BY-LAWS
OF
Bear Island Finance Company II
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered
office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have
offices at such other places both within and without the State of Delaware
as the Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS*
Section 1. Place of Meetings. Meetings of the stockholders
for the election of directors or for any other purpose shall be held at
such time and place, either within or without the State of Delaware as
shall be designated from time to time by the Board of Directors.
Section 2. Annual Meetings. The Annual Meetings of
Stockholders for the election of directors shall be held on such date and
at such time as shall be designated from time to time by the Board of
Directors. Any other proper business may be transacted at the Annual
Meeting of Stockholders.
Section 3. Special Meetings. Unless otherwise required by
law or by the certificate of incorporation of the Corporation, as amended
and restated from time to time (the "Certificate of Incorporation"),
Special Meetings of Stockholders, for any purpose or purposes, may be
called by either (i) the Chairman, if there be one, or (ii) the President,
(iii) any Vice President, if there be one, (iv) the Secretary or (v) any
Assistant Secretary, if there be one, and shall be called by any such
officer at the request in writing of (i) the Board of Directors, (ii) a
committee of the Board of Directors that has been duly designated by the
Board of Directors and whose powers and authority include the power to call
such meetings or (iii) stockholders owning a majority of the capital stock
of the Corporation issued and outstanding and entitled to vote.* Such
request shall state the purpose or purposes of the proposed meeting. At a
Special Meeting of Stockholders, only such business shall be conducted as
shall be specified in the notice of meeting (or any supplement thereto).
Section 4. Notice. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting
shall be given which shall state the place, date and hour of the meeting,
and, in the case of a special meeting, the purpose or purposes for which
the meeting is called. Unless otherwise required by law, the written
notice of any meeting shall be given not less than ten nor more than sixty
days before the date of the meeting to each stockholder entitled to vote at
such meeting.
Section 5. Adjournments. Any meeting of the stockholders may
be adjourned from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the
time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation may
transact any business which might have been transacted at the original
meeting. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, notice
of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 6. Quorum. Unless otherwise required by law or the
Certificate of Incorporation, the holders of a majority* of the capital
stock issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum at all meetings
of the stockholders for the transaction of business. A quorum, once
established, shall not be broken by the withdrawal of enough votes to leave
less than a quorum. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, in the manner provided in
Section 5, until a quorum shall be present or represented.
Section 7. Voting. Unless otherwise required by
law, the Certificate of Incorporation or these By-laws, any
question brought before any meeting of stockholders, other
than the election of directors, shall be decided by the
vote of the holders of a majority* of the total number of
votes of the capital stock represented and entitled to vote
thereat, voting as a single class. Unless otherwise
provided in the Certificate of Incorporation, and subject to
Section 5 of Article V hereof, each stockholder represented
at a meeting of stockholders shall be entitled to cast one
vote for each share of the capital stock entitled to vote
thereat held by such stockholder. Such votes may be cast
in person or by proxy but no proxy shall be voted on or
after three years from its date, unless such proxy provides
for a longer period. The Board of Directors, in its
discretion, or the officer of the Corporation presiding at a
meeting of stockholders, in such officer's discretion, may
require that any votes cast at such meeting shall be cast by written
ballot.
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* If the Corporation is to become a public company, consideration should
be given to adding an advance notice provision requiring stockholders
to give notice to the Corporation at least sixty but not more than
ninety days prior to the anniversary date of the immediately preceding
annual meeting when they intend to nominate directors or propose
actions to be taken at a meeting. (SEE RIDERS 2-A AND 2-B)
* If the Corporation is to become a public company, the Corporation
should consider eliminating the ability of stockholders to call a
special meeting. The Corporation could accomplish this through a
charter provision (SEE RIDER 3-A) denying stockholders the right to
call a special meeting (which would provide the greatest protection
since stockholders can not unilaterally amend the charter), or by
simply not granting stockholders the right to call a special meeting in
the By-Laws.
* Section 216 of the Delaware General Corporation Law ("DGCL") permits a
corporation to specify any number of shares as the minimum amount to
constitute a quorum at a meeting, provided that such number is not less
than one-third of the shares entitled to vote at the meeting. Absent
special circumstances, however, a majority is customary.
* Section 216 of the DGCL permits a corporation to specify in its charter
or by-laws the minimum number of votes necessary for the transaction of
any business at a meeting of stockholders, subject to the
requirements elsewhere in the DGCL as to the vote required for a
specific action. Section 102 of the DGCL permits a corporation's
charter to include a provision requiring for any corporate action the
vote of a larger portion of the stock than is required elsewhere in
the DGCL. Absent special circumstances, however, a majority is
customary.
