Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Form S-1 Registration Statement 115 718K
2: EX-1 Purchase Agreement 23 99K
3: EX-2 Asset Purchase Agreement 147 372K
4: EX-3.1 Restated Certificate of Incorporation 7 34K
5: EX-3.2 Gorges/Quik-To-Fix Foods, Inc. Bylaws 14 53K
6: EX-4 Indenture 208 778K
7: EX-10.1 Agreement for Investment Banking Services 4 23K
16: EX-10.10 Lease Agreement 17 63K
17: EX-10.11 Supply Agreement 35 104K
18: EX-10.12 Letter Agreement 2 15K
19: EX-10.13 Beef Pattie Agreement 2 15K
20: EX-10.14 Gas Sales Agreement Dated December 1, 1995 9 41K
21: EX-10.15 Contract for Industrial Gas Service 33 126K
22: EX-10.16 Gas Sales Agreement Dated June 1, 1995 17 57K
23: EX-10.17 Waste Water Treatment Agreement 1 13K
24: EX-10.18 Securities Purchase and Stockholders Agreement 77 302K
25: EX-10.19 Consulting Agreement 6 28K
8: EX-10.2 Transition Services Agreement 27 83K
26: EX-10.20 Bill of Sale - Tyson Foods, Inc. 4 19K
27: EX-10.21 Bill of Sale - Gorges Foodservice, Inc. 4 19K
28: EX-10.22 Employment Agreement - J. David Culwell 10 53K
29: EX-10.23 Employment Agreement - Hernando Aviles 11 53K
30: EX-10.24 Employment Agreement - Stuart A. Ensor 11 53K
31: EX-10.25 Employment Agreement - Robert M. Powers 11 53K
32: EX-10.26 Employment Agreement - Randall H. Collins 11 53K
33: EX-10.27 Employment Agreement - Richard E. Mitchell 11 53K
9: EX-10.3 Collection Agreement 9 39K
10: EX-10.4 Trademark Licence Agreement 7 32K
11: EX-10.5 Assumption Agreement 2 18K
12: EX-10.6 Credit Agreement 157 551K
13: EX-10.7 Registration Rights Agreement 24 108K
14: EX-10.8 Co-Pack Pricing Agreement 8 27K
15: EX-10.9 Agreement of Lease 4 20K
34: EX-23.1 Consent of Ernst & Young 1 12K
35: EX-25 Statement of Eligibility of Trustee 8 30K
36: EX-27 Article 5 Financial Data Schedule 2 14K
37: EX-99.1 Stock Option Agreement - J. David Culwell 15 53K
46: EX-99.10 Form of Letter to Clients 2 16K
47: EX-99.11 Form of Letter to Nominees 2 15K
38: EX-99.2 Stock Option Agreement - Richard E. Mitchell 15 53K
39: EX-99.3 Stock Option Agreement - Randall H. Collins 15 53K
40: EX-99.4 Stock Option Agreement - Robert M. Powers 15 53K
41: EX-99.5 Stock Option Agreement - Hernando Aviles 15 53K
42: EX-99.6 Stock Option Agreement - Stuart Alan Ensor 15 53K
43: EX-99.7 Gorges Holding Company 1996 Stock Incentive Plan 18 70K
44: EX-99.8 Letter of Transmittal 12 64K
45: EX-99.9 Notice of Guaranteed Delivery 3 18K
EXHIBIT 3.2
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GORGES/QUIK-TO-FIX FOODS, INC.
