are or may at any time be authorized or required by
law.
Section 4. Executive Vice Presidents, Senior Vice Presidents and Vice
---------- ----------------------------------------------------------
Presidents. Each of the Executive Vice Presidents, each of the Senior Vice
-----------
Presidents and each of the other Vice Presidents shall have such powers and
shall perform such duties as may be delegated to him or her by the Board of
Directors, the Chairman of the Board of Directors, the President or such other
officer or officers to whom he or she is directly responsible.
Section 5. Treasurer and Assistant Treasurer. The Treasurer, subject to
---------- ----------------------------------
the direction of the Board of Directors, shall have the care and custody of all
funds and securities of the Corporation. When necessary or proper he or she
shall endorse on behalf of the Corporation, for collection, checks, notes and
other obligations, and shall deposit all funds of the Corporation in such banks
or other depositaries as may be designated by the Board of Directors or by such
officers or employees as may be authorized by the Board of Directors so to
designate. He or she shall perform all acts incident to the office of
Treasurer, subject to the control of the Board of Directors and such other
officer or officers to whom he or she is directly responsible. He or she may be
required to give a bond for the faithful discharge of his or her duties, in such
sum and upon such conditions as the Board of Directors may require.
12
At the request and direction of the Treasurer or, in the case of his or her
absence or inability to act, any Assistant Treasurer may act in his or her
place. In the case of the death of the Treasurer, or in the case of his or her
absence or inability to act without having designated an Assistant Treasurer to
act temporarily in his or her place, the Assistant Treasurer so to perform the
duties of the Treasurer shall be designated by the Chairman of the Board of
Directors, the President or an Executive Vice President.
Section 6. Secretary and Assistant Secretary. The Secretary shall keep
---------- ----------------------------------
full and accurate minutes of the meetings of the stockholders and of the Board
of Directors in the proper record book of the Corporation provided therefor,
and, when required, the minutes of meetings of the committees, and shall be
responsible for the custody of all such minutes. Subject to the direction of
the Board of Directors, the Secretary shall have custody of the stock ledgers
and documents of the Corporation. He or she shall have custody of the corporate
seal of the Corporation and shall affix and attest such seal to any instrument
whose execution under seal shall have been duly authorized. He or she shall
give due notice of meetings and, subject to the direction of the Board of
Directors, shall perform all other duties commonly incident to his or her office
or as properly required of him or her by the Chairman of the Board of Directors
and such other officer or officers to whom he or she is directly responsible and
shall enjoy all other powers commonly incident to his or her office.
At the request and direction of the Secretary or, in the case of his or her
absence or inability to act, any Assistant Secretary may act in his or her
place. In the case of the death of the Secretary, or in the case of his or her
absence or inability to act without having designated an Assistant Secretary to
act temporarily in his or her place, the Assistant Secretary or other person so
to perform the duties of the Secretary shall be designated by the Chairman of
the Board of Directors, the President or an Executive Vice President.
Section 7. Assistant Vice Presidents and Other Officers. Each assistant
---------- ---------------------------------------------
vice president and other officers shall perform such duties commonly incident to
his or her office or as properly required of him or her by the Chairman of the
Board of Directors and such other officer or officers to whom he or she is
directly responsible.
Section 8. General Counsel. The General Counsel shall have general
---------- ----------------
supervision of all matters of a legal nature concerning the Corporation. He or
she shall perform all such duties commonly incident to his or her office or as
properly required of him or her by the Chairman of the Board of Directors and
such other officer or officers to whom he or she is directly responsible.
Section 9. Salaries. Salaries of officers, agents or employees shall be
---------- ---------
fixed from time to time by the Board of Directors or by such committee or
committees, or person or persons, if any, to whom such power shall have been
delegated by the Board of Directors. An
13
employment contract, whether with an officer, agent or employee, if expressly
approved or specifically authorized by the Board of Directors, may fix a term of
employment thereunder; and such contract, if so approved or authorized, shall be
valid and binding upon the Corporation in accordance with the terms thereof,
provided that this provision shall not limit or restrict in any way the right of
the Corporation at any time to remove from office, discharge or terminate the
employment of any such officer, agent or employee prior to the expiration of the
term of employment under any such contract.
