EXHIBIT 3.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is entered into
as of the 28th day of April, 1997 by and between DSP Technology Inc., a
California corporation ("DSP California"), and DSP Technology Inc., a Delaware
corporation ("DSP Delaware").
WITNESSETH:
WHEREAS, DSP Delaware is a corporation duly organized and existing under
the laws of the State of Delaware;
WHEREAS, DSP California is a corporation duly organized and existing under
the laws of the State of California;
WHEREAS, on the date of this Merger Agreement, DSP Delaware has authority
to issue 1,000 shares of Common Stock, par value $.001 per share (the "DSP
Delaware Common Stock"), of which 100 shares are issued and outstanding and
owned by DSP California;
WHEREAS, as of April 25, 1997, the record date of the 1997 Annual Meeting
of Shareholders (the "Annual Meeting"), DSP California has authority to issue
(i) 25,000,000 shares of Common Stock (the "DSP California Common Stock"), of
which 2,180,962 shares are issued and outstanding and (ii) 2,500,000 shares of
Preferred Stock, of which no shares are issued and outstanding;
WHEREAS, the respective Boards of Directors for DSP Delaware and DSP
California have determined that, for the purpose of effecting the
reincorporation of DSP California in the State of Delaware, it is advisable and
to the advantage of said two corporations and their shareholders that DSP
California merge with and into DSP Delaware upon the terms and conditions herein
provided; and
WHEREAS, the respective Boards of Directors of DSP Delaware and DSP
California, the shareholders of DSP California, and the sole stockholder of DSP
Delaware have adopted and approved this Merger Agreement;
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, DSP California and DSP Delaware hereby agree to merge as follows:
1. Merger. DSP California shall be merged with and into DSP Delaware,
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and DSP Delaware shall survive the merger ("Merger"), effective upon the date
when this Merger Agreement is made effective in accordance with applicable law
(the "Effective Date").
2. Governing Documents. The Certificate of Incorporation of DSP Delaware
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shall be amended and restated as in the form attached hereto as Appendix A, and
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shall be the Certificate of Incorporation of the surviving corporation; and the
By-Laws of DSP Delaware shall be amended and restated as in the form attached
hereto as Appendix B, provided, however, that (i) in the event Proposal Four A
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is approved by the requisite vote of the shareholders of DSP California at the
Annual Meeting, Article TENTH of the Certificate of Incorporation attached as
Appendix A shall be deleted; (ii) in the event Proposal Four B is approved by
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the requisite vote of the shareholders of DSP California at the Annual Meeting,
Article SIXTH, Section A of the Certificate of Incorporation attached as
Appendix A and Article 2, Sections 2.2 and 2.12 of the Delaware By-Laws shall
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read in their entirety as set forth on Exhibit 1 hereto; (iii) in the event
Proposal Four C is approved by the requisite vote of the shareholders of DSP
California at the Annual Meeting, a new Article FIFTH, Section C (as set forth
on Exhibit 2 hereto) shall be added to the Certificate of Incorporation attached
as Appendix A and Article 1, Section 1.12 of the Delaware By-Laws shall read in
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its entirety as set forth on Exhibit 2 hereto; (iv) in the event Proposal
1
Four D is approved by the requisite vote of the shareholders of DSP California
at the Annual Meeting, a new Article FIFTH, Section D (as set forth as Exhibit 3
hereto) shall be added to the Certificate of Incorporation
2
attached as Appendix A and Article 1, Section 1.3 of the Delaware By-Laws shall
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read in its entirety as set forth on Exhibit 3 hereto; and (v) in the event
Proposal Four E is approved by the requisite vote of the shareholders of DSP
California at the Annual Meeting, Article SEVENTH and Article NINTH of the
Certificate of Incorporation attached as Appendix A, and Article 6, Section 6.2
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of the Delaware By-Laws shall read as set forth in Exhibit 5 hereto.
3. Directors and Officers. The directors and officers of DSP California
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shall become the directors and officers of DSP Delaware upon the Effective Date.
4. Succession. On the Effective Date, DSP Delaware shall succeed to DSP
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California in the manner of and as more fully set forth in Section 259 of the
General Corporation Law of the State of Delaware.
5. Further Assurances. From time to time, as and when required by DSP
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Delaware or by its successors and assigns, there shall be executed and delivered
on behalf of DSP California such deeds and other instruments, and there shall be
taken or caused to be taken by it such further and other action, as shall be
appropriate or necessary in order to vest, perfect or confirm, of record or
otherwise, in DSP Delaware the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of DSP California, and otherwise to carry out the purposes of this
Merger Agreement and the officers and directors of DSP Delaware are fully
authorized in the name and on behalf of DSP California or otherwise to take any
and all such action and to execute and deliver any and all such deeds and other
instruments.
6. Stock of DSP California. Upon the Effective Date, by virtue of the
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Merger and without any action on the part of the holder thereof, each share of
DSP California Common Stock outstanding immediately prior thereto shall be
changed and converted into one fully paid and nonassessable share of DSP
Delaware Common Stock.
7. Stock Certificates. On and after the Effective Date, all of the
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outstanding certificates which prior to that time represented shares of DSP
California stock shall be deemed for all purposes to evidence ownership of and
to represent the shares of DSP Delaware stock into which the shares of DSP
California stock represented by such certificates have been converted as herein
provided. The registered owner on the books and records of DSP Delaware or its
transfer agent of any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or otherwise accounted for
to DSP Delaware or its transfer agent, have and be entitled to exercise any
voting and other rights with respect to and to receive any dividend and other
distributions upon the shares of DSP Delaware stock evidenced by such
outstanding certificate as above provided.