BYLAWS
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ADOPTED ON OCTOBER 17, 1996
CONTENTS
SECTION I
Capital Stock
[Download Table]
Section 1.1 Certificates....................................................1
Section 1.2 Record Ownership................................................1
Section 1.3 Transfer of Record Ownership....................................1
Section 1.4 Lost Certificates...............................................1
Section 1.5 Transfer Agents, Registrars; Rules Respecting Certificates......2
Section 1.6 Record Date.....................................................2
SECTION II
Meetings of Stockholders
Section 2.1 Annual Meetings.................................................2
Section 2.2 Special Meetings................................................2
Section 2.3 Notice..........................................................3
Section 2.4 List of Stockholders............................................3
Section 2.5 Quorum..........................................................3
Section 2.6 Organization and Procedure......................................3
Section 2.7 Voting..........................................................4
SECTION III
Board of Directors
Section 3.1 Number and Qualifications.......................................4
Section 3.2 Resignation.....................................................4
Section 3.3 Regular Meetings................................................4
Section 3.4 Special Meetings................................................4
Section 3.5 Notice of Special Meetings......................................4
Section 3.6 Place of Meetings...............................................5
Section 3.7 Telephonic Meeting and Participation............................5
Section 3.8 Action by Directors Without a Meeting...........................5
Section 3.9 Quorum and Adjournment..........................................5
Section 3.10 Organization....................................................5
Section 3.11 Compensation of Directors.......................................5
Section 3.12 Presumption of Assent...........................................6
SECTION IV
Committees
Section 4.1 Committees......................................................6
SECTION V
Officers
Section 5.1 Designation.....................................................6
Section 5.2 Election Term...................................................6
[Download Table]
Section 5.3 Resignation.....................................................7
Section 5.4 Removal.........................................................7
Section 5.5 Vacancies.......................................................7
Section 5.6 Chief Executive Officer.........................................7
Section 5.7 Chairman of the Board...........................................7
Section 5.8 President ..................................................7
Section 5.9 Vice President..................................................7
Section 5.10 Treasurer.......................................................7
Section 5.11 Secretary.......................................................7
Section 5.12 Assistant Secretaries and Assistant Treasurers..................8
Section 5.13 Compensation of Officers........................................8
Section 5.14 Execution of Instruments........................................8
Section 5.15 Mechanical Endorsements.........................................8
SECTION VI
Indemnification
Section 6.1 Indemnification Provisions in Certificate of Incorporation......8
Section 6.2 Indemnification of Employees....................................8
Section 6.3 Undertakings for Advances of Expenses...........................9
Section 6.4 Claims for Indemnification......................................9
Section 6.5 Insurance.......................................................9
Section 6.6 Severability...................................................10
SECTION VII
Miscellaneous
Section 7.1 Seal...........................................................10
Section 7.2 Waiver of Notice...............................................10
Section 7.3 Voting of Stock Owned by the Corporation.......................10
Section 7.4 Fiscal Year....................................................10
SECTION VIII
Amendment of Bylaws
Section 8.1 Amendment of Bylaws............................................11
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GORGES/QUIK-TO-FIX FOODS, INC.
BYLAWS
SECTION I
CAPITAL STOCK
SECTION 1.1. CERTIFICATES. Every holder of stock in the Corporation shall
be entitled to have a certificate signed in the name of the Corporation by the
Chairman of the Board of Directors or the President or a Vice President, and by
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Corporation certifying the number of shares in the Corporation
owned by such holder. If such certificate is countersigned (a) by a transfer
agent other than the Corporation or its employee, or, (b) by a registrar other
than the Corporation or its employee, any other signature on the certificate may
be a facsimile. In case any officer, transfer agent, or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent, or registrar before such certificate
is issued, it may be issued by the Corporation with the same effect as if such
person were such officer, transfer agent, or registrar at the date of issue.
SECTION 1.2. RECORD OWNERSHIP. A record of the name and address of the
holder of each certificate, the number of shares represented thereby and the
date of issue thereof shall be made on the Corporation's books. The Corporation
shall be entitled to treat the holder of record of any share of stock as the
holder in fact thereof, and accordingly shall not be bound to recognize any
equitable or other claim to or interest in any share on the part of any other
person, whether or not it shall have express or other notice thereof, except as
required by the laws of the State of Delaware.