Section 8. Consent of Stockholders in Lieu of Meeting.*
Unless otherwise provided in the Certificate of Incorporation, any action
required or permitted to be taken at any Annual or Special Meeting of
Stockholders of the Corporation, may be taken without a meeting, without
prior notice and without a vote, if a consent or consents 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 and shall be
delivered to the Corporation by delivery to its registered office in the
State of Delaware, its principal place of business, or an officer or
agent of the corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail,
return receipt requested. Every written consent shall bear the date of
signature of each stockholder who signs the consent and no written consent
shall be effective to take the corporate action referred to therein unless,
within sixty days of the earliest dated consent delivered in the manner
required by this Section 8 to the Corporation, written consents signed by
a sufficient number of holders to take action are delivered to the
Corporation by delivery to its registered office in the state of Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders
are recorded. 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 and who, if the action had
been taken at a meeting, would have been entitled to notice of the meeting
if the record date for such meeting had been the date that written consents
signed by a sufficient number of holders to take the action were delivered
to the Corporation as provided above in this section.
Section 9. List of Stockholders Entitled to Vote. The
officer of the Corporation who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for
a period of at least ten days prior to the meeting either at a place within
the city where the meeting is to be held, which place shall be specified in
the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof, and may be in-
spected by any stockholder of the Corporation who is present.
Section 10. Stock Ledger. The stock ledger of the
Corporation shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list required by Section 9 of
this Article II or the books of the Corporation, or to vote in person or by
proxy at any meeting of stockholders.
Section 11. Conduct of Meetings. The Board of Directors of
the Corporation may adopt by resolution such rules and regulations for the
conduct of the meeting of the stockholders as it shall deem appropriate.
Except to the extent inconsistent with such rules and regulations as
adopted by the Board of Directors, the chairman of any meeting of the
stockholders shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of
such chairman, are appropriate for the proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board of Directors
or prescribed by the chairman of the meeting, may include, without
limitation, the following: (i) the establishment of an agenda or order of
business for the meeting; (ii) the determination of when the polls shall
open and close for any given matter to be voted on at the meeting; (iii)
rules and procedures for maintaining order at the meeting and the safety of
those present; (iv) limitations on attendance at or participation in the
meeting to stockholders of record of the corporation, their duly authorized
and constituted proxies or such other persons as the chairman of the
meeting shall determine; (v) restrictions on entry to the meeting after the
time fixed for the commencement thereof; and (vi) limitations on the time
allotted to questions or comments by participants.
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* If the Corporation is to become a public company, consideration should
be given to eliminating stockholders' authority to act by written
consent in lieu of meeting. Under Delaware law, however, any such
limitation is required to be in the charter. (SEE RIDER 7-A).
Alternatively, certain limitations on stockholders' ability to wage a
consent solicitation could be adopted. (SEE RIDER 7-B).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors.
The Board of Directors shall consist of not less than one
nor more than fifteen members, the exact number of which
shall initially be fixed by the Incorporator and thereaf-
ter from time to time by the Board of Directors.* Except
as provided in Section 2 of this Article III, directors
shall be elected by a plurality of the votes cast at the
Annual Meetings of Stockholders and each director so
elected shall hold office until the next Annual Meeting of
Stockholders and until such director's successor is duly elected
and qualified, or until such director's earlier death,
resignation or removal. Any director may resign at any time
upon written notice to the Corporation. Directors need
not be stockholders.
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* If the Corporation is to become a public company,
consideration should be given to (i) fixing the number
of directors, or range in the number of directors, in
the charter (SEE RIDER 11-A), (ii) establishing a
classified board through the charter (SEE RIDER 11-B)
and/or (iii) providing for removal of directors only
upon a supermajority vote of the shareholders. (SEE
RIDER 11-C).
Section 2. Vacancies.* Unless otherwise required by law or
the Certificate of Incorporation, vacancies arising through death,
resignation, removal, an increase in the number of directors or otherwise
may be filled only by a majority of the directors then in office, though
less than a quorum, or by a sole remaining director, and the directors so
chosen shall hold office until the next annual election and until their
successors are duly elected and qualified, or until their earlier death,
resignation or removal.
Section 3. Duties and Powers. The business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors which may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these By-Laws required to be exercised or done by the
stockholders.
Section 4. Meetings. The Board of Directors may hold
meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without
notice at such time and at such place as may from time to time be
determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there be one, the President, or
by any director.* Notice thereof stating the place, date and hour of the
meeting shall be given to each director either by mail not less than
forty-eight (48) hours before the date of the meeting, by telephone or
telegram on twenty-four (24) hours' notice, or on such shorter notice as
the person or persons calling such meeting may deem necessary or
appropriate in the circumstances.
Section 5. Quorum. Except as otherwise required by law or
the Certificate of Incorporation, at all meetings of the Board of
Directors, a majority of the entire Board of Directors shall constitute a
quorum** for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may
adjourn the meeting from time to time, without notice other than
announcement at the meeting of the time and place of the adjourned meeting,
until a quorum shall be present.