8. Options. Upon the Effective Date, each outstanding option or other
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right to purchase shares of DSP California stock, including those options
granted under the 1991 Stock Option Plan (the "Option Plan") and the 1991
Outside Directors Stock Option Plan (the "Directors Plan") of DSP California,
shall be converted into and become an option or right to purchase the same
number of shares of DSP Delaware stock at a price per share equal to the
exercise price of the option or right to purchase DSP California stock and upon
the same terms and subject to the same conditions as set forth in the Option
Plan and the Directors Plan, respectively, and other agreements entered into by
DSP California pertaining to such options or rights. A number of shares of DSP
Delaware stock shall be reserved for purposes of such options and rights equal
to the number of shares of DSP California stock so reserved as of the Effective
Date. As of the Effective Date, DSP Delaware shall assume all obligations of
DSP California under agreements pertaining to such options and rights, including
the Option Plan, and the outstanding options or other rights, or portions
thereof, granted pursuant thereto.
9. Other Employee Benefit Plans. As of the Effective Date, DSP Delaware
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hereby assumes all obligations of DSP California under any and all employee
benefit plans in effect as of said date or with respect to which employee rights
or accrued benefits are outstanding as of said date.
10. Outstanding Common Stock of DSP Delaware. Forthwith upon the
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Effective Date, the One Hundred (100) shares of DSP Delaware Common Stock
presently issued and outstanding in the name of DSP California shall be canceled
and retired and resume the status of authorized and unissued shares of DSP
Delaware
3
Common Stock, and no shares of DSP Delaware Common Stock or other securities of
DSP Delaware shall be issued in respect thereof.
11. Covenants of DSP Delaware. DSP Delaware covenants and agrees that it
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will, on or before the Effective Date:
a. Qualify to do business as a foreign corporation in the State of
California, and in all other states in which DSP California is so qualified and
in which the failure so to qualify would have a material adverse impact on the
business or financial condition of DSP Delaware. In connection therewith, DSP
Delaware shall irrevocably appoint an agent for service of process as required
under the provisions of Section 2105 of the California Corporations Code and
under applicable provisions of state law in other states in which qualification
is required hereunder.
b. File any and all documents with the California Franchise Tax
Board necessary to the assumption by DSP Delaware of all of the franchise tax
liabilities of DSP California.
12. Book Entries. As of the Effective Date, entries shall be made upon
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the books of DSP Delaware in accordance with the following:
a. The assets and liabilities of DSP California shall be recorded at
the amounts at which they were carried on the books of DSP California
immediately prior to the Effective Date, with appropriate adjustments to reflect
the retirement of the one hundred (100) shares of DSP Delaware Common Stock
presently issued and outstanding.
b. There shall be credited to the capital stock of DSP Delaware the
aggregate amount of the par value of all shares of DSP Delaware stock resulting
from the conversion of the outstanding California Common Stock pursuant to the
Merger.
c. There shall be credited to the capital surplus account of DSP
Delaware the aggregate of the amounts shown in the capital stock and capital
surplus accounts of DSP California immediately prior to the Effective Date, less
the amount credited to the common stock account of DSP Delaware pursuant to
Paragraph (b) above.
d. There shall be credited to the retained earnings account of DSP
Delaware an amount equal to that carried in the retained earning account of DSP
California immediately prior to the Effective Date.
13. Condition. It shall be a condition precedent to the consummation of
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the Merger and the other transactions contemplated by this Merger Agreement that
the shares of Delaware Common Stock to be issued by DSP Delaware shall, upon
official notice of issuance, be listed on the Nasdaq National Market prior to or
on the Effective Date.
14. Amendment. At any time before or after approval and adoption by the
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shareholders of DSP California, this Merger Agreement may be amended in any
manner as may be determined in the judgment of the respective Boards of
Directors of DSP Delaware and DSP California to be necessary, desirable or
expedient in order to clarify the intention of the parties hereto or to effect
or facilitate the purposes and intent of this Merger Agreement.
15. Abandonment. At any time before the Effective Date, this Merger
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Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either DSP California or DSP Delaware or both, notwithstanding
approval of this Merger Agreement by the sole stockholder of DSP Delaware and
the shareholders of DSP California.
16. Counterparts. In order to facilitate the filing and recording of this
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Merger Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original.
4
IN WITNESS WHEREOF, this Merger Agreement, having first been duly approved
by resolution of the Board of Directors of DSP California and DSP Delaware, is
hereby executed on behalf of each of said two corporations by their respective
officers thereunto duly authorized.
DSP Technology Inc., a Delaware corporation
By: /s/ F. Gil Troutman, Jr.
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F. Gil Troutman, Jr.,
President
ATTEST:
/s/ Jose M. Millares, Jr.
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Jose M. Millares, Jr., Secretary
DSP Technology Inc., a California
corporation
By: /s/ F. Gil Troutman, Jr.
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F. Gil Troutman, Jr.,
President
ATTEST:
/s/ Jose M. Millares, Jr.
