Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a HTML 2.54M
Business-Combination Transaction
2: EX-1.1 Underwriting Agreement 44 211K
28: EX-3.1(AA) Articles of Incorporation/Organization or By-Laws 9 44K
29: EX-3.1(AB) Articles of Incorporation/Organization or By-Laws 3 26K
30: EX-3.1(AC) Articles of Incorporation/Organization or By-Laws 10 43K
31: EX-3.1(AD) Articles of Incorporation/Organization or By-Laws 4 29K
32: EX-3.1(AE) Articles of Incorporation/Organization or By-Laws 3 30K
33: EX-3.1(AF) Articles of Incorporation/Organization or By-Laws 6 39K
34: EX-3.1(AG) Articles of Incorporation/Organization or By-Laws 11 39K
35: EX-3.1(AH) Articles of Incorporation/Organization or By-Laws 4 27K
36: EX-3.1(AI) Articles of Incorporation/Organization or By-Laws 4 31K
37: EX-3.1(AJ) Articles of Incorporation/Organization or By-Laws 21 69K
38: EX-3.1(AK) Articles of Incorporation/Organization or By-Laws 6 34K
39: EX-3.1(AL) Articles of Incorporation/Organization or By-Laws 5 40K
40: EX-3.1(AM) Articles of Incorporation/Organization or By-Laws 5 32K
41: EX-3.1(AN) Articles of Incorporation/Organization or By-Laws 4 31K
42: EX-3.1(AO) Articles of Incorporation/Organization or By-Laws 5 36K
43: EX-3.1(AP) Articles of Incorporation/Organization or By-Laws 3 31K
44: EX-3.1(AQ) Articles of Incorporation/Organization or By-Laws 4 29K
45: EX-3.1(AR) Articles of Incorporation/Organization or By-Laws 3 26K
46: EX-3.1(AS) Articles of Incorporation/Organization or By-Laws 3 31K
47: EX-3.1(AT) Articles of Incorporation/Organization or By-Laws 9 55K
48: EX-3.1(AU) Articles of Incorporation/Organization or By-Laws 12 52K
49: EX-3.1(AV) Articles of Incorporation/Organization or By-Laws 12 50K
50: EX-3.1(AW) Articles of Incorporation/Organization or By-Laws 7 47K
51: EX-3.1(AX) Articles of Incorporation/Organization or By-Laws 15 47K
52: EX-3.1(AY) Articles of Incorporation/Organization or By-Laws 14 58K
53: EX-3.1(AZ) Articles of Incorporation/Organization or By-Laws 8 40K
3: EX-3.1(B) Articles of Incorporation/Organization or By-Laws 5 35K
54: EX-3.1(BA) Articles of Incorporation/Organization or By-Laws 11 47K
55: EX-3.1(BB) Articles of Incorporation/Organization or By-Laws 19 73K
56: EX-3.1(BC) Articles of Incorporation/Organization or By-Laws 21 62K
57: EX-3.1(BD) Articles of Incorporation/Organization or By-Laws 16 54K
58: EX-3.1(BE) Articles of Incorporation/Organization or By-Laws 9 49K
59: EX-3.1(BF) Articles of Incorporation/Organization or By-Laws 18 58K
60: EX-3.1(BG) Articles of Incorporation/Organization or By-Laws 5 31K
61: EX-3.1(BH) Articles of Incorporation/Organization or By-Laws 3 30K
62: EX-3.1(BI) Articles of Incorporation/Organization or By-Laws 5 32K
63: EX-3.1(BJ) Articles of Incorporation/Organization or By-Laws 9 41K
64: EX-3.1(BK) Articles of Incorporation/Organization or By-Laws 4 30K
65: EX-3.1(BL) Articles of Incorporation/Organization or By-Laws 3 30K
66: EX-3.1(BM) Articles of Incorporation/Organization or By-Laws 4 29K
67: EX-3.1(BN) Articles of Incorporation/Organization or By-Laws 3 30K
68: EX-3.1(BO) Articles of Incorporation/Organization or By-Laws 4 31K
69: EX-3.1(BP) Articles of Incorporation/Organization or By-Laws 5 38K
70: EX-3.1(BQ) Articles of Incorporation/Organization or By-Laws 3 29K
71: EX-3.1(BR) Articles of Incorporation/Organization or By-Laws 3 30K
72: EX-3.1(BS) Articles of Incorporation/Organization or By-Laws 15 47K
4: EX-3.1(C) Articles of Incorporation/Organization or By-Laws 2 26K
5: EX-3.1(D) Articles of Incorporation/Organization or By-Laws 2 26K
6: EX-3.1(E) Articles of Incorporation/Organization or By-Laws 2 26K
7: EX-3.1(F) Exhibit 3.1(G) 3 28K
8: EX-3.1(G) Articles of Incorporation/Organization or By-Laws 9 43K
9: EX-3.1(H) Articles of Incorporation/Organization or By-Laws 10 50K
10: EX-3.1(I) Articles of Incorporation/Organization or By-Laws 17 65K
11: EX-3.1(J) Articles of Incorporation/Organization or By-Laws 1 23K
12: EX-3.1(K) Articles of Incorporation/Organization or By-Laws 2 26K
13: EX-3.1(L) Articles of Incorporation/Organization or By-Laws 3 30K
14: EX-3.1(M) Articles of Incorporation/Organization or By-Laws 3 27K
15: EX-3.1(N) Articles of Incorporation/Organization or By-Laws 6 32K
16: EX-3.1(O) Articles of Incorporation/Organization or By-Laws 2 26K
17: EX-3.1(P) Articles of Incorporation/Organization or By-Laws 16 62K