Section 6. Actions by Written Consent. Unless otherwise
provided in the Certificate of Incorporation, or these By-Laws, any action
required or permitted to be taken at any meeting of the Board of Directors
or of any committee thereof may be taken without a meeting, if all the
members of the Board of Directors or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes
of proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless
otherwise provided in the Certificate of Incorporation, members of the
Board of Directors of the Corporation, or any committee thereof, may
participate in a meeting of the Board of Directors or such committee by
means of a conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each
other, and participation in a meeting pursuant to this Section 7 shall
constitute presence in person at such meeting.
Section 8. Committees.* The Board of Directors may
designate one or more committees, each committee to consist of one or more
of the directors of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee,
and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the
extent permitted by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to
all papers which may require it. Each committee shall keep regular minutes
and report to the Board of Directors when required.
Section 9. Compensation. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director, payable in cash or securities.
No such payment shall preclude any director from serving the Corporation in
any other capacity and receiving compensation therefor. Members of
special or standing committees may be allowed like compensation for
attending committee meetings.
Section 10. Interested Directors. No contract or transaction
between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers or have a financial interest, shall be
void or voidable solely for this reason, or solely because the director or
officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or
transaction, or solely because the director or officer's vote is counted
for such purpose if (i) the material facts as to the director or officer's
relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the
Board of Directors or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum;
or (ii) the material facts as to the director or officer's relationship or
interest and as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified by the
Board of Directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
ARTICLE IV
OFFICERS*
Section 1. General. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President, a Secretary and
a Treasurer. The Board of Directors, in its discretion, also may choose a
Chairman of the Board of Directors (who must be a director) and one or more
Vice Presidents, Assistant Secretaries, Assistant Treasurers and other
officers. Any number of offices may be held by the same person, unless
otherwise prohibited by law or the Certificate of Incorporation. The
officers of the Corporation need not be stockholders of the Corporation
nor, except in the case of the Chairman of the Board of Directors, need
such officers be directors of the Corporation.
Section 2. Election. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders (or action by
written consent of stockholders in lieu of the Annual Meeting of
Stockholders), shall elect the officers of the Corporation who shall hold
their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of
Directors; and all officers of the Corporation shall hold office until
their successors are chosen and qualified, or until their earlier death,
resignation or removal. Any officer elected by the Board of Directors may
be removed at any time by the affirmative vote of the Board of Directors.
Any vacancy occurring in any office of the Corporation shall be filled by
the Board of Directors. The salaries of all officers of the Corporation
shall be fixed by the Board of Directors.
Section 3. Voting Securities 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 President
or any Vice President or any other officer authorized to do so by the Board
of Directors and 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 power
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, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman
of the Board of Directors, if there be one, shall preside at all meetings
of the stockholders and of the Board of Directors. The Chairman of the
Board of Directors shall be the Chief Executive Officer of the Corporation,
unless the Board of Directors designates the President as the Chief
Executive Officer, and, except where by law the signature of the President
is required, the Chairman of the Board of Directors shall possess the same
power as the President to sign all contracts, certificates and other
instruments of the Corporation which may be authorized by the Board of
Directors. During the absence or disability of the President, the Chairman
of the Board of Directors shall exercise all the powers and discharge all
the duties of the President. The Chairman of the Board of Directors shall
also perform such other duties and may exercise such other powers as may
from time to time be assigned by these By-Laws or by the Board of
Directors.
Section 5. President. The President shall, subject to the
control of the Board of Directors and, if there be one, the Chairman of the
Board of Directors, have general supervision of the business of the
Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The President shall execute all bonds,
mortgages, contracts and other instruments of the Corporation requiring a
seal, under the seal of the Corporation, except where required or permitted
by law to be otherwise signed and executed and except that the other
officers of the Corporation may sign and execute documents when so
authorized by these By-Laws, the Board of Directors or the President. In
the absence or disability of the Chairman of the Board of Directors, or if
there be none, the President shall preside at all meetings of the
stockholders and the Board of Directors. If there be no Chairman of the
Board of Directors, or if the Board of Directors shall otherwise designate,
the President shall be the Chief Executive Officer of the Corporation. The
President shall also perform such other duties and may exercise such other
powers as may from time to time be assigned to such officer by these
By-Laws or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President
or in the President's absence or in the event of the President's inability
or refusal to act (and if there be no Chairman of the Board of Directors),
the Vice President, or the Vice Presidents if there is more than one (in
the order designated by the Board of Directors), shall perform the duties
of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Each Vice President
shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there be no Chairman of the
Board of Directors and no Vice President, the Board of Directors shall
designate the officer of the Corporation who, in the absence of the
President or in the event of the inability or refusal of the President to
act, shall perform the duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President.