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Jose M. Millares, Jr., Secretary
5
Exhibit 1
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CLASSIFIED BOARD OF DIRECTORS REMOVABLE ONLY FOR CAUSE
(Proposal Four B)
In the event Proposals Three and Four B are approved by the requisite vote
of the shareholders, Article Sixth, Section A of the Delaware Certificate shall
read in its entirety as follows:
The number of directors shall initially be four (4) and thereafter shall be
fixed from time to time exclusively by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to
the Board for adoption). Upon the effective date of the merger of DSP
Technology Inc., a California corporation with and into the Corporation
(the "Effective Date") the directors shall be divided into three classes
with the term of office of the first class to expire at the first annual
meeting of the stockholders following the Effective Date, the term of
office of the second class to expire at the second annual meeting of
stockholders held following the Effective Date, the term of office of the
third class to expire at the third annual meeting of stockholders following
the Effective Date, and thereafter for each such term to expire at each
third succeeding annual meeting of stockholders after such election. All
directors shall hold office until the expiration of the term for which
elected, and until their respective successors are elected, except in the
case of the death, resignation, or removal of any director."; and
Article 2, Sections 2.2. and 2.12. of the Delaware By-Laws shall read their
entirety as follows:
"2.2. Number and Term of Office. The number of directors shall initially
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be four (4) and, thereafter, shall be fixed from time to time exclusively
by the Board of Directors pursuant to a resolution adopted by a majority of
the total number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption). Upon the effective
date of the Agreement and Plan of Merger between the Corporation and DSP
Technology Inc., a California corporation (the "Effective Date"), the
directors shall be divided into three classes, with the term of office of
the first class to expire at the first annual meeting of stockholders held
after the Effective Date; the term of office of the second class to expire
at the second annual meeting of stockholders held after the Effective Date;
the term of office of the third class to expire at the third annual meeting
of stockholders held after the Effective Date; and thereafter for each such
term to expire at each third succeeding annual meeting of stockholders
after such election. All directors shall hold office until the expiration
of the term for which elected and until their respective successors are
elected, except in the case of the death, resignation or removal of any
director."
* * * *
"2.12. Removal. Subject to the rights of the holders of any series of
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Preferred Stock then outstanding, any directors, or the entire Board of
Directors, may be removed from office at any time, but only for cause and
only by the affirmative vote of the holders of at least a majority of the
voting power of all of the outstanding shares of capital stock entitled to
vote generally in the election of directors, voting together as a single
class."
Exhibit 2
ELIMINATION OF ACTION BY WRITTEN CONSENT
(Proposal Four C)
In the event Proposals Three and Four C are approved by the requisite vote
of the shareholders, Article Fifth, Section C of the Delaware Certificate shall
read in its entirety as follows:
"C. 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 may not be effected by any consent
in writing by such stockholders."; and
Article 1, Section 1.12. of the Delaware By-Laws shall read in its entirety
as follows:
"1.12. No Stockholder Action Without Meeting. Any action required or
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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 may not be effected by any consent in writing by such
stockholders."
Exhibit 3
LIMITATION ON THE ABILITY TO CALL SPECIAL MEETINGS
(Proposal Four D)
Exhibit 3(A):
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In the event Proposals Three and Four D are approved by the requisite vote
of the shareholders, Article Fifth, Section D of the Delaware Certificate will
read its entirety as follows:
"D. Special meetings of stockholders of the Corporation may be called only
by the Board of Directors, the Chairman of the Board of Directors or the
President and Chief Executive Officer."; and
Exhibit 3(B):
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Article 1, Section 1.3. of the Delaware By-Laws shall read in its entirety
as follows:
"1.3. Special Meetings. Special meetings of Stockholders may be called at
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any time only by the Board of Directors, Chairman of the Board or the
President and Chief Executive Officer."
Exhibit 4
SUPER-MAJORITY VOTE REQUIREMENT FOR AMENDMENT OF THE
DELAWARE CERTIFICATE AND BY-LAWS
(Proposal Four E)
In the event Proposals Three and Four E are approved by the requisite vote
of the shareholders, Article Ninth of the Delaware Certificate shall read in its
entirety as follows:
"The Corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner prescribed
by the laws of the State of Delaware and all rights conferred upon
stockholders are granted subject to this reservation; provided, however,
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that, notwithstanding any other provision of this Certificate of
Incorporation or any provision of law which might otherwise permit a
lesser vote or no vote, but in addition to any vote of the holders of
any class or series of the stock of this Corporation required by law or
by this Certificate of Incorporation, the affirmative vote of the
holders of at least sixty-six and two thirds percent (66 2/3%) of the
voting power of all of the then outstanding shares of the capital stock
of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to amend
or repeal this Article NINTH, Article FIFTH, Article SIXTH, Article
SEVENTH or Article EIGHTH."; and
Article Seventh of the Delaware Certificate shall read in its entirety
as follows:
"The Board of Directors is expressly empowered to adopt, amend or repeal
By-Laws of the Corporation. The stockholders shall also have power to
adopt, amend or repeal the By-Laws of the Corporation. Any adoption,
amendment or repeal of By-Laws of the Corporation by the stockholders
shall require, in addition to any vote of the holders of any class or
series of stock of the Corporation required by law or by this
Certificate of Incorporation, the affirmative vote of the holders of at
least sixty-six and two thirds percent (66 2/3%) of the voting power of
all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors,
voting together as a single class."; and
Article 6, Section 6.2. of the Delaware By-Laws shall read in its
entirety as follows:
"6.2. By the Stockholders. Except as otherwise set forth in these By-
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Laws, these By-Laws may be altered, amended or repealed or new By-Laws
may be adopted by the affirmative vote of the holders of at least sixty-
six and two-thirds percent (66-2/3%) of the shares of the capital stock
of the corporation issued and outstanding and entitled to vote at any
annual meeting of stockholders, or at any special meeting of
stockholders, provided notice of such alteration, amendment, repeal or
adoption of new By-Laws shall have been stated in the notice of such
special meeting."
APPENDIX A
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CERTIFICATE OF INCORPORATION
OF DSP TECHNOLOGY INC.
FIRST: The name of the Corporation is DSP Technology Inc. (hereinafter
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sometimes referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in the State
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of Delaware is Incorporating Services, Ltd., 15 East North Street, in
the City of Dover, County of Kent. The name of the registered agent
at that address is Incorporating Services, Ltd.
THIRD: The purpose of the Corporation is to engage in any lawful act or
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activity for which a corporation may be organized under the General
Corporation Law of Delaware.