18: EX-3.1(Q) Articles of Incorporation/Organization or By-Laws 10 44K
19: EX-3.1(R) Articles of Incorporation/Organization or By-Laws 3 29K
20: EX-3.1(S) Articles of Incorporation/Organization or By-Laws 9 41K
21: EX-3.1(T) Articles of Incorporation/Organization or By-Laws 10 45K
22: EX-3.1(U) Articles of Incorporation/Organization or By-Laws 6 38K
23: EX-3.1(V) Articles of Incorporation/Organization or By-Laws 5 30K
24: EX-3.1(W) Articles of Incorporation/Organization or By-Laws 4 32K
25: EX-3.1(X) Articles of Incorporation/Organization or By-Laws 2 25K
26: EX-3.1(Y) Articles of Incorporation/Organization or By-Laws 2 26K
27: EX-3.1(Z) Exhibit 3.1 2 26K
73: EX-3.2(B) Articles of Incorporation/Organization or By-Laws 17 84K
77: EX-4.11 Instrument Defining the Rights of Security Holders 168 680K
78: EX-4.12 Instrument Defining the Rights of Security Holders 6 40K
74: EX-4.5 Instrument Defining the Rights of Security Holders 4 34K
75: EX-4.6 Instrument Defining the Rights of Security Holders 7 46K
76: EX-4.8 Instrument Defining the Rights of Security Holders 6 40K
79: EX-5.1 Opinion re: Legality 5 39K
80: EX-10.2 Material Contract 157 409K
81: EX-12.1 Statement re: Computation of Ratios 2± 26K
82: EX-23.2 Consent of Experts or Counsel 1 23K
83: EX-25.1 Statement re: Eligibility of Trustee HTML 81K
84: EX-99.1 Miscellaneous Exhibit HTML 82K
85: EX-99.2 Miscellaneous Exhibit HTML 37K
86: EX-99.3 Miscellaneous Exhibit HTML 26K
87: EX-99.4 Miscellaneous Exhibit HTML 31K
88: EX-99.5 Miscellaneous Exhibit HTML 30K
EX-3.2(B) — Articles of Incorporation/Organization or By-Laws
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EXHIBIT 3.2(b)
FORM OF BY-LAWS
OF
ADDITIONAL REGISTRANTS
ARTICLE I
OFFICES
Section 1.01 REGISTERED OFFICE. The registered office of [Insert name of
Additional Registrant] (hereinafter called the "Corporation") shall be at such
place in the law of the state of incorporation of the Corporation as shall be
designated by the Board of Directors (hereinafter called the "Board").
Section 1.02 PRINCIPAL OFFICE. The principal office for the transaction of
the business of the Corporation shall be at such location, within or without the
State of incorporation of the Corporation, as shall be designated by the Board.
Section 1.03 OTHER OFFICES. The Corporation may also have an office or
offices at such other place or places, either within or without the State of
incorporation of the Corporation, as the Board may from time to time determine
or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01 ANNUAL MEETINGS. Annual meetings of the stockholders of the
Corporation for the purpose of electing directors and for the transaction of
such other proper business as may come before such meetings may be held at such
time, date and place as the Board shall determine by resolution.
Section 2.02 SPECIAL MEETINGS. Special meetings of the stockholders of the
Corporation for any purpose or purposes may be called at any time by the
Chairman of the Board, the Chief Executive Officer, the Board, or by a committee
of the Board which has been duly designated by the Board and whose powers and
authority, as provided in a resolution of the Board or in the By-Laws, include
the power to call such meetings, or by one or more stockholders holding shares
in the aggregate entitled to cast not less than 20% of the votes at that
meeting, but such special meetings may not be called by any other person or
persons; provided, however, that if and to the extent that any special meeting
of stockholders may be called by any other person or persons specified in any
provisions of the Certificate of Incorporation or any amendment thereto or any
certificate filed under the laws of the State of incorporation of the
Corporation (or its successor statute as in effect from time to time hereafter),
then such special meeting
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may also be called by the person or persons, in the manner, at the time and for
the purposes so specified.
Section 2.03 PLACE OF MEETINGS. All meetings of the stockholders shall be
held at such places, within or without the State of incorporation of the
Corporation, as may from time to time be designated by the person or persons
calling the respective meetings and specified in the respective notices or
waivers of notice thereof.