Section 7. Secretary. The Secretary shall attend all
meetings of the Board of Directors and all meetings of stockholders and
record all the proceedings thereat in a book or books to be kept for that
purpose; the Secretary shall also perform like duties for committees of
the Board of Directors when required. The Secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special
meetings of the Board of Directors, and shall perform such other duties as
may be prescribed by the Board of Directors, the Chairman of the Board of
Directors or the President, under whose supervision the Secretary shall be.
If the Secretary shall be unable or shall refuse to cause to be given
notice of all meetings of the stockholders and special meetings of the
Board of Directors, and if there be no Assistant Secretary, then either the
Board of Directors or the President may choose another officer to cause
such notice to be given. The Secretary shall have custody of the seal of
the Corporation and the Secretary or any Assistant Secretary, if there be
one, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by the signature of the Secretary
or by the signature of any such Assistant Secretary. The Board of Directors
may give general authority to any other officer to affix the seal of the
Corporation and to attest to the affixing by such officer's signature. The
Secretary shall see that all books, reports, statements, certificates and
other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody
of the corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse the
funds of the Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or when the
Board of Directors so requires, an account of all transactions as Treasurer
and of the financial condition of the Corporation. If required by the Board
of Directors, the Treasurer shall give the Corporation a bond in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of the office of the
Treasurer and for the restoration to the Corporation, in case of the
Treasurer's death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in the
Treasurer's possession or under the Treasurer's control belonging to the
Corporation.
Section 9. Assistant Secretaries. Assistant Secretaries, if
there be any, shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors, the President,
any Vice President, if there be one, or the Secretary, and in the absence
of the Secretary or in the event of the Secretary's disability or refusal
to act, shall perform the duties of the Secretary, and when so acting,
shall have all the powers of and be subject to all the restrictions upon
the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if
there be any, shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors, the President,
any Vice President, if there be one, or the Treasurer, and in the absence
of the Treasurer or in the event of the Treasurer's disability or refusal
to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon
the Treasurer. If required by the Board of Directors, an Assistant
Treasurer shall give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of the office of Assistant Treasurer
and for the restoration to the Corporation, in case of the Assistant
Treasurer's death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in the
Assistant Treasurer's possession or under the Assistant Treasurer's control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board
of Directors may choose shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors. The
Board of Directors may delegate to any other officer of the Corporation the
power to choose such other officers and to prescribe their respective
duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in
the Corporation shall be entitled to have a certificate signed, in the name
of the Corporation (i) by the Chairman of the Board of Directors, the
President or a Vice President and (ii) by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by such stockholder in the
Corporation.
Section 2. Signatures. Any or all of the signatures on a
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 3. Lost Certificates. The Board of Directors may
direct a new certificate to be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate, the Board of Directors may, in
its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate, or the
owner's legal representative, to advertise the same in such manner as the
Board of Directors shall require and/or to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed or the issuance of such new certificate.
Section 4. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these By-Laws.
Transfers of stock shall be made on the books of the Corporation only by
the person named in the certificate or by such person's attorney lawfully
constituted in writing and upon the surrender of the certificate therefor,
which shall be cancelled before a new certificate shall be issued. No
transfer of stock shall be valid as against the Corporation for any purpose
until it shall have been entered in the stock records of the Corporation by
an entry showing from and to whom transferred.
Section 5. Record Date.
(a) 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, the board of directors 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 of Directors, and
which record date shall not be more than sixty nor less than ten days
before the date of such meeting. If no record date is fixed by the Board of
Directors, 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. 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; providing, however, that the Board
of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors 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 of Directors, and which record date shall not be
more than ten days after the date upon which the resolution fixing the
record date is adopted by the Board of Directors. If no record date has
been fixed by the Board of Directors, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors 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 by
delivery to its registered office in this State, its principal place of
business, or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are recorded.
Delivery made to a corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by law, the record date for determining stockhold-
ers entitled to consent to corporate action in writing without a meeting
shall be at the close of business on the day on which the Board of
Directors adopts the resolutions taking such prior action.
(c) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted, and which
record date shall be not more than sixty days prior to such action. If no
record date is fixed, the record date for determining stockholders for
any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 6. Record Owners. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to
hold liable for calls and assessments a person registered on its books as
the owner of shares, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof,
except as otherwise required by law.
- - ------------
* If the Corporation is to become a public company, consideration
should be given to including these provisions in the charter.
* If the Corporation is to become a public company, consideration
should be given to eliminating the ability of a single director to
call a special meeting.