FOURTH:
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A. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Sixteen Million Shares
(16,000,000) consisting of:
1. Fifteen Million (15,000,000) shares of Common Stock, par value one-
tenth of one cent ($.001) per share (the "Common Stock"); and
2. One Million (1,000,000) shares of Preferred Stock, par value one-tenth
of one cent ($.001) per share (the "Preferred Stock").
B. The Board of Directors is authorized, subject to any limitations
prescribed by law, to provide for the issuance of shares of Preferred
Stock in series and, by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to
time the number of shares to be included in each such series, and to
fix the designation, powers, preferences and rights of the shares of
each such series and any qualifications, limitations or restrictions
thereon. The number of authorized shares of Preferred Stock may be
increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority
of the Common Stock without a vote of the holders of the Preferred
Stock, or of any series thereof, unless a vote of any such holders is
required pursuant to the certificate or certificates establishing the
series of Preferred Stock.
FIFTH: The following provisions are inserted for the management of the
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business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the
powers and authority expressly conferred upon them by statute or by
this Certificate of Incorporation or the By-Laws of the Corporation,
the directors are hereby empowered to exercise all such powers and do
all such acts and things as may be exercised or done by the
Corporation.
B. The directors of the Corporation need not be elected by written ballot
unless the By-Laws so provide.
A-1
SIXTH:
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A. The number of directors shall initially be four (4) and thereafter
shall be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution is
presented to the Board for adoption). All directors shall hold office
until the expiration of the term for which elected, and until their
respective successors are elected, except in the case of the death,
resignation, or removal of any director.
B. Subject to the rights of the holders of any series of Preferred Stock
then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the
Board of Directors resulting from death, resignation or other cause
(including removal from office by a vote of the stockholders) may be
filled only by a majority vote of the directors then in office, though
less than a quorum, or by the sole remaining director, and directors
so chosen shall hold office for a term expiring at the next annual
meeting of stockholders, and until their respective successors are
elected, except in the case of the death, resignation, or removal of
any director.
SEVENTH: The Board of Directors is expressly empowered to adopt, amend or
- ------- repeal By-Laws of the Corporation. The stockholders shall also have
power to adopt, amend or repeal the By-Laws of the Corporation. Any
adoption, amendment or repeal of By-Laws of the Corporation by the
stockholders shall require, in addition to any vote of the holders of
any class or series of stock of the Corporation required by law or by
this Certificate of Incorporation, the affirmative vote of the holders
of a majority of the voting power of all of the then outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single
class.
EIGHTH: A director of the Corporation shall not be personally liable to the
- ------ Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involved intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or
(iv) for any transaction from which the director derived an improper
personal benefit.
If the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability of a
director, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing provisions of this Article
EIGHTH by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
NINTH: The Corporation reserves the right to amend or repeal any provision
- ----- contained in this Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware and all rights
conferred upon stockholders are granted subject to this reservation;
provided, however, that, notwithstanding any other provision of this
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Certificate of Incorporation or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any vote
of the holders of any class or series of the stock of this Corporation
required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of a majority of the voting power of
all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required to amend or
repeal this Certificate of Incorporation.
A-2
TENTH Every stockholder entitled to vote at any election of directors of
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this company may cumulate his votes and give one candidate a number of
votes equal to the number of directors to be elected multiplied by the
number of votes to which his shares are entitled, or distribute his
votes on the same principle among as many candidates as he thinks fit.
The candidates receiving the highest number of votes up to the number
of directors to be elected are elected.
APPENDIX B
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BY-LAWS OF DSP TECHNOLOGY INC. (DELAWARE)
Article 1. Stockholders
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PLACE OF MEETINGS. ALL MEETINGS OF STOCKHOLDERS SHALL BE HELD AT SUCH PLACE
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WITHIN OR WITHOUT THE STATE OF DELAWARE AS MAY BE DESIGNATED FROM TIME TO TIME
BY THE BOARD OF DIRECTORS OR THE PRESIDENT AND CHIEF EXECUTIVE OFFICER OR, IF
NOT SO DESIGNATED, AT THE REGISTERED OFFICE OF THE CORPORATION.
ANNUAL MEETING. THE ANNUAL MEETING OF STOCKHOLDERS FOR THE ELECTION OF
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DIRECTORS AND FOR THE TRANSACTION OF SUCH OTHER BUSINESS AS MAY PROPERLY BE
BROUGHT BEFORE THE MEETING SHALL BE HELD ON A DATE TO BE FIXED BY THE BOARD OF
DIRECTORS OR THE PRESIDENT AND CHIEF EXECUTIVE OFFICER AT THE TIME AND PLACE TO
BE FIXED BY THE BOARD OF DIRECTORS OR THE PRESIDENT AND STATED IN THE NOTICE OF
THE MEETING. IF NO ANNUAL MEETING IS HELD IN ACCORDANCE WITH THE FOREGOING
PROVISIONS, THE BOARD OF DIRECTORS SHALL CAUSE THE MEETING TO BE HELD AS SOON
THEREAFTER AS CONVENIENT.
SPECIAL MEETINGS. SPECIAL MEETINGS OF STOCKHOLDERS MAY BE CALLED AT ANY TIME
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ONLY BY THE BOARD OF DIRECTORS, THE CHAIRMAN OF THE BOARD, THE PRESIDENT AND
CHIEF EXECUTIVE OFFICER OR THE HOLDERS OF 10% OR MORE OF THE OUTSTANDING VOTING
POWER OF THE CORPORATION. BUSINESS TRANSACTED AT ANY SPECIAL MEETING OF
STOCKHOLDERS SHALL BE CONFINED TO THE PURPOSE OR PURPOSES STATED IN THE NOTICE
OF MEETING.