SECTION 1.3. TRANSFER OF RECORD OWNERSHIP. Transfers of stock shall be
made on the books of the Corporation only by direction of the person named in
the certificate or such person's attorney, lawfully constituted in writing, and
only upon the surrender of the certificate therefor and a written assignment of
the shares evidenced thereby, which certificate shall be canceled before the new
certificate is issued.
SECTION 1.4. LOST CERTIFICATES. Any person claiming a stock certificate
in lieu of one lost, stolen or destroyed shall give the Corporation an affidavit
as to such person's ownership of the certificate and of the facts which go to
prove its loss, theft or destruction. Such person shall also, if required by
policies adopted by the Board of Directors, give the Corporation a bond, in such
form as may be approved by the Corporation, 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.
SECTION 1.5. TRANSFER AGENTS; REGISTRARS; RULES RESPECTING CERTIFICATES.
The Board of Directors may appoint, or authorize any officer or officers to
appoint, one or more transfer agents and one or more registrars. The Board of
Directors may make such further rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock certificates of the
Corporation.
SECTION 1.6. RECORD DATE. The Board of Directors may fix in advance a
future date, not exceeding 60 days (nor, in the case of a stockholders' meeting,
less than ten days) preceding the date of any meeting of stockholders, payment
of dividend or other distribution, allotment of rights, or change, conversion or
exchange of capital stock or for the purpose of any other lawful action, as the
record date for determination of the stockholders entitled to notice of and to
vote at any such meeting and any adjournment thereof, or to receive any such
dividend or other distribution or allotment of rights, or to exercise the rights
in respect of any such change, conversion or exchange of capital stock, or to
participate in any such other lawful action, and in such case such stockholders
and only such stockholders as shall be stockholders of record on the date so
fixed shall be entitled to such notice of and to vote at such meeting and any
adjournment thereof, or to receive such dividend or other distribution or
allotment of rights, or to exercise such rights, or to participate in any such
other lawful action, as the case may be, notwithstanding any transfer of any
stock on the books of the Corporation after any such record date fixed as
aforesaid.
SECTION II
MEETINGS OF STOCKHOLDER
SECTION 2.1. ANNUAL MEETINGS. The annual meeting of stockholders for the
election of directors and the transaction of such other proper business shall be
held on a date to be determined by resolution of the Board of Directors, unless
that day is a legal holiday, and in that event on the next succeeding business
day, and at the time and place, within or without the State of Delaware, as
determined by the Board of Directors.
SECTION 2.2. SPECIAL MEETINGS. Special meetings of stockholders for any
purpose or purposes may be called by the Board of Directors, pursuant to a
resolution adopted by a majority of the members of the Board of Directors then
in office, or by the holders of not less than twenty-five percent (25%) of the
votes entitled to be cast at the meeting. Special meetings may be held at any
place, within or without the State of Delaware, as determined by the Board of
Directors. The only business which may be conducted at such a meeting, other
than procedural matters and matters relating to the conduct of the meeting,
shall be the matter or matters described in the notice of the meeting.
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SECTION 2.3. NOTICE. Written notice of each meeting of stockholders,
stating the date, time, place and, in the case of a special meeting, the purpose
thereof, shall be given as provided by law by the Secretary or an Assistant
Secretary not less than ten (10) days nor more than sixty (60) days before such
meeting (unless a different time is specified by law) to every stockholder
entitled by law to notice of such meeting.
SECTION 2.4. LIST OF STOCKHOLDERS. A complete list of the stockholders
entitled to vote at any meeting of stockholders, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder, shall be prepared by the Secretary and shall be
open to the examination of any stockholder, for any purpose germane 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, for at least ten days
before the meeting and at the place of the meeting during the whole time of the
meeting.
SECTION 2.5. QUORUM. The holders of shares of stock entitled to cast a
majority of the votes on the matters at issue at a meeting of stockholders,
present in person or represented by proxy, shall constitute a quorum, except as
otherwise required by the Delaware General Corporation Law. In the event of a
lack of a quorum, the chairman of the meeting or a majority in interest of the
stockholders present in person or represented by proxy may adjourn the meeting
from time to time without notice other than announcement at the meeting, until a
quorum shall be obtained. At any such adjourned meeting at which there is a
quorum, any business may be transacted that might have been transacted at the
meeting originally called.