Section 10. Vacancies. A vacancy in any office filled by election of the
----------- ----------
Board of Directors may be filled by the Board of Directors by the election of a
new officer who shall hold office, subject to the provisions of this Article V,
until the regular meeting of the directors following the next annual meeting of
the stockholders and until his or her successor is elected.
Section 11. Removal or Discharge. Any officer may be removed or
----------- ---------------------
discharged by the Chairman of the Board of Directors at any time excepting an
officer who is also a director. Any officer who also is a director may be
discharged at any time by the Board of Directors.
ARTICLE VI
RESIGNATIONS
Any director or officer of the Corporation, whether elected or appointed,
may resign at any time by giving written notice of such resignation to the
Chairman of the Board of Directors, the President, or the Secretary, and such
resignation shall be deemed effective as of the close of business on the date
said notice is received by the Chairman of the Board of Directors, the
President, or the Secretary, or at such later time as is specified therein. No
formal action shall be required of the Board of Directors or the stockholders to
make any such resignation effective.
ARTICLE VII
CAPITAL STOCK; DIVIDENDS; SEAL
Section 1. Stock Certificates and Transfers. The interest of each
---------- ---------------------------------
stockholder of the Corporation shall be evidenced by certificates for shares of
stock in such form as the appropriate officers of the Corporation may from time
to time prescribe. The shares of the stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof in person or
by such person's attorney, upon surrender for cancellation of certificates for
at least the same number of shares, with an assignment and power of transfer
endorsed thereon or attached thereto, duly executed, with such proof of the
authenticity of the signature as the Corporation or its agents may reasonably
require. The certificates of stock shall be numbered and signed by the Chairman
of the Board of Directors, the President, an Executive
14
Vice President, a Senior Vice President or a Vice President, and also by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary.
Any and all signatures may be facsimiles. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation with the same
effect as if he or she were such officer, transfer agent or registrar at the
date of issue.
Section 2. Lost, Destroyed or Stolen Certificate. Any person claiming a
---------- --------------------------------------
stock certificate in lieu of one lost, destroyed or stolen, shall give the
Corporation an affidavit as to his, her or its ownership of the certificate and
of the facts which go to prove that it has been lost, destroyed or stolen. If
required by the Board of Directors or any financial officer of the Corporation,
he, she or it also shall give the Corporation a bond, in such form as may be
approved by the Board of Directors or such financial officer, sufficient to
indemnify the Corporation against any claim that may be made against it on
account of the alleged loss of the certificate or the issuance of a new
certificate. A new certificate shall be issued upon receipt of such an
affidavit and, if required, upon the giving of such a bond.
Section 3. Record of holder of Shares. The Corporation shall be entitled
---------- ---------------------------
to treat the holder of record of any share or shares as the holder in fact
thereof, and accordingly shall not be bound to recognize any equitable or other
claims to or interest in such shares on the part of any other person, whether or
not it shall have express or other notice thereof, save as expressly provided by
the General Corporation Law of the State of Delaware. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends and to vote as such owner.
Section 4. Dividends. The Board of Directors may from time to time
---------- ----------
declare, and the Corporation may pay, dividends on its outstanding shares of
capital stock in the manner and upon the terms and conditions provided by law
and the Charter.
Section 5. Corporate Seal. The corporate seal shall be in such form as
---------- ---------------
shall from time to time be approved by the Board of Directors. If and when so
authorized by the Board of Directors, a duplicate of the seal may be kept and
used by the Secretary or Treasurer or by any Assistant Secretary or Assistant
Treasurer.
ARTICLE VIII
EXECUTION OF CONTRACTS AND OTHER DOCUMENTS
Section 1. Contracts, etc. Except as otherwise required by law, the
---------- ---------------
Charter or these By-laws, such officers, employees or agents of the Corporation
as shall be specified by the Board of Directors shall sign, in the name and on
behalf of the Corporation, all deeds, bonds, contracts, mortgages and other
instruments or documents, the execution of which shall be
15
authorized by the Board of Directors; and such authority may be general or
confined to specific instances. Except as so authorized by the Board of
Directors, no officer, agent or employee of the Corporation shall have power or
authority to bind the Corporation by any contract or engagement or to pledge,
mortgage, sell or otherwise dispose of its credit or any of its property or to
render it pecuniarily liable for any purpose or in any amount.