NOTICE OF MEETINGS. WRITTEN NOTICE OF EACH MEETING OF STOCKHOLDERS, WHETHER
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ANNUAL OR SPECIAL, SHALL BE GIVEN NOT LESS THAN TEN (10) NOR MORE THAN SIXTY
(60) DAYS BEFORE THE DATE ON WHICH THE MEETING IS TO BE HELD, TO EACH
STOCKHOLDER ENTITLED TO VOTE AT SUCH MEETING, EXCEPT AS OTHERWISE PROVIDED
HEREIN OR AS REQUIRED BY LAW (MEANING HERE AND HEREAFTER, AS REQUIRED FROM TIME
TO TIME BY THE DELAWARE GENERAL CORPORATION LAW OR THE CERTIFICATE OF
INCORPORATION). THE NOTICES OF ALL MEETINGS SHALL STATE THE PLACE, DATE AND
HOUR OF THE MEETING. THE NOTICE OF A SPECIAL MEETING SHALL STATE, IN ADDITION,
THE PURPOSE OR PURPOSES FOR WHICH THE MEETING IS CALLED. IF MAILED, NOTICE IS
GIVEN WHEN DEPOSITED IN THE UNITED STATES MAIL, POSTAGE PREPAID, DIRECTED TO THE
STOCKHOLDER AT HIS ADDRESS AS IT APPEARS ON THE RECORDS OF THE CORPORATION.
VOTING LIST. THE OFFICER WHO HAS CHARGE OF THE STOCK LEDGER OF THE CORPORATION
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SHALL PREPARE, AT LEAST TEN (10) DAYS BEFORE EACH MEETING OF STOCKHOLDERS, A
COMPLETE LIST OF THE STOCKHOLDERS ENTITLED TO VOTE AT THE MEETING, ARRANGED IN
ALPHABETICAL ORDER, AND SHOWING THE ADDRESS OF EACH STOCKHOLDER AND THE NUMBER
OF SHARES REGISTERED IN THE NAME OF EACH STOCKHOLDER. SUCH LIST SHALL BE OPEN
TO THE EXAMINATION OF ANY STOCKHOLDER, FOR ANY PURPOSE GERMANE TO THE MEETING,
DURING ORDINARY BUSINESS HOURS, FOR A PERIOD OF AT LEAST TEN (10) DAYS PRIOR TO
THE MEETING, 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 OF THE
MEETING, AND MAY BE INSPECTED BY ANY STOCKHOLDER WHO IS PRESENT. THIS LIST
SHALL PREEMPTIVELY
DETERMINE THE IDENTITY OF THE STOCKHOLDERS ENTITLED TO VOTE AT THE MEETING AND
THE NUMBER OF SHARES HELD BY EACH OF THEM.
QUORUM. EXCEPT AS OTHERWISE PROVIDED BY LAW OR THESE BY-LAWS, THE HOLDERS OF A
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MAJORITY OF THE SHARES OF THE CAPITAL STOCK OF THE CORPORATION ENTITLED TO VOTE
AT THE MEETING, PRESENT IN PERSON OR REPRESENTED BY PROXY, SHALL CONSTITUTE A
QUORUM FOR THE TRANSACTION OF BUSINESS. IF A QUORUM SHALL FAIL TO ATTEND ANY
MEETING, THE CHAIRMAN OF THE MEETING OR THE HOLDERS OF A MAJORITY OF THE SHARES
OF STOCK ENTITLED TO VOTE WHO ARE PRESENT, IN PERSON OR BY PROXY, MAY ADJOURN
THE MEETING TO ANOTHER PLACE, DATE OR TIME.
If a notice of any adjourned special meeting of stockholders is sent to all
stockholders entitled to vote thereat, stating that it will be held with those
present constituting a quorum, then except as otherwise required by law, those
present at such adjourned meeting shall constitute a quorum, and all matters
shall be determined by a majority of the votes cast at such meeting.
ADJOURNMENTS. ANY MEETING OF STOCKHOLDERS MAY BE ADJOURNED TO ANY OTHER TIME
- ------------
AND TO ANY OTHER PLACE AT WHICH A MEETING OF STOCKHOLDERS MAY BE HELD UNDER
THESE BY-LAWS BY THE HOLDERS OF A MAJORITY OF THE SHARES OF STOCK PRESENT OR
REPRESENTED AT THE MEETING AND ENTITLED TO VOTE, ALTHOUGH LESS THAN A QUORUM,
OR, IF NO STOCKHOLDER IS PRESENT, BY ANY OFFICER ENTITLED TO PRESIDE AT OR TO
ACT AS SECRETARY OF SUCH MEETING. WHEN A MEETING IS ADJOURNED TO ANOTHER PLACE,
DATE OR TIME, WRITTEN NOTICE NEED NOT BE GIVEN OF THE ADJOURNED MEETING IF THE
PLACE, DATE AND TIME THEREOF ARE ANNOUNCED AT THE MEETING AT WHICH THE
ADJOURNMENT IS TAKEN; PROVIDED, HOWEVER, THAT IF THE DATE OF ANY ADJOURNED
MEETING IS MORE THAN THIRTY (30) DAYS AFTER THE DATE FOR WHICH THE MEETING WAS
ORIGINALLY NOTICED, OR IF A NEW RECORD DATE IS FIXED FOR THE ADJOURNED MEETING,
WRITTEN NOTICE OF THE PLACE, DATE, AND TIME OF THE ADJOURNED MEETING SHALL BE
GIVEN IN CONFORMITY HEREWITH. AT THE ADJOURNED MEETING, THE CORPORATION MAY
TRANSACT ANY BUSINESS WHICH MIGHT HAVE BEEN TRANSACTED AT THE ORIGINAL MEETING.