SECTION 2.6. ORGANIZATION AND PROCEDURE.
(a) The Chairman of the Board, or, in the absence of the Chairman of the
Board, the President, or, in the absence of the President, any Vice President
designated by the Board of Directors, shall preside at meetings of stockholders.
The Secretary of the Corporation shall act as secretary, but in the absence of
the Secretary, the presiding officer may appoint a secretary.
(b) At each meeting of stockholders, the chairman of the meeting shall fix
and announce the date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at the meeting and shall
determine the order of business and all other matters of procedure. Except to
the extent inconsistent with any such rules and regulations as adopted by the
Board of Directors, the chairman of the meeting may establish rules, which need
not be in writing, to maintain order for the conduct of the meeting, including,
without limitation, restricting attendance to bona fide stockholders of record
and their proxies and other persons in attendance at the invitation of the
chairman and making rules governing speeches and debates. The chairman of the
meeting acts in his or her absolute discretion and his or her rulings are not
subject to appeal.
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SECTION 2.7. VOTING. Unless the Certificate of Incorporation or the
Delaware General Corporation Law provides otherwise, each stockholder shall be
entitled to one vote, in person or by written proxy, for each share held of
record by such stockholder who is entitled to vote generally in the election of
directors. All elections for the Board of Directors shall be decided by a
plurality of the votes cast and all other questions shall be decided by a
majority of the votes cast, except as otherwise required by the Delaware General
Corporation Law or as provided for in the Certificate of Incorporation or these
Bylaws. Abstentions shall not be considered to be votes cast.
SECTION III
BOARD OF DIRECTORS
SECTION 3.1. NUMBER AND QUALIFICATIONS. The business and affairs of the
Corporation shall be managed by or under the direction of its Board of
Directors. The number of directors constituting the Board of Directors shall be
as authorized from time to time by resolution of shareholders or of the Board of
Directors.
SECTION 3.2. RESIGNATION. A director may resign at any time by giving
written notice to the Chairman of the Board, to the President, or to the
Secretary. Unless otherwise stated in such notice of resignation, the acceptance
thereof shall not be necessary to make it effective; and such resignation shall
take effect at the time specified therein or, in the absence of such
specification, it shall take effect upon the receipt thereof.
SECTION 3.3. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without further notice at such time and at such place as shall from
time to time be determined by the Board of Directors. A meeting of the Board of
Directors for the election of officers and the transaction of such other
business as may come before it may be held without notice immediately following
the annual meeting of stockholders.
SECTION 3.4. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman of the Board, or the President, or at the request
in writing of one-third of the members of the Board of Directors then in office.
SECTION 3.5. NOTICE OF SPECIAL MEETINGS. Notice of the date, time and
place of each special meeting shall be mailed by regular mail to each director
at his or her designated address at least four days before the meeting; or sent
by overnight courier to each director at his designated address at least two
days before the meeting (with delivery scheduled to occur no later than the day
before the meeting); or given orally by telephone or other means, or by
telegraph or telecopy, or by any other means comparable to any of the foregoing,
to each director at his designated address at least 24 hours before the meeting;
provided, however, that if less than five days' notice is provided and one-third
of the members of the Board of Directors then in office object in writing prior
to or at the commencement of the meeting, such meeting shall be postponed until
five days after such
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notice was given pursuant to this sentence (or such shorter period to which a
majority of those who objected in writing agree), provided that notice of such
postponed meeting shall be given in accordance with this Section 3.5. The notice
of the special meeting shall state the general purpose of the meeting, but other
routine business may be conducted at the special meeting without such matter
being stated in the notice.
SECTION 3.6. PLACE OF MEETINGS. The Board of Directors may hold their
meetings and have an office or offices inside or outside of the State of
Delaware.