** Section 141(b) of the DGCL permits a corporation to provide in its
charter or by-laws that a number less than a majority constitutes a
quorum, provided that such number is not less than one-third of the
total number of directors. Absent special circumstances, however, a
majority is customary.
* Section 141(c) of the DGCL was amended in 1996 to permit the board
of directors to establish committees without the requirement that
such action be approved by a majority of the whole board. This
provision only applies to (i) corporations formed after July 1,
1996 or (ii) corporations formed prior to July 1, 1996 if a
majority of the whole board has adopted a resolution electing to be
governed by Section 141(c)(2). (SEE RIDER 15-A).
* This section of the by-laws may need to be customized to the
client's management structure for the Corporation.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by
law, the Certificate of Incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee or stockholder, at
such person's address as it appears on the records of the Corporation, with
postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Written
notice may also be given personally or by telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is
required by law, the Certificate of Incorporation or these By-Laws, to be
given to any director, member of a committee or stockholder, a waiver
thereof in writing, signed, by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Attendance of a person at a meeting, present in person
or represented by proxy, shall constitute a waiver of notice of such
meeting, except where the person attends the 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.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the
capital stock of the Corporation, subject to the requirements of the DGCL
and the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting of the
Board of Directors (or any action by written consent in lieu thereof in
accordance with Section 6 of Article III hereof), and may be paid in cash,
in property, or in shares of the Corporation's capital stock. Before pay-
ment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, deems proper as a
reserve or reserves to meet contingencies, or for equalizing dividends,
or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors may modify or abolish any such
reserve.
Section 2. Disbursements. All checks or demands for money
and notes of the Corporation shall be signed by such officer or officers or
such other person or persons as the Board of Directors may from time to
time designate.
Section 3. Fiscal Year. The fiscal year of the
Corporation shall be fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization
and the words "Corporate Seal, Delaware". The seal may be used by causing
it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE VIII
INDEMNIFICATION*
Section 1. Power to Indemnify in Actions, Suits
or Proceedings other than Those by or in the Right of the Corporation.
Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that such person is or
was a director or officer of the Corporation, or is or was a director or
officer of the Corporation serving at the request of the Corporation as a
director or officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding if such person acted in good faith and
in a manner such person reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that such person's conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or
Proceedings by or in the Right of the Corporation. Subject to Section 3
of this Article VIII, the Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that such person is
or was a director or officer of the Corporation, or is or was a director or
officer of the Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action
or suit if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to
be liable to the Corporation unless and only to the extent that the Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any
indemnification under this Article VIII (unless ordered by a court) shall
be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in
the circumstances because such person has met the applicable standard of
conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be. Such determination shall be made (i) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (ii) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written opinion
or (iii) by the stockholders. To the extent, however, that a director or
officer of the Corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding described above, or in defense
of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith, without the necessity of
authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any
determination under Section 3 of this Article VIII, a person shall be
deemed to have acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Corpo-
ration, or, with respect to any criminal action or proceeding, to have
had no reasonable cause to believe such person's conduct was unlawful, if
such person's action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to such
person by the officers of the Corporation or another enterprise in the
course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or
reports made to the Corporation or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected
with reasonable care by the Corporation or another enterprise. The term
"another enterprise" as used in this Section 4 shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan
or other enterprise of which such person is or was serving at the request
of the Corporation as a director, officer, employee or agent. The
provisions of this Section 4 shall not be deemed to be exclusive or to
limit in any way the circumstances in which a person may be deemed to have
met the applicable standard of conduct set forth in Section 1 or 2 of this
Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any
contrary determination in the specific case under Section 3 of this Article
VIII, and notwithstanding the absence of any determination thereunder, any
director or officer may apply to the Court of Chancery in the State of
Delaware for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by
a court shall be a determination by such court that indemnification of the
director or officer is proper in the circumstances because such person has
met the applicable standards of conduct set forth in Section 1 or 2 of this
Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any
determination thereunder shall be a defense to such application or create a
presumption that the director or officer seeking indemnification has not
met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 shall be given to the
Corporation promptly upon the filing of such application. If successful, in
whole or in part, the director or officer seeking indemnification shall
also be entitled to be paid the expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by
a director or officer in defending any civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that such person is
not entitled to be indemnified by the Corporation as authorized in
this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement
of Expenses. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of
expenses may be entitled under the Certificate of Incorporation, any
By-Law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to
action in another capacity while holding such office, it being the policy
of the Corporation that indemnification of the persons specified in
Sections 1 and 2 of this Article VIII shall be made to the fullest extent
permitted by law. The provisions of this Article VIII shall not be deemed
to preclude the indemnification of any person who is not specified in
Section 1 or 2 of this Article VIII but whom the Corporation has the power
or obligation to indemnify under the provisions of the General Corporation
Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director or
officer of the Corporation, or is or was a director or officer of the
Corporation serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against any
liability asserted against such person and incurred by such person in any
such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power or the obligation to indemnify
such person against such liability under the provisions of this Article
VIII.