VOTING AND PROXIES. EACH STOCKHOLDER SHALL HAVE ONE VOTE FOR EACH SHARE OF
- ------------------
STOCK ENTITLED TO VOTE HELD OF RECORD BY SUCH STOCKHOLDER AND A PROPORTIONATE
VOTE FOR EACH FRACTIONAL SHARE SO HELD, UNLESS OTHERWISE PROVIDED BY LAW. EACH
STOCKHOLDER OF RECORD ENTITLED TO VOTE AT A MEETING OF STOCKHOLDERS, MAY VOTE IN
PERSON OR MAY AUTHORIZE ANY OTHER PERSON OR PERSONS TO VOTE OR ACT FOR HIM BY
WRITTEN PROXY EXECUTED BY THE STOCKHOLDER OR HIS AUTHORIZED AGENT OR BY A
TRANSMISSION PERMITTED BY LAW AND DELIVERED TO THE SECRETARY OF THE CORPORATION.
NO STOCKHOLDER MAY AUTHORIZE MORE THAN ONE PROXY FOR HIS SHARES. ANY COPY,
FACSIMILE TELECOMMUNICATION OR OTHER RELIABLE REPRODUCTION OF THE WRITING OR
TRANSMISSION CREATED PURSUANT TO THIS SECTION MAY BE SUBSTITUTED OR USED IN LIEU
OF THE ORIGINAL WRITING OR TRANSMISSION FOR ANY AND ALL PURPOSES FOR WHICH THE
ORIGINAL WRITING OR TRANSMISSION COULD BE USED, PROVIDED THAT SUCH COPY,
FACSIMILE TRANSMISSION OR OTHER REPRODUCTION SHALL BE A COMPLETE REPRODUCTION OF
THE ENTIRE ORIGINAL WRITING OR TRANSMISSION.
ACTION AT MEETING. WHEN A QUORUM IS PRESENT AT ANY MEETING, ANY ELECTION SHALL
- -----------------
BE DETERMINED BY A PLURALITY OF THE VOTES CAST BY THE STOCKHOLDERS ENTITLED TO
VOTE AT THE ELECTION, AND ALL OTHER MATTERS SHALL BE DETERMINED BY A MAJORITY OF
THE VOTES CAST AFFIRMATIVELY OR NEGATIVELY ON THE MATTER (OR IF THERE ARE TWO OR
MORE CLASSES OF STOCK ENTITLED TO VOTE AS SEPARATE CLASSES, THEN IN THE CASE OF
EACH SUCH CLASS, A MAJORITY OF EACH SUCH CLASS PRESENT OR REPRESENTED AND VOTING
AFFIRMATIVELY OR NEGATIVELY ON THE MATTER) SHALL DECIDE SUCH MATTER, EXCEPT WHEN
A DIFFERENT VOTE IS REQUIRED BY EXPRESS PROVISION OF LAW, THE CERTIFICATE OF
INCORPORATION OR THESE BY-LAWS.
All voting, including on the election of directors, but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his or her proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballots, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
Every vote taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting. The corporation may, and to the
extent required by law, shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting and make a
written report thereof. The corporation may designate one or more persons as an
alternate inspector to replace any inspector who fails to act. If no inspector
or alternate is able to act at a meeting of stockholders, the person presiding
at the meeting may, and to the extent required by law, shall, appoint one or
more inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his or
her ability.
NOTICE OF STOCKHOLDER BUSINESS. AT AN ANNUAL MEETING OF THE STOCKHOLDERS, ONLY
- ------------------------------
SUCH BUSINESS SHALL BE CONDUCTED AS SHALL HAVE BEEN PROPERLY BROUGHT BEFORE THE
MEETING. TO BE PROPERLY BROUGHT BEFORE AN ANNUAL MEETING, BUSINESS MUST BE
(I) SPECIFIED IN THE NOTICE OF MEETING (OR ANY SUPPLEMENT THERETO) GIVEN BY OR
AT THE DIRECTION OF THE BOARD OF DIRECTORS, (II) PROPERLY BROUGHT BEFORE THE
MEETING BY OR AT THE DIRECTION OF THE BOARD OF DIRECTORS, OR (III) PROPERLY
BROUGHT BEFORE AN ANNUAL MEETING BY A STOCKHOLDER. FOR BUSINESS TO BE PROPERLY
BROUGHT BEFORE AN ANNUAL MEETING BY A STOCKHOLDER, THE STOCKHOLDER MUST HAVE
GIVEN TIMELY NOTICE THEREOF IN WRITING TO THE SECRETARY OF THE CORPORATION. TO
BE TIMELY, A STOCKHOLDER PROPOSAL TO BE PRESENTED AT AN ANNUAL MEETING SHALL BE
RECEIVED AT THE CORPORATION'S PRINCIPAL EXECUTIVE OFFICES NOT LESS THAN 120
CALENDAR DAYS IN ADVANCE OF THE DATE THAT THE CORPORATION'S (OR THE
CORPORATION'S PREDECESSOR'S) PROXY STATEMENT WAS RELEASED TO STOCKHOLDERS IN
CONNECTION WITH THE PREVIOUS YEAR'S ANNUAL MEETING OF STOCKHOLDERS, EXCEPT THAT
IF NO ANNUAL MEETING WAS HELD IN THE PREVIOUS YEAR OR THE DATE OF THE ANNUAL
MEETING HAS BEEN ADVANCED BY MORE THAN 30 CALENDAR DAYS FROM THE DATE
CONTEMPLATED AT THE TIME OF THE PREVIOUS YEAR'S PROXY STATEMENT, NOTICE BY THE
STOCKHOLDERS TO BE TIMELY MUST BE RECEIVED NOT LATER THAN THE CLOSE OF BUSINESS
ON THE TENTH DAY FOLLOWING THE DAY ON WHICH THE DATE OF THE ANNUAL MEETING IS
PUBLICLY ANNOUNCED.