SECTION 3.7. TELEPHONIC MEETING AND PARTICIPATION. Any or all of the
directors may participate in a meeting of the Board of Directors or any
committee thereof by conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other, and
such participation shall constitute presence in person at the meeting.
SECTION 3.8. ACTION BY DIRECTORS WITHOUT A MEETING. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, 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 or of such 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
or committee.
SECTION 3.9. QUORUM AND ADJOURNMENT. A majority of the directors then
holding office shall constitute a quorum. The vote of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors. Whether or not a quorum is present to conduct a meeting,
any meeting of the Board of Directors (including an adjourned meeting) may be
adjourned by a majority of the directors present, to reconvene at a specific
time and place. It shall not be necessary to give to the directors present at
the adjourned meeting notice of the reconvened meeting or of the business to be
transacted, other than by announcement at the meeting that was adjourned;
provided, however, notice of such reconvened meeting, stating the date, time,
and place of the reconvened meeting, shall be given to the directors not present
at the adjourned meeting in accordance with the requirements of Section 3.5
hereof.
SECTION 3.10. ORGANIZATION. The Chairman of the Board, or, in the absence
of the Chairman of the Board, the President, or in the absence of the President,
a member of the Board selected by the members present, shall preside at meetings
of the Board. The Secretary of the Corporation shall act as secretary, but in
the absence of the Secretary, the presiding officer may appoint a secretary.
SECTION 3.11. COMPENSATION OF DIRECTORS. Directors shall receive such
compensation for their services as the Board of Directors may determine. Any
director may serve the Corporation in any other capacity and receive
compensation therefor.
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SECTION 3.12. PRESUMPTION OF ASSENT. A director of the Corporation who
is present at a meeting of the Board of Directors when a vote on any matter is
taken is deemed to have assented to the action taken unless he votes against or
abstains from the action taken, or unless at the beginning of the meeting or
promptly upon arrival the director objects to the holding of the meeting or
transacting specified business at the meeting. Any such dissenting votes,
abstentions or objections shall be entered in the minutes of the meeting.
SECTION IV
COMMITTEES
SECTION 4.1. COMMITTEES. The Board of Directors may, by resolutions
passed by a majority of the members of the Board of Directors, designate members
of the Board of Directors to constitute committees which shall in each case
consist of such number of directors, and shall have and may execute such powers
as may be determined and specified in the respective resolutions appointing
them. Any such committee may fix its rules of procedure, determine its manner of
acting and the time and place, whether within or without the State of Delaware,
of its meetings and specify what notice thereof, if any, shall be given, unless
the Board of Directors shall otherwise by resolution provide. Unless otherwise
provided by the Board of Directors or such committee, the quorum, voting and
other procedures shall be the same as those applicable to actions taken by the
Board of Directors. A majority of the members of the Board of Directors then in
office shall have the power to change the membership of any such committee at
any time, to fill vacancies therein and to discharge any such committee or to
remove any member thereof, either with or without cause, at any time.
SECTION V
OFFICERS
SECTION 5.1. DESIGNATION. The officers of the Corporation shall be a
Chairman of the Board, a President, a Treasurer, and a Secretary. The Board of
Directors may elect or appoint, or provide for the appointment of, such other
officers, including one or more Vice Presidents and one or more Assistant
Secretaries, in such gradation as the Board of Directors may determine, or
agents as may from time to time appear necessary or advisable in the conduct of
the business and affairs of the Corporation. Any number of offices may be held
by the same person.
SECTION 5.2. ELECTION TERM. At its first meeting after each annual
meeting of stockholders, the Board of Directors shall elect the officers or
provide for the appointment thereof. Subject to Section 5.3 and Section 5.4
hereof, the term of each officer elected by the Board of Directors shall be
until the first meeting of the Board of Directors following
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the next annual meeting of stockholders and until such officer's successor is
chosen and qualified.