Section 9. Certain Definitions. For purposes of this Article
VIII, references to "the Corporation" shall 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 or officers, so that any person who is or was a
director or officer of such constituent corporation, or is or was a
director or officer of such constituent corporation serving at the request
of such constituent corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall stand in the same position under
the provisions of this Article VIII with respect to the resulting or
surviving corporation as such person would have with respect to such
constituent corporation if its separate existence had continued. For pur-
poses of this Article VIII, references to "fines" shall include any excise
taxes assessed on a person with respect to an 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 or officer with
respect to an employee benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner such person 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 VIII.
Section 10. Survival of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors
and administrators of such a person.
Section 11. Limitation on Indemnification. Notwithstanding
anything contained in this Article VIII to the contrary, except for
proceedings to enforce rights to indemnification (which shall be governed
by Section 5 hereof), the Corporation shall not be obligated to indemnify
any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors of the Corporation.
Section 12. Indemnification of Employees and Agents. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the
Corporation.
ARTICLE IX
AMENDMENTS*
Section 1. Amendments. These By-Laws may be altered, amended
or repealed, in whole or in part, or new By-Laws may be adopted by the
stockholders or by the Board of Directors, provided, however, that notice
of such alteration, amendment, repeal or adoption of new By-Laws be
contained in the notice of such meeting of stockholders or Board of
Directors as the case may be. All such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled
to vote thereon or by a majority of the entire Board of Directors then in
office.
Section 2. Entire Board of Directors. As used in this
Article IX and in these By-Laws generally, the term "entire Board of
Directors" means the total number of directors which the Corporation would
have if there were no vacancies.
* * *
Adopted as of: October 20, 1997
Last Amended as of: ________________
- - --------------
* If the Corporation is to become a public company, consideration
should be given to having a short form indemnification provision in
the charter in lieu of or in addition to these provisions. (SEE
RIDER 34-A)
* If the Corporation is to become a public company, consideration
should be given to requiring in the charter a supermajority vote
for stockholders to amend some or all of the By-Laws. (SEE RIDER
45-A)
RIDER 2-A
ADVANCE NOTICE PROVISION FOR PROPOSING
BUSINESS AT A STOCKHOLDERS' MEETING
Section . Nature of Business at Meetings of Stockholders. No
business may be transacted at an annual meeting of stockholders, other than
business that is either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors
(or any duly authorized committee thereof), (b) otherwise properly brought
before the annual meeting by or at the direction of the Board of Directors
(or any duly authorized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of the Company (i) who
is a stockholder of record on the date of the giving of the notice
provided for in this Section __ and on the record date for the
determination of stockholders entitled to vote at such annual meeting and
(ii) who complies with the notice procedures set forth in this Section __.
In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a stockholder,
such stockholder must have given timely notice thereof in proper written
form to the Secretary of the Company.
To be timely, a stockholder's notice to the Secretary must
be delivered to or mailed and received at the principal executive offices
of the Company not less than sixty (60) days nor more than ninety (90) days
prior to the anniversary date of the immediately preceding annual meeting
of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within thirty (30) days before or
after such anniversary date, notice by the stockholder in order to be
timely must be so received not later than the close of business on the
tenth (10th) day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to
bring before the annual meeting (i) a brief description of the business
desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and record
address of such stockholder, (iii) the class or series and number of shares
of capital stock of the Company which are owned beneficially or of record
by such stockholder, (iv) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business
by such stockholder and any material interest of such stockholder in such
business and (v) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business before
the meeting.
No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in
accordance with the procedures set forth in this Section __; provided,
however, that, once business has been properly brought before the annual
meeting in accordance with such procedures, nothing in this Section __
shall be deemed to preclude discussion by any stockholder of any such
business. If the Chairman of an annual meeting determines that business was
not properly brought before the annual meeting in accordance with the
foregoing procedures, the Chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business
shall not be transacted.
RIDER 2-B
ADVANCE NOTICE PROVISION FOR
NOMINATION OF DIRECTORS
Section . Nomination of Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible
for election as directors of the Company, except as may be otherwise
provided in the Certificate of Incorporation with respect to the right of
holders of preferred stock of the Corporation to nominate and elect a
specified number of directors in certain circumstances. Nominations of
persons for election to the Board of Directors may be made at any annual
meeting of stockholders, or at any special meeting of stockholders called
for the purpose of electing directors, (a) by or at the direction of the
Board of Directors (or any duly authorized committee thereof) or (b) by
any stockholder of the Company (i) who is a stockholder of record on the
date of the giving of the notice provided for in this Section __ and on
the record date for the determination of stockholders entitled to vote at
such meeting and (ii) who complies with the notice procedures set forth in
this Section __.