A stockholder's notice to the Secretary of the Corporation shall set forth
as to each matter the stockholder proposes to bring before the annual meeting
(i) a brief description of the business desired to be brought before the annual
meeting, (ii) the name and address, as they appear on the Corporation's books,
of the stockholder proposing such business, (iii) the class and number of shares
of the Corporation which are beneficially owned by the stockholder, and (iv) any
material interest of the stockholder in such business.
CONDUCT OF BUSINESS. AT EVERY MEETING OF THE STOCKHOLDERS, THE CHAIRMAN OF THE
- -------------------
BOARD, IF THERE IS SUCH AN OFFICER, OR IF NOT, THE PERSON APPOINTED BY THE BOARD
OF DIRECTORS, SHALL ACT AS CHAIRMAN. THE SECRETARY OF THE CORPORATION OR A
PERSON DESIGNATED BY THE CHAIRMAN OF THE MEETING SHALL ACT AS SECRETARY OF THE
MEETING. UNLESS OTHERWISE APPROVED BY THE CHAIRMAN OF THE MEETING, ATTENDANCE
AT THE STOCKHOLDERS' MEETING IS RESTRICTED TO STOCKHOLDERS OF RECORD, PERSONS
AUTHORIZED IN ACCORDANCE WITH SECTION 1.8 OF THESE BY-LAWS TO ACT BY PROXY, AND
OFFICERS OF THE CORPORATION.
The Chairman of the meeting shall call the meeting to order, establish the
agenda, and conduct the business of the meeting in accordance therewith or, at
the Chairman's discretion, it may be conducted otherwise in accordance with the
wishes of the stockholders in attendance. The date and time of the opening and
closing of the polls for each matter upon which the stockholders will vote at
the meeting shall be announced at the meeting.
The Chairman shall also conduct the meeting in an orderly manner, rule on
the precedence of, and procedure on, motions and other procedural matters, and
exercise discretion with respect to such procedural matters with fairness and
good faith toward all those entitled to take part. The Chairman may impose
reasonable limits on the amount of time taken up at the meeting on discussion in
general or on remarks by any one stockholder. Should any person in attendance
become unruly or obstruct the meeting proceedings, the Chairman shall have the
power to have such person removed from participation. Notwithstanding anything
in the By-Laws to the contrary, no business shall be conducted at a meeting
except in accordance with the procedures set forth in this Section 1.11 and
Section 1.10 above. The Chairman of a meeting shall, if the facts warrant,
determine and declare to the meeting that any proposed item of business was not
brought before the meeting in accordance with the provisions of this
Section 1.11 and Section 1.10, and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
STOCKHOLDER ACTION BY WRITTEN CONSENT. ANY ACTION WHICH MAY BE TAKEN AT ANY
- -------------------------------------
ANNUAL OR SPECIAL MEETING OF STOCKHOLDERS MAY BE TAKEN WITHOUT A MEETING AND
WITHOUT PRIOR NOTICE, IF A CONSENT IN WRITING, SETTING FORTH THE ACTIONS SO
TAKEN, IS SIGNED BY THE HOLDERS OF OUTSTANDING SHARES HAVING NOT LESS THAN THE
MINIMUM NUMBER OF VOTES WHICH WOULD BE NECESSARY TO AUTHORIZE OR TAKE SUCH
ACTION AT A MEETING AT WHICH ALL SHARES ENTITLED TO VOTE THEREON WERE PRESENT
AND VOTED. ALL SUCH CONSENTS SHALL BE FILED WITH THE SECRETARY OF THE
CORPORATION AND SHALL BE MAINTAINED IN THE CORPORATE RECORDS. PROMPT NOTICE OF
THE TAKING OF A CORPORATE ACTION WITHOUT A MEETING BY LESS THAN UNANIMOUS
WRITTEN CONSENT SHALL BE GIVEN TO THOSE STOCKHOLDERS WHO HAVE NOT CONSENTED IN
WRITING.
Article 2. Board of Directors
------------------
2.1. General Powers. The business and affairs of the corporation shall be
--------------
managed by or under the direction of a Board of Directors, who may exercise all
of the powers of the corporation except as otherwise provided by law or the
Certificate of Incorporation. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
2.2. Number and Term of Office. The number of directors shall initially be
-------------------------
four (4) and, thereafter, shall be fixed from time to time exclusively by the
Board of Directors pursuant to a resolution adopted by a majority of the total
number of authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution is presented
to the Board for adoption). All directors shall hold office until the
expiration of the term for which elected and until their respective successors
are elected, except in the case of the death, resignation or removal of any
director.
2.3. Vacancies and Newly Created Directorships Subject to the rights of
-----------------------------------------
the holders of any series of Preferred Stock then outstanding, newly created
directorships resulting from any increase in the authorized number of directors
or any vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification or other cause (including removal from office by a
vote of the stockholders) may be filled only by a majority vote of the directors
then in office, though less than a quorum, and directors so chosen shall hold
office for a term expiring at the next annual meeting of stockholders at which
the term of office of the class to which they have been elected expires. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
2.4. Resignation. Any director may resign by delivering his written
-----------
resignation to the corporation at its principal office or to the President or
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
2.5. Regular Meetings. Regular meetings of the Board of Directors may be
----------------
held without notice at such time and place, either within or without the State
of Delaware, as shall be determined from time to time by the Board of Directors;
provided that any director who is absent when such a determination is made shall
be given notice of the determination. A regular meeting of the Board of
Directors may be held without notice immediately after and at the same place as
the annual meeting of stockholders.
2.6. Special Meetings. Special meetings of the Board of Directors may be
----------------
called at any time and place, within or without the State of Delaware, by the
Chairman of the Board, the President and Chief Executive Officer, two or more
directors, or by one director in the event that there is only a single director
in office.