SECTION 5.3. RESIGNATION. Any officer may resign at any time by giving
written notice to the President or the Secretary. Unless otherwise stated in
such notice of resignation, the acceptance thereof shall not be necessary to
make it effective; and such resignation shall take effect at the time specified
therein or, in the absence of such specification, it shall take effect upon the
receipt thereof.
SECTION 5.4. REMOVAL. Any officer may be removed at any time with or
without cause by the affirmative vote of a majority of the members of the Board
of Directors then in office. Any officer appointed by another officer may be
removed with or without cause by such officer or the Chief Executive Officer.
SECTION 5.5. VACANCIES. A vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors or, in the case of
offices held by officers who may be appointed by other officers, by any officer
authorized to appoint such officer.
SECTION 5.6. CHIEF EXECUTIVE OFFICER. The President shall initially be
the Chief Executive Officer of the Corporation and thereafter, at such time as
the Board of Directors shall determine, the Chief Executive Officer shall be
such officer as the Board of Directors shall designate from time to time. The
Chief Executive Officer shall be responsible for carrying out the policies
adopted by the Board of Directors.
SECTION 5.7. CHAIRMAN OF THE BOARD. The Chairman of the Board shall have
such powers and perform such duties as may be provided for herein and as may be
incident to the office and as may be assigned by the Board of Directors.
SECTION 5.8. PRESIDENT. The President shall have general supervision of
the business of the Corporation and shall perform such other duties as may be
assigned by the Board of Directors.
SECTION 5.9. VICE PRESIDENT. Each Vice President shall have such powers
and perform such duties as may be provided for herein and as may be assigned by
the Chief Executive Officer, or the Board of Directors.
SECTION 5.10. TREASURER. The Treasurer shall have charge of all funds of
the Corporation and the custody and operation of the accounting books and
records of the Corporation and shall perform all acts incident to the position
of Treasurer, subject to the control of the Board of Directors.
SECTION 5.11. SECRETARY. The Secretary shall keep the minutes, and give
notices, of all meetings of stockholders and directors and of such committees as
directed by the Board of Directors. The Secretary shall have charge of such
books and papers as the
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Board of Directors may require. The Secretary or any Assistant Secretary is
authorized to certify copies of extracts from minutes and of documents in the
Secretary's charge and anyone may rely on such certified copies to the same
effect as if such copies were originals and may rely upon any statement of fact
concerning the Corporation certified by the Secretary or any Assistant
Secretary. The Secretary shall perform all acts incident to the office of
Secretary, subject to the control of the Board of Directors.
SECTION 5.12. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. Assistant
Secretaries and Assistant Treasurers shall have such powers and perform such
duties as usually pertain to their respective offices and as may be assigned by
the Board of Directors or an officer designated by the Board of Directors.
SECTION 5.13. COMPENSATION OF OFFICERS. The officers of the Corporation
shall receive such compensation for their services as the Board of Directors may
determine. The Board of Directors may delegate its authority to determine
compensation to designated officers of the Corporation.
SECTION 5.14. EXECUTION OF INSTRUMENTS. Checks, notes, drafts, other
commercial instruments, assignments, guarantees of signatures and contracts
(except as otherwise provided herein or by law) shall be executed by the
President, any Vice President or such officers or employees or agents as the
Board of Directors or any of such designated officers may direct.
SECTION 5.15. MECHANICAL ENDORSEMENTS. The President, any Vice President
or the Secretary may authorize any endorsement on behalf of the Corporation to
be made by such mechanical means or stamps as any of such officers may deem
appropriate.
SECTION VI
INDEMNIFICATION
SECTION 6.1. INDEMNIFICATION PROVISIONS IN CERTIFICATE OF INCORPORATION.
The provisions of this Section VI are intended to supplement Article VI of the
Certificate of Incorporation pursuant to Sections 6.2 and 6.3 thereof. To the
extent that this Section VI contains any provisions inconsistent with said
Article VI, the provisions of the Certificate of Incorporation shall govern.
Terms defined in such Article VI shall have the same meaning in this Section VI.