Section 2.04 NOTICE OF MEETINGS. Except as otherwise required by law,
notice of each meeting of the stockholders, whether annual or special, shall be
given not less than ten (10) nor more than sixty (60) days before the date of
the meeting to each stockholder of record entitled to vote at such meeting by
delivering a typewritten or printed notice thereof to him personally, or by
depositing such notice in the United States mail, in a postage prepaid envelope,
directed to him at his address furnished by him to the Secretary of the
Corporation for such purpose or, if he shall not have furnished to the Secretary
his address for such purpose, then at his address last known to the Secretary,
or by transmitting a notice thereof to him at such address by telegraph, cable
or wireless. Except as otherwise expressly required by law, no publication of
any notice of a meeting of the stockholders shall be required. Every notice of a
meeting of the stockholders shall state the place, date and hour of the meeting,
and, in the case of a special meeting shall also state the purpose or purposes
for which the meeting is called. Except as otherwise expressly required by law,
notice of any adjourned meeting of the stockholders need not be given if the
time and place thereof are announced at the meeting at which the adjournment is
taken.
Whenever notice is required to be given to any stockholder to whom (i)
notice of two consecutive annual meetings, and all notices of meetings or of the
taking of action by written consent without a meeting to such person during the
period between such two consecutive annual meetings, or (ii) all, and at least
two, payments (if sent by first class mail) of dividends or interest on
securities during a twelve month period, have been mailed addressed to such
person at his address as shown on the records of the Corporation and have been
returned undeliverable, the giving of such notice to such person shall not be
required. Any action or meeting which shall have been taken or held without
notice to such person shall the same force and effect as if such notice had been
duly given. If any such person shall deliver to the Corporation a written notice
setting forth his then current address, the requirement that notice be given to
such person shall be reinstated.
No notice need be given to any person with whom communication is unlawful,
nor shall there be any duty to apply for any permanent or license to give notice
to any such person.
Section 2.05 QUORUM. Except as provided by law, the holders of record of a
majority in voting interest of the shares of stock of the Corporation entitled
to be voted, present in person or by proxy, shall constitute a quorum for the
transaction of business at any meeting of the stockholders of the Corporation or
any adjournment thereof. The stockholders present at a duly called or held
meeting at which a quorum is present may continue to do business until
adjournment, notwithstanding the withdrawal
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of enough stockholders to leave less than a quorum. In the absence of a quorum
at any meeting or any adjournment thereof, a majority in voting interest of the
stockholders present in person or by proxy and entitled to vote thereat or, in
the absence therefrom of all the stockholders, any officer entitled to preside
at or to act as secretary of such meeting may adjourn such meeting from time to
time. At any such adjourned meeting at which a quorum is present any business
may be transacted which might have been transacted at the meeting as originally
called.
Section 2.06 VOTING.
(a) At each meeting of the stockholders, each stockholder shall be
entitled to vote in person or by proxy each share or fractional share of the
stock of the Corporation which has voting rights on the matter in question and
which shall have been held by him and registered in his name on the books of the
Corporation:
(i) on the date fixed pursuant to Section 2.10 of these By-Laws as
the record date for the determination of stockholders entitled to notice
of and to vote at such meeting, or
(ii) if no such record date shall have been so fixed, then (A) at
the close of business on the day next preceding the day on which notice of
the meeting shall be given or (B) if notice of the meeting shall be
waived, at the close of business on the day next preceding the day on
which the meeting shall be held.
(b) Shares of its own stock belonging to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors in such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted for quorum
purposes. Persons holding stock of the Corporation in a fiduciary capacity shall
be entitled to vote such stock. Persons whose stock is pledged shall be entitled
to vote, unless in the transfer by the pledgor on the books of the Corporation
he shall have expressly empowered the pledgee to vote thereon, in which case
only the pledgee, or his proxy, may represent such stock and vote thereon. Stock
having voting power standing of record in the names of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in common,
tenants by the entirety or otherwise, or with respect to which two or more
persons have the same fiduciary relationship, shall be voted in accordance with
the provisions of the laws of the state of incorporation of the Corporation.
(c) Any such voting rights may be exercised by the stockholder entitled
thereto in person or by his proxy appointed by an instrument in writing,
subscribed by such stockholder or by his attorney thereunto authorized and
delivered to the secretary of the meeting; provided, however, that no proxy
shall be voted or acted upon after three years from its date unless said proxy
shall provide for a longer period. The attendance at any meeting of a
stockholder who may theretofore have given a proxy shall not have the effect of
revoking the same unless he shall in writing so notify the secretary of the
meeting prior to the voting of the proxy. At any meeting of the stockholders all
matters, except as otherwise provided in the Certificate of Incorporation, in
these By-Laws or by law, shall be decided by the vote of a majority in voting
interest
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of the stockholders present in person or by proxy and entitled to vote thereat
and thereon. The stockholders present at a duly called or held meeting at which
a quorum is present may continue to do business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum. The vote at any meeting of the stockholders on any question need not be
by ballot, unless so directed by the chairman of the meeting. On a vote by
ballot, each ballot shall be signed by the stockholder voting, or by his proxy
if there be such proxy, and it shall state the number of shares voted.