In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have given
timely notice thereof in proper written form to the Secretary of the
Company.
To be timely, a stockholder's notice to the Secretary must
be delivered to or mailed and received at the principal executive offices
of the Company (a) in the case of an annual meeting, not less than sixty
(60) days nor more than ninety (90) days prior to the anniversary date of
the immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a date
that is not within thirty (30) days before or after such anniversary date,
notice by the stockholder in order to be timely must be so received not
later than the close of business on the tenth (10th) day following the day
on which such notice of the date of the annual meeting was mailed or such
public disclosure of the date of the annual meeting was made, whichever
first occurs; and (b) in the case of a special meeting of stockholders
called for the purpose of electing directors, not later than the close of
business on the tenth (10th) day following the day on which notice of the
date of the special meeting was mailed or public disclosure of the date of
the special meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder
proposes to nominate for election as a director (i) the name, age, business
address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class or series and
number of shares of capital stock of the Company which are owned
beneficially or of record by the person and (iv) any other information
relating to the person that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the rules and regulations promulgated thereunder; and (b) as to the
stockholder giving the notice (i) the name and record address of such
stockholder, (ii) the class or series and number of shares of capital stock
of the Company which are owned beneficially or of record by such
stockholder, (iii) a description of all arrangements or understandings
between such stockholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to
be made by such stockholder, (iv) a representation that such stockholder
intends to appear in person or by proxy at the meeting to nominate the
persons named in its notice and (v) any other information relating to such
stockholder that would be required to be disclosed in a proxy statement
or other filings required to be made in connection with solicitations of
proxies for election of directors pursuant to Section 14 of the Exchange
Act and the rules and regulations promulgated thereunder. Such notice must
be accompanied by a written consent of each proposed nominee to being named
as a nominee and to serve as a director if elected.
No person shall be eligible for election as a director of
the Company unless nominated in accordance with the procedures set forth in
this Section __. If the Chairman of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.
RIDER 3-A
CHARTER PROVISION DENYING STOCKHOLDERS THE
RIGHT TO CALL A SPECIAL MEETING
______________: Unless otherwise required by law, special meetings
of stockholders, for any purpose or purposes, may be called by either (i)
the Chairman of the Board of Directors, if there be one, (ii) the President
or (iii) the Board of Directors. The ability of the stockholders to call a
special meeting of stockholders is hereby specifically denied.
RIDER 7-A
CHARTER PROVISION ELIMINATING STOCKHOLDERS'
ABILITY TO ACT BY WRITTEN CONSENT
__________: Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of stockholders of the Corporation, and the ability of
the stockholders to consent in writing to the taking of any action is
hereby specifically denied.
RIDER 7-B
FORM OF BY-LAW ESTABLISHING
A PROCEDURE FOR THE BOARD OF
DIRECTORS TO FIX THE RECORD DATE FOR
STOCKHOLDER ACTION BY WRITTEN CONSENT
Section [ ]. In order that the corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors 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 of Directors, and which date shall not be more
than ten (10) days after the date upon which the resolution fixing the
record date is adopted by the Board of Directors. Any stockholder of record
seeking to have the stockholders authorize or take corporate action by
written consent shall, by written notice to the secretary, request the
Board of Directors to fix a record date. The Board of Directors shall
promptly, but in all events within ten (10) days after the date on which
such a request is received, adopt a resolution fixing the record date. If
no record date has been fixed by the Board of Directors within ten (10)
days of the date on which such a request is received, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is
required by applicable 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 by delivery to its registered office in the
State of Delaware, its principal place of business, or an officer or agent
of the corporation having custody of the book in which proceedings of
stockholders meetings are recorded, to the attention of the Secretary of
the corporation. Delivery shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the
Board of Directors and prior action by the Board of Directors is required
by applicable law, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting shall be at the
close of business on the date on which the Board of Directors adopts the
resolution taking such prior action.
RIDER 11-A
CHARTER PROVISION FIXING THE NUMBER OF DIRECTORS,
OR A RANGE IN THE NUMBER OF DIRECTORS
__________: The Board of Directors shall consist of [_________ members]
[not less than __________ nor more than _________ members, the exact number
of which shall initially be fixed by the Incorporator and thereafter from
time to time by the Board of Directors].