Section 2. Checks, Drafts, etc. Except as otherwise provided in these By-
---------- --------------------
laws, all checks, drafts, notes, bonds, bills of exchange or other orders,
instruments or obligations for the payment of money shall be signed by such
officer or officers, employee or employees, or agent or agents, as the Board of
Directors shall by resolution direct. The Board of Directors may, in its
discretion, also provide by resolution for the countersignature or registration
of any or all such orders, instruments or obligations for the payment of money.
Section 3. Proxies. Unless otherwise prescribed by resolution adopted by
---------- --------
the Board of Directors, the Chairman of the Board of Directors, the President or
any Executive Vice President, Senior Vice President or Vice President may from
time to time appoint an attorney or attorneys or agent or agents of the
Corporation, in the name and on behalf of the Corporation, to cast the votes
which the Corporation may be entitled to cast as the holder of stock or other
securities in any other corporation, any of whose stock or other securities may
be held by the Corporation, at meetings of the holders of the stock or other
securities of such other corporation, or to consent in writing, in the name of
the Corporation as such holder, to any action by such other corporation, and may
instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent, and may execute or cause to be executed in the
name and on behalf of the Corporation and under its corporate seal or otherwise,
all such written proxies or other instruments as he or she may deem necessary or
proper in the premises.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Company shall begin the first day of July in each
year.
ARTICLE X
MISCELLANEOUS
Section 1. Notices and Waivers Thereof. Whenever any notice whatever is
---------- ----------------------------
required by these By-laws, the Charter or any of the laws of the State of
Delaware to be given to any stockholder, director or officer, such notice,
except as otherwise provided by the laws of the State of Delaware, may be given
personally or by telephone or be given by facsimile transmission or other form
of electronic communication, addressed to such stockholder at such person's
address as it appears on the stock transfer books of the Corporation, or to such
16
director or officer at his or her Corporation location, if any, or at such
address as appears on the books of the Corporation, or the notice may be given
in writing by depositing the same in a post office, or in a regularly maintained
letter box, or by sending it via courier in a postpaid, sealed wrapper addressed
to such stockholder at such person's address as it appears on the stock transfer
books of the Corporation, or to such director or officer at his or her
Corporation location, if any, or such address as appears on the books of the
Corporation.
Any notice given by facsimile transmission or other form of electronic
communication shall be deemed to have been given when it shall have been
transmitted. Any notice given by mail or courier shall be deemed to have been
given when it shall have been mailed or delivered to the courier.
A waiver of any such notice in writing, including by facsimile
transmission, signed or dispatched by the person entitled to such notice or by
his or her duly authorized attorney, whether before or after the time stated
therein, shall be deemed equivalent to the notice required to be given, and the
presence at any meeting of any person entitled to notice thereof shall be deemed
a waiver of such notice as to such person.
Section 2. Audits. The accounts, books and records of the Corporation
---------- -------
shall be audited upon the conclusion of each fiscal year by an independent
certified public accountant selected by the Board of Directors, and it shall be
the duty of the Board of Directors to cause such audit to be done annually.
ARTICLE XI
AMENDMENTS
These By-laws may be altered, amended or repealed, and new By-laws may be
adopted (a) at any annual or special meeting of stockholders by the affirmative
vote of the holders of a majority of the voting power of the stock issued and
outstanding and entitled to vote thereat, provided, however, that any proposed
alteration, amendment or repeal of, or the adoption of any By-law inconsistent
with, Sections 3, 5 or 10 of Article II or Sections 1 or 5 of Article III of the
By-laws by the stockholders shall require the affirmative vote of the holders of
at least 80% of the voting power of all Voting Stock then outstanding, voting
together as a single class, and provided, further, however, that, in the case of
any such stockholder action at a special meeting of stockholders, notice of the
proposed alteration, amendment, repeal or adoption of the new By-law or By-laws
must be contained in the notice of such special meeting, or (b) by the
affirmative vote of a majority of the Whole Board.
↑Top
Filing Submission 0000929624-98-000795 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Fri., Mar. 29, 5:56:09.1am ET