Section 2.07 LIST OF STOCKHOLDERS. The Secretary of the Corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, 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 entire
duration thereof, and may be inspected by any stockholder who is present.
Section 2.08 INSPECTOR OF ELECTION. If at any meeting of the stockholders
a vote by written ballot shall be taken on any question, the chairman of such
meeting may appoint an inspector or inspectors of election to act with respect
to such vote. Each inspector so appointed shall first subscribe an oath
faithfully to execute the duties of an inspector at such meeting with strict
impartiality and according to the best of his ability. Such inspectors shall
decide upon the qualification of the voters and shall report the number of
shares represented at the meeting and entitled to vote on such question, shall
conduct and accept the votes, and, when the voting is completed, shall ascertain
and report the number of shares voted respectively for and against the question.
Reports of the inspectors shall be in writing and subscribed and delivered by
them to the Secretary of the Corporation. Inspectors need not be stockholders of
the Corporation, and any officer of the Corporation may be an inspector on any
question other than a vote for or against a proposal in which he shall have a
material interest.
Section 2.09 STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by
law of the state of incorporation of the Corporation to be taken at any annual
or special meeting of the stockholders, or any action which may be taken at any
annual or special meeting of the stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing setting forth
the action so taken shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
Section 2.10 RECORD DATE. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a
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meeting, 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 may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board
and which record date: (i) in the case of determination of stockholders entitled
to vote at any meeting of stockholders or adjournment thereof, shall, unless
otherwise required by law, not be more than sixty nor less than ten days before
the date of such meeting; (ii) in the case of determination of stockholders
entitled to express consent to corporate action in writing without a meeting,
shall not be more than ten days from the date upon which the resolution fixing
the record date is adopted by the Board; and (iii) in the case of any other
action, shall not be more than sixty days prior to such other action. If no
record date is fixed: (i) 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; (ii) the record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting
when no prior action of the Board is required by law, shall be the first date on
which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the corporation in accordance with applicable law, or, if
prior action by the Board is required by law, shall be at the close of business
on the day on which the Board adopts the resolution taking such prior action;
and (iii) 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 thereto. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board may fix a
new record date for the adjourned meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 3.01 GENERAL POWERS. The property, business and affairs of the
Corporation shall be managed by or under the direction of the Board, which may
exercise all of the powers of the Corporation, except such as are by the
Certificate of Incorporation, by these By-Laws or by law conferred upon or
reserved to the stockholders.
Section 3.02 NUMBER AND TERM. The authorized number of directors of the
Corporation shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the Whole Board.
Directors shall be elected for a term of office to expire at the next annual
meeting of stockholders after their election, with each director to hold office
until his or her successor shall have been duly elected and qualified. Directors
need not be stockholders of the Corporation. For purposes of these By-Laws, the
term "Whole Board" means the then-total number of authorized directors
(including any vacancies in authorized directorships, regardless of whether any
such vacancy resulted from the creation of a new authorized directorship or
instead from the death, resignation, retirement, disqualification, or removal
from office of a director).
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Section 3.03 ELECTION OF DIRECTORS. The directors shall be elected by the
stockholders of the Corporation, and at each election the persons receiving the
greatest number of votes, up to the number of directors then to be elected,
shall be the persons then elected. The election of directors is subject to any
provisions contained in the Certificate of Incorporation relating thereto,
including any provisions for a classified board.
Section 3.04 RESIGNATION AND REMOVAL. Any director of the Corporation may
resign at any time by giving written notice to the Board or to the Secretary of
the Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time is not specified, it shall take effect immediately upon
its receipt; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Except as otherwise provided by the Certificate of Incorporation or by
law, any director or the entire board of directors may be removed, with or
without cause, by the holders of a majority of shares then entitled to vote at
an election of directors.
Section 3.05 VACANCIES. Except as otherwise provided in the Certificate of
Incorporation, any vacancy in the Board, whether because of death, resignation,
disqualification, an increase in the number of directors, or any other cause,
may be filled by vote of the majority of the remaining directors, although less
than a quorum, or by a sole remaining director. Each director so chosen to fill
a vacancy shall hold office until his successor shall have been elected and
shall qualify or until he shall resign or shall have been removed. No reduction
of the authorized number of directors shall have the effect of removing any
director prior to the expiration of his term of office.
Upon the resignation of one or more directors from the Board, effective at
a future date, a majority of the directors then in office, including those who
have so resigned, shall have the power to fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided hereinabove
in the filling of other vacancies.
Section 3.06 PLACE OF MEETING; TELEPHONE CONFERENCE MEETING. The Board may
hold any of its meetings at such place or places within or without the State of
incorporation of the Corporation as the Board may from time to time by
resolution designate or as shall be designated by the person or persons calling
the meeting or in the notice or waiver of notice of any such meeting. Directors
may participate in any regular or special meeting of the Board by means of
conference telephone or similar communications equipment pursuant to which all
persons participating in the meeting of the Board can hear each other, and such
participation shall constitute presence in person at such meeting.
Section 3.07 FIRST MEETING. The Board shall meet as soon as practicable
after each annual election of directors and notice of such first meeting shall
not be required.