SECTION 6.2. INDEMNIFICATION OF EMPLOYEES. The Corporation may indemnify
and advance expenses to its employees to the same extent as to its directors and
officers, as set forth in the Certificate of Incorporation and in this Section
VI of the Bylaws of the Corporation.
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SECTION 6.3. UNDERTAKINGS FOR ADVANCES OF EXPENSES. If and to the extent
the Delaware General Corporation Law requires, an advancement by the Corporation
of expenses incurred by an indemnitee pursuant to clause (iii) of the last
sentence of Section 6.1 of the Certificate of Incorporation (hereinafter an
"advancement of expenses") 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 Article VI of the Certificate of
Incorporation or otherwise.
SECTION 6.4. CLAIMS FOR INDEMNIFICATION. If a claim for indemnification
under Section 6.1 of the Certificate of Incorporation is not paid in full by the
Corporation within 60 days after it has been received in writing by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 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 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 in any suit 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 only upon a final adjudication that,
the indemnitee has not met the applicable standard of conduct set forth in
Section 145 of the Delaware General Corporation Law (or any successor provision
or provisions). Neither the failure of the Corporation (including the Board of
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 Section 145 of the Delaware General
Corporation Law (or any successor provision or provisions), nor an actual
determination by the Corporation (including the Board of 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 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 have or retain such
advancement of expenses, under Article VI of the Certificate of Incorporation or
this Section VI or otherwise, shall be on the Corporation.
SECTION 6.5. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, trustee, officer, employee or agent
of the Corporation or another enterprise against any expense, liability or loss,
whether or not the Corporation
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would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
SECTION 6.6. SEVERABILITY. In the event that any of the provisions of
this Section VI (including any provision within a single section, paragraph or
sentence) is held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, the remaining provisions are severable and shall remain
enforceable to the full extent permitted by law.
SECTION VII
MISCELLANEOUS
SECTION 7.1. SEAL. The Corporation shall have a suitable seal, containing
the name of the Corporation. The Secretary shall be in charge of the seal and
may authorize one or more duplicate seals to be kept and used by any other
officer or person.
SECTION 7.2. WAIVER OF NOTICE. Whenever any notice is required to be
given, a waiver thereof in writing, signed by the person or persons entitled to
the notice, whether before or after the time stated therein shall be deemed
equivalent thereto. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
SECTION 7.3. VOTING OF STOCK OWNED BY THE CORPORATION. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the Chairman of the Board, the President,
any Vice President or such officers or employees or agents as the Board of
Directors or any of such designated officers may direct. Any such officer may,
in the name of and on behalf of the Corporation, take all such action as any
such officer may deem advisable to vote in person or by proxy at any meeting of
security holders of any corporation in which the Corporation may own securities
and at any such meeting shall possess and may exercise any and all rights and
powers incident to the ownership of such securities and which, as the owner
thereof, the Corporation might have exercised and possessed if present. The
Board of Directors may from time to time confer like powers upon any other
person or persons.
SECTION 7.4. FISCAL YEAR. The Board of Directors is authorized to fix the
fiscal year of the Corporation and to change the same from time to time as it
deems appropriate.
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SECTION VIII
AMENDMENT OF BYLAWS
SECTION 8.1 AMENDMENT OF BYLAWS. The Board of Directors, by the
affirmative vote of a majority of the whole Board of Directors, shall have power
to amend, alter, change, adopt or repeal the Bylaws of the Corporation at any
regular or special meeting; provided, however, that the stockholders entitled to
vote may prescribe that any Bylaw adopted by the stockholders may not be
amended, altered, changed or repealed by the Board of Directors. The
stockholders entitled to vote also shall have the power to amend, alter, change,
adopt or repeal the Bylaws of the Corporation at any annual or special meeting
subject to the requirements of the Certificate of Incorporation.
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Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 1/22/97 | | | | | | | None on these Dates |
| | 10/17/96 | | 1 |
| List all Filings |
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