RIDER 11-B
CHARTER PROVISION ESTABLISHING
A CLASSIFIED BOARD
__________: The directors shall be divided into three
classes, designated Class I, Class II and Class III. Each class shall
consist, as nearly as may be possible, of one-third of the total number of
directors constituting the entire Board of Directors. The initial division
of the Board of Directors into classes shall be made by the decision of the
affirmative vote of a majority of the entire Board of Directors. The term
of the initial Class I directors shall terminate on the date of the [1998]
annual meeting; the term of the initial Class II directors shall terminate
on the date of the [1999] annual meeting; and the term of the initial Class
III directors shall terminate on the date of the [2000] annual meeting. At
each succeeding annual meeting of stockholders beginning in [1998],
successors to the class of directors whose term expires at that annual
meeting shall be elected for a three-year term. If the number of directors
is changed, any increase or decrease shall be apportioned among the classes
so as to maintain the number of directors in each class as nearly equal as
possible, and any additional director of any class elected to fill a
vacancy resulting from an increase in such class shall hold office for a
term that shall coincide with the remaining term of that class, but in no
case will a decrease in the number of directors shorten the term of any
incumbent director.
RIDER 11-C
CHARTER PROVISION REGARDING REMOVAL OF DIRECTORS
[NOTE: UNDER DGCL ss. 141(k), IF THERE IS A CLASSIFIED BOARD, DIRECTORS MAY
BE REMOVED ONLY FOR CAUSE BY THE HOLDERS OF A MAJORITY OF SHARES ENTITLED
TO VOTE, UNLESS THE CHARTER PROVIDES OTHERWISE. IF THERE IS NO CLASSIFIED
BOARD, DIRECTORS MAY BE REMOVED WITH OR WITHOUT CAUSE BY THE HOLDERS OF A
MAJORITY OF SHARES ENTITLED TO VOTE. IN EITHER CASE, SECTION 102 OF THE
DGCL PERMITS THE CHARTER TO INCREASE THE SHAREHOLDER VOTE REQUIRED FOR
REMOVAL TO A SUPERMAJORITY VOTE]:
__________: Any director or the entire Board of Directors may be removed
from office at any time, [but only for cause,] [with or without cause,] and
only by the affirmative vote of the holders of at least [eighty percent
(80%)] of the voting power of the issued and outstanding capital stock of
the Corporation entitled to vote in the election of directors.
RIDER 15-A
BOARD RESOLUTION FOR CORPORATIONS FORMED PRIOR
TO JULY 1, 1996, ELECTING TO BE GOVERNED BY
SECTION 141(c)(2)
"WHEREAS, a majority of the whole Board of Directors has determined that it
is advisable and in the best interest of the Corporation that the Board's
authority to designate committees of the Board be governed by Section
141(c)(2) of the Delaware General Corporation Law (the "DGCL");
NOW, THEREFORE, BE IT RESOLVED, that the Corporation shall
henceforth be governed by Section 141(c)(2) of the DGCL."
RIDER 34-A
SHORT FORM CHARTER INDEMNIFICATION PROVISION
__________: The Corporation shall indemnify its directors
and officers to the fullest extent authorized or permitted by law, as now
or hereafter in effect, and such right to indemnification shall continue as
to a person who has ceased to be a director or officer of the Corporation
and shall inure to the benefit of his or her heirs, executors and personal
and legal representatives; provided, however, that, except for proceedings
to enforce rights to indemnification, the Corporation shall not be
obligated to indemnify any director or officer (or his or her heirs,
executors or personal or legal representatives) in connection with a
proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized or consented to by the Board of
Directors. The right to indemnification conferred by this Article ______
shall include the right to be paid by the Corporation the expenses incurred
in defending or otherwise participating in any proceeding in advance of its
final disposition.
The Corporation may, to the extent authorized from time to
time by the Board of Directors, provide rights to indemnification and to
the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article _______ to directors and
officers of the Corporation.
The rights to indemnification and to the advance of
expenses conferred in this Article _______ shall not be exclusive of any
other right which any person may have or hereafter acquire under this
Amended and Restated Certificate of Incorporation, the By-Laws of the
Corporation, any statute, agreement, vote of stockholders or disinterested
directors or otherwise.
Any repeal or modification of this Article _______ by the
stockholders of the Corporation shall not adversely affect any rights to
indemnification and to the advancement of expenses of a director or officer
of the Corporation existing at the time of such repeal or modification with
respect to any acts or omissions occurring prior to such repeal or
modification.
RIDER 45-A
CHARTER PROVISION REQUIRING SUPERMAJORITY
VOTE OF THE STOCKHOLDERS TO AMEND BY-LAWS
_______: In furtherance and not in limitation of the powers conferred upon
it by the laws of the State of Delaware, the Board of Directors shall have
the power to adopt, amend, alter or repeal the Corporation's By-Laws. The
affirmative vote of at least a majority of the entire Board of Directors
shall be required to adopt, amend, alter or repeal the Corporation's
By-Laws. The Corporation's By-Laws also may be adopted, amended, altered
or repealed by the affirmative vote of the holders of at least [eighty
percent (80%)] of the voting power of the shares entitled to vote at an
election of directors.