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Section 3.08 REGULAR MEETINGS. Regular meetings of the Board may be held
at such times as the Board shall from time to time by resolution determine. If
any day fixed for a meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting shall be held at the same hour and place
on the next succeeding business day which is not a legal holiday. Except as
provided by law, notice of regular meetings need not be given.
Section 3.09 SPECIAL MEETINGS. Special meetings of the Board may be called
at any time by the Chairman of the Board or the President or by any two (2)
directors, to be held at the principal office of the Corporation, or at such
other place or places, within or without the State of incorporation of the
Corporation, as the person or persons calling the meeting may designate.
Notice of the time and place of special meetings shall be given to each
director either (i) by mailing or otherwise sending to him a written notice of
such meeting, charges prepaid, addressed to him at his address as it is shown
upon the records of the Corporation, or if it is not so shown on such records or
is not readily ascertainable, at the place in which the meetings of the
directors are regularly held, at least seventy-two (72) hours prior to the time
of the holding of such meeting; or (ii) by orally communicating the time and
place of the special meeting to him at least forty-eight (48) hours prior to the
time of the holding of such meeting. Either of the notices as above provided
shall be due, legal and personal notice to such director.
Section 3.10 QUORUM AND ACTION. Except as otherwise provided in these
By-Laws or by law, the presence of a majority of the authorized number of
directors shall be required to constitute a quorum for the transaction of
business at any meeting of the Board, and all matters shall be decided at any
such meeting, a quorum being present, by the affirmative votes of a majority of
the directors present. In the absence of a quorum, a majority of directors
present at any meeting may adjourn the same from time to time until a quorum
shall be present. Notice of any adjourned meeting need not be given. The
directors shall act only as a Board, and the individual directors shall have no
power as such.
Section 3.11 ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
Board or of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or such committee. Such
action by written consent shall have the same force and effect as the unanimous
vote of such directors.
Section 3.12 COMPENSATION. No stated salary need be paid to directors, as
such, for their services but, as fixed from time to time by resolution of the
Board, the directors may receive directors' fees, compensation and reimbursement
for expenses for attendance at directors' meetings, for serving on committees
and for discharging their duties; provided that nothing herein contained shall
be construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
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Section 3.13 COMMITTEES. The Board may, by resolution passed by a majority
of the Whole Board, designate one or more committees, each committee to consist
of one or more of the directors of the Corporation. The Board may designate one
or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of the committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board, shall have and may exercise all the powers and authority of the Board in
the management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it;
but no such committee shall have the power or authority in reference to the
following: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the law of the state of incorporation of
the Corporation to be submitted to stockholders for approval, or (ii) adopting,
amending or repealing any By-Law of the Corporation.
Unless the Board otherwise provides, each committee designated by the
Board may make, alter and repeal rules for conduct of its business. In the
absence of such rules each committee shall conduct its business in the same
manner as the Board conducts its business pursuant to these By-Laws. Any such
committee shall keep written minutes of its meetings and report the same to the
Board when required.
Section 3.14 OFFICERS OF THE BOARD. A Chairman of the Board or a Vice
Chairman may be appointed from time to time by the Board and shall have such
powers and duties as shall be designated by the Board.
ARTICLE IV
OFFICERS
Section 4.01 OFFICERS. The officers of the Corporation shall be a
President, a Secretary and a Treasurer. The Corporation may also have, at the
discretion of the Board, a Chairman of the Board, a Chief Executive Officer, one
or more Vice Presidents, one or more Assistant Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, a Controller and such
other officers as may be appointed in accordance with the provisions of Section
4.03 of these By-Laws. Any number of offices may be held by the same person. The
Board of Directors may from time to time delegate the powers or duties of any
officer to any other officers or agents, notwithstanding any provision hereof.
The salaries of all officers of the Corporation shall be fixed from time to time
by the Board.
Section 4.02 ELECTION AND TERM. The officers of the Corporation, except
such officers as may be appointed in accordance with the provisions of Section
4.03 or Section 4.05 of these By-Laws, shall be chosen annually by the Board,
and each shall hold his office until he shall resign or shall be removed or
otherwise disqualified to serve, or until his successor shall be elected and
qualified.
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Section 4.03 SUBORDINATE OFFICERS. The Board may appoint, or may authorize
the President or Chief Executive Officer, if any, to appoint, such other
officers as the business of the Corporation may require, each of whom shall have
such authority and perform such duties as are provided in these By-Laws or as
the Board, the President or the Chief Executive Officer, if any, from time to
time may specify, and shall hold office until he shall resign or shall be
removed or otherwise disqualified to serve.
Section 4.04 REMOVAL AND RESIGNATION. Any officer may be removed, with or
without cause, by a majority of the directors at the time in office, at any
regular or special meeting of the Board, or, except in case of an officer chosen
by the Board, by the President or Chief Executive Officer, if any, upon whom
such power of removal may be conferred by the Board.
Any officer may resign at any time by giving written notice to the Board,
the Chairman of the Board, the President, the Chief Executive Officer or the
Secretary of the Corporation. Any such resignation shall take effect at the date
of the receipt of such notice or at any later time specified therein; and unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 4.05 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the By-Laws for the regular appointments to such office.
Section 4.06 CHAIRMAN OF THE BOARD. The Chairman of the Board 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 the
responsibility for the general management and control of the business and
affairs of the Corporation and shall perform all duties and have all powers
which are commonly incident to the office of chief executive or which are
delegated to him or her by the Board of Directors. He or she shall have power to
sign all stock certificates, contracts and other instruments of the Corporation
that are authorized and shall have general supervision and direction of all of
the other officers, employees and agents of the Corporation.
Section 4.07 PRESIDENT. The President shall be the chief operating officer
of the Corporation. He or she shall have general responsibility for the
management and control of the operations of the Corporation and shall perform
all duties and have all powers which are commonly incident to the office of
chief operating officer or which are delegated to him or her by the Board of
Directors. Subject to the direction of the Board of Directors and the Chairman
of the Board, the President shall have power to sign all stock certificates,
contracts and other instruments of the Corporation that are authorized and shall
have general supervision of all of the other officers (other than the Chairman
of the Board and officers who report directly to the Chairman of the Board),
employees and agents of the Corporation.
Section 4.08 VICE PRESIDENT. The Vice President(s), if any, shall exercise
and perform such powers and duties with respect to the administration of the
business and affairs of the Corporation as from time to time may be assigned to
each of them by the President, by the Chief Executive Officer, if any, by the
Chairman of the
9
Board, if any, by the Board or as is prescribed by the By-Laws. In the absence
or disability of the President and Chief Executive Officer, if any, the Vice
Presidents, in order of their rank as fixed by the Board, or if not ranked, the
Vice President designated by the Board, shall perform all of the duties of the
President and when so acting shall have all of the powers of and be subject to
all the restrictions upon the President.
Section 4.09 SECRETARY. The Corporate Secretary shall keep, or cause to be
kept, a book of minutes at the principal office for the transaction of the
business of the Corporation, or such other place as the Board may order, of all
meetings of directors and stockholders, with the time and place of holding,
whether regular or special, and if special, how authorized and the notice
thereof given, the names of those present at directors' meetings, the number of
shares present or represented at stockholders' meetings and the proceedings
thereof.
The Corporate Secretary shall keep, or cause to be kept, at the principal
office for the transaction of the business of the Corporation or at the office
of the Corporation's transfer agent, a share register, or a duplicate share
register, showing the names of the stockholders and their addresses, the number
and classes of shares held by each, the number and date of certificates issued
for the same, and the number and date of cancellation of every certificate
surrendered for cancellation.
The Corporate Secretary shall give, or cause to be given, notice of all
the meetings of the stockholders and of the Board required by these By-Laws or
by law to be given, and he shall keep the seal of the Corporation in safe
custody, and shall have such other powers and perform such other duties as may
be prescribed by the Board or these By-Laws. If for any reason the Corporate
Secretary shall fail to give notice of any special meeting of the Board called
by one or more of the persons identified in Section 3.09 of these By-Laws, or if
he shall fail to give notice of any special meeting of the stockholders called
by one or more of the persons identified in Section 2.02 of these By-Laws, then
any such person or persons may give notice of any such special meeting.
Section 4.10 TREASURER. Except insofar as some other officer or employee
shall from time to time be expressly authorized and instructed so to do, the
Treasurer shall receive and provide receipt for, either personally or by an
employee authorized by the Treasurer so to do, all checks and drafts of the
Corporation, pay all debts of the Corporation under direction of the Board of
Directors, keep safely all notes, stocks, bonds, deeds and all evidences of
property belonging to the Corporation, have custody of all moneys either
belonging to the Corporation, or in its charge, and properly care for the same
and shall have such other powers and duties as the Board of Directors may from
time to time prescribe.
Section 4.11 CONTROLLER. The Controller shall be the principal accounting
officer of the Corporation. Except insofar as some other officer or employee
shall from time to time be expressly authorized so to do, the Controller shall
keep all financial books of the Corporation, keep thorough and proper accounts
of the financial transactions of the Corporation and render statements of the
same in such form and at such times as the Board of Directors shall require,
maintain a system of budgeting control, prepare and render to such governmental
officials having the right to so require, tax returns
10
and all exhibits, reports and other instruments required by law and have such
other powers or duties as may be assigned to him from time to time by the Board
of Directors.
Section 4.12 COMPENSATION. The compensation of the officers of the
Corporation, if any, shall be fixed from time to time by the Board.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 5.01 EXECUTION OF CONTRACTS. The Board, except as otherwise
provided in these By-Laws, may authorize any officer or officers, agent or
agents, to enter into any contract or execute any instrument in the name and on
behalf of the Corporation, and such authority may be general or confined to
specific instances; and unless so authorized by the Board or by these By-Laws,
no officer, agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or in any amount.
Section 5.02 CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
payment of money, notes or other evidence of indebtedness, issued in the name of
or payable to the Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be determined by
resolution of the Board. Each such person shall give such bond, if any, as the
Board may require.
Section 5.03 DEPOSIT. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board may select, or as may
be selected by any officer or officers, assistant or assistants, agent or
agents, attorney or attorneys, of the Corporation to whom such power shall have
been delegated by the Board. For the purpose of deposit and for the purpose of
collection for the account of the Corporation, the President, the Chief
Executive Officer, any Vice President or the Treasurer (or any other officer or
officers, assistant or assistants, agent or agents, or attorney or attorneys of
the Corporation who shall be determined by the Board from time to time) may
endorse, assign and deliver checks, drafts and other orders for the payment of
money which are payable to the order of the Corporation.
Section 5.04 GENERAL AND SPECIAL BANK ACCOUNTS. The Board from time to
time may authorize the opening and keeping of general and special bank accounts
with such banks, trust companies or other depositories as the Board may select
or as may be selected by an officer or officers, assistant or assistants, agent
or agents, or attorney or attorneys of the Corporation to whom such power shall
have been delegated by the Board. The Board may make such special rules and
regulations with respect to such bank accounts, not inconsistent with the
provisions of these By-Laws, as it may deem expedient.
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ARTICLE VI
SHARES AND THEIR TRANSFER
Section 6.01 CERTIFICATES FOR STOCK. Every owner of stock of the
Corporation shall be entitled to have a certificate or certificates, in such
form as the Board shall prescribe, certifying the number and class of shares of
the stock of the Corporation owned by him. The certificates representing shares
of such stock shall be numbered in the order in which they shall be issued and
shall be signed in the name of the Corporation by the Chairman of the Board, the
President or a Vice President and by the Secretary or an Assistant Secretary or
by the Treasurer or an Assistant Treasurer. Any or all of the signatures on the
certificates may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon any
such certificate shall thereafter have ceased to be such officer, transfer agent
or registrar before such certificate is issued, such certificate may
nevertheless be issued by the Corporation with the same effect as though the
person who signed such certificate, or whose facsimile signature shall have been
placed thereupon, were such officer, transfer agent or registrar at the date of
issue. A record shall be kept of the respective names of the persons, firms or
corporations owning the stock represented by such certificates, the number and
class of shares represented by such certificates, respectively, and the
respective dates thereof, and in case of cancellation, the respective dates of
cancellation. Every certificate surrendered to the Corporation for exchange or
transfer shall be cancelled, and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been so cancelled, except in cases provided for in Section 6.04 of
these By-Laws.
Section 6.02 TRANSFER OF STOCK. Transfer of shares of stock of the
Corporation shall be made only on the books of the Corporation by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary, or with a transfer clerk or a
transfer agent appointed as provided in Section 6.03 of these By-Laws, and upon
surrender of the certificate or certificates for such shares properly endorsed
and the payment of all taxes thereon. The person in whose name shares of stock
stand on the books of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation. Whenever any transfer of shares shall be
made for collateral security, and not absolutely, such fact shall be stated
expressly in the entry of transfer if, when the certificate or certificates
shall be presented to the Corporation for transfer, both the transferor and the
transferee request the Corporation to do so.
Section 6.03 REGULATIONS. The Board may make such rules and regulations as
it may deem expedient, not inconsistent with these By-Laws, concerning the
issue, transfer and registration of certificates for shares of the stock of the
Corporation. The Board may appoint, or authorize any officer or officers to
appoint, one or more transfer clerks or one or more transfer agents and one or
more registrars, and may require all certificates for stock to bear the
signature or signatures of any of them.
Section 6.04 LOST, STOLEN, DESTROYED AND MUTILATED CERTIFICATES. In any
case of loss, theft, destruction, or mutilation of any certificate
12
of stock, another may be issued in its place upon proof of such loss, theft,
destruction, or mutilation and upon the giving of a bond of indemnity to the
Corporation in such form and in such sums as the Board may direct; provided,
however, that a new certificate may be issued without requiring any bond when,
in the judgment of the Board, it is proper to do so.
Section 6.05 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The President
or any Vice President and the Secretary or any Assistant Secretary of this
Corporation are authorized to vote, represent and exercise on behalf of this
Corporation all rights incident to all shares of any other corporation or
corporations standing in the name of this Corporation. The authority herein
granted to said officers to vote or represent on behalf of this Corporation any
and all shares held by this Corporation in any other corporation or corporations
may be exercised either by such officers in person or by any person authorized
so to do by proxy or power of attorney duly executed by said officers.
ARTICLE VII
INDEMNIFICATION
Section 7.01 RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was a director or an officer of the Corporation or is or was serving at
the request of the Corporation as a director, officer or trustee of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer or trustee or in any other capacity
while serving as a director, officer or trustee, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the law of the
state of incorporation of the Corporation, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
such law permitted the Corporation to provide prior to such amendment), against
all expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such indemnitee in connection therewith; provided,
however, that, except as provided in Section 7.03 of these By-Laws with respect
to proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
Section 7.02 RIGHT TO ADVANCEMENT OF EXPENSES. In addition to the right to
indemnification conferred in Section 7.01 of these By-Laws, an indemnitee shall
also have the right to be paid by the Corporation the expenses (including
attorney's fees) incurred in defending any such proceeding in advance of its
final disposition (hereinafter an "advancement of expenses"); provided, however,
that, if the law of the state of incorporation of the Corporation requires, an
advancement of expenses incurred by an
13
indemnitee in his or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such indemnitee, including,
without limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 7.02 or otherwise.
Section 7.03 RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section
7.01 or 7.02 of these By-Laws is not paid in full by the Corporation within
sixty (60) days after a written claim has been received by the Corporation,
except in the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty (20) days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final adjudication
that, the indemnitee has not met any applicable standard for indemnification set
forth in the law of the state of incorporation of the Corporation. Neither the
failure of the Corporation (including its directors who are not parties to such
action, a committee of such directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the law of the state of incorporation of the Corporation, nor an actual
determination by the Corporation (including its directors who are not parties to
such action, a committee of such directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article VII or otherwise shall be on the Corporation.
Section 7.04 NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and
to the advancement of expenses conferred in this Article VII shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, the Corporation's Certificate of Incorporation, By-Laws,
agreement, vote of stockholders or directors or otherwise.
14
Section 7.05 INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the law of the state of incorporation of the
Corporation.
Section 7.06 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION.
The Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the provisions
of this Article VII with respect to the indemnification and advancement of
expenses of directors and officers of the Corporation.
Section 7.07 NATURE OF RIGHTS. The rights conferred upon indemnitees in
this Article VII shall be contract rights and such rights shall continue as to
an indemnitee who has ceased to be a director, officer or trustee and shall
inure to the benefit of the indemnitee's heirs, executors and administrators.
Any amendment, alteration or repeal of this Article VII that adversely affects
any right of an indemnitee or its successors shall be prospective only and shall
not limit or eliminate any such right with respect to any proceeding involving
any occurrence or alleged occurrence of any action or omission to act that took
place prior to such amendment or repeal.
Section 7.08 CONSTITUENT CORPORATIONS. For the purposes of this Article
VII, references to "the Corporation" include in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise or as a member of any committee or similar body shall
stand in the same position under the provisions of this Article VII with respect
to the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
Section 7.09 EMPLOYEE BENEFIT PLANS. For the purposes of this Article VII,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article VII.
15
Section 7.10 RELIANCE. Each director, each member of any committee
designated by the Board of Directors, and each officer of the Corporation shall,
in the performance of his or her duties, be fully protected in relying in good
faith upon the books of account or other records of the Corporation and upon
such information, opinions, reports or statements presented to the Corporation
by any of its officers or employees, or committees of the Board of Directors so
designated, or by any other person as to matters that such director or committee
member reasonably believes are within such other person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Corporation.
Section 7.11 SEVERABILITY. If any part of this Article VII shall be found,
in any action, suit or proceeding or appeal therefrom or in any other
circumstances or as to any particular officer, director, employee or agent to be
unenforceable, ineffective or invalid for any reason, the enforceability, effect
and validity of the remaining parts or of such parts in other circumstances
shall not be affected, except as otherwise required by applicable law.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 SEAL. The Board shall provide a corporate seal, which shall
be in the form of a circle and shall bear the name of the Corporation and words
and figures showing that the Corporation was incorporated in the law of the
state of incorporation of the Corporation and showing the year of incorporation.
Section 8.02 WAIVER OF NOTICES. Whenever notice is required to be given
under any provision of these By-Laws, the Certificate of Incorporation or by
law, a written waiver, 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 a person attends a meeting for the express purpose of
objecting at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless required by the Certificate of
Incorporation.
Section 8.03 LOANS AND GUARANTIES. The Corporation may lend money to, or
guarantee any obligation of, and otherwise assist any officer or other employee
of the Corporation or of its subsidiaries, including any officer who is a
director, whenever, in the judgment of the Board, such loan, guaranty or
assistance may reasonably be expected to benefit the Corporation. The loan,
guaranty, or other assistance may be with or without interest, and may be
unsecured or secured in such manner as the Board shall approve, including,
without limitation, a pledge of shares of stock of the Corporation.
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Section 8.04 GENDER. All personal pronouns used in these By-Laws shall
include the other genders, whether used in the masculine, feminine or neuter
gender, and the singular shall include the plural, and vice versa, whenever and
as often as may be appropriate.
Section 8.05 AMENDMENTS. These By-Laws, or any of them, may be rescinded,
altered, amended or repealed, and new By-Laws may be made (i) by the Board, by
vote of a majority of the number of directors then in office as directors,
acting at any meeting of the Board or (ii) by the stockholders, by the vote of a
majority of the outstanding shares of voting stock of the Corporation, at any
meeting of stockholders; provided, however, that Section 2.02 of these By-Laws
can only be amended if that Section as amended would not conflict with the
Corporation's Certificate of Incorporation. Any By-Law made or altered by the
stockholders may be altered or repealed by the Board or may be altered or
repealed by the stockholders.
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