2.7. Notice of Special Meetings. Notice of any special meeting of
--------------------------
directors shall be given to each director by the Secretary or by the officer or
one of the directors calling the meeting. Notice shall be duly given to each
director (i) by giving notice to such director in person or by telephone or
electronic voice message system at least 24 hours in advance of the meeting,
(ii) by sending a telegram, telecopy or telex, or delivering written notice by
hand, to his last known business or home address at least 24 hours in advance of
the meeting, or (iii) by mailing written notice to his last known business or
home address at least three (3) day in advance of the meeting. A notice or
waiver of notice of a meeting of the Board of Directors need not specify the
purposes of the meeting. Unless otherwise indicated in the notice thereof, any
and all business may be transacted at a special meeting.
2.8. Participation in Meetings by Telephone Conference Calls. Directors or
-------------------------------------------------------
any members of any committee designated by the directors may participate in a
meeting of the Board of Directors or such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation by such
means shall constitute presence in person at such meeting.
2.9. Quorum. A majority of the total number of authorized directors shall
------
constitute a quorum at any meeting of the Board of Directors. In the event one
or more of the directors shall be disqualified to vote at any meeting, then the
required quorum shall be reduced by one for each such director so disqualified;
provided, however, that in no case shall less than one-third (1/3) of the number
so fixed constitute a quorum. In the absence of a quorum at any such meeting, a
majority of the directors present may adjourn the meeting from time to time
without further notice other than announcement at the meeting, until a quorum
shall be present. Interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or at a meeting of a
committee which authorizes a particular contract or transaction.
2.10 Action at Meeting. At any meeting of the Board of Directors at which
-----------------
a quorum is present, the vote of a majority of those present shall be sufficient
to take any action, unless a different vote is specified by law, the Certificate
of Incorporation or these By-Laws.
2.11. Action by Consent. Any action required or permitted to be taken at
-----------------
any meeting of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent to the action in writing. Any such
written consents shall be filed with the minutes of proceedings of the Board or
committee.
2.12. Removal. Subject to the rights of the holders of any series of
-------
Preferred Stock then outstanding, any directors, or the entire Board of
Directors, may be removed from office at any time, but only by the affirmative
vote of the holders of at least a majority of the voting power of all of the
outstanding shares of capital stock entitled to vote generally in the election
of directors, voting together as a single class.
2.13. 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, with such lawfully delegated powers and duties as it therefor
confers, to serve at the pleasure of the Board. The Board may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members of the
committee present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board of Directors and subject to the
provisions of the General Corporation Law of the State of Delaware, 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
such committee shall keep minutes and make such reports as the Board of
Directors may from time to time request. Except as the Board of Directors may
otherwise determine, any committee may make rules for the conduct of its
business, but unless otherwise provided by such rules, its business shall be
conducted as nearly as possible in the same manner as is provided in these By-
Laws for the Board of Directors.
2.14. Compensation of Directors. Directors may be paid such compensation
-------------------------
for their services and such reimbursement for expenses of attendance at meetings
as the Board of Directors may from time to the determine. No such payment shall
preclude any director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
2.15. Nomination of Director Candidates. Subject to the rights of holders
---------------------------------
of any class or series of Preferred Stock then outstanding, nominations for the
election of Directors may be made by the Board of Directors or a proxy committee
appointed by the Board of Directors or by any stockholder entitled to vote in
the election of Directors generally. However, any stockholder entitled to vote
in the election of Directors generally may nominate one or more persons for
election as Directors at a meeting only if timely notice of such stockholder's
intent to make such nomination or nominations has been given in writing to the
Secretary of the Corporation. To be timely, a stockholder nomination for a
director to be elected at an annual meeting shall be received at the
Corporation's principal executive offices not less than 120 calendar days in
advance of the date that the Corporation's (or the Corporation's
predecessor's) proxy statement was released to stockholders in connection with
the previous year's annual meeting of stockholders, except that if no annual
meeting was held in the previous year or the date of the annual meeting has been
changed by more than 30 calendar days from the date contemplated at the time of
the previous year's proxy statement, or in the event of a nomination for
director to be elected at a special meeting, notice by the stockholders to be
timely must be received not later than the close of business on the tenth day
following the day on which such notice of the date of the special meeting was
mailed or such public disclosure was made. Each such notice shall set forth:
(a) the name and address of the stockholder who intends to make the nomination
and of the person or persons to be nominated; (b) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote
for the election of directors on the date of such notice and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (c) a description of all arrangements or understandings between
the stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (d) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission, had the nominee been nominated, or intended to be nominated, by the
Board of Directors; and (e) the consent of each nominee to serve as a director
of the Corporation if so elected.
In the event that a person is validly designated as a nominee in accordance
with this Section 2.15 and shall thereafter become unable or unwilling to stand
for election to the Board of Directors, the Board of Directors or the
stockholder who proposed such nominee, as the case may be, may designate a
substitute nominee upon delivery, not fewer than five days prior to the date of
the meeting for the election of such nominee, of a written notice to the
Secretary setting forth such information regarding such substitute nominee as
would have been required to be delivered to the Secretary pursuant to this
Section 2.15 had such substitute nominee been initially proposed as a nominee.
Such notice shall include a signed consent to serve as a director of the
Corporation, if elected, of each such substitute nominee.
If the chairman of the meeting for the election of Directors determines
that a nomination of any candidate for election as a Director at such meeting
was not made in accordance with the applicable provisions of this Section 2.15,
such nomination shall be void; provided, however, that nothing in this
Section 2.15 shall be deemed to limit any voting rights upon the occurrence of
dividend arrearages provided to holders of Preferred Stock pursuant to the
Preferred Stock designation for any series of Preferred Stock.
Article 3. Officers
--------
3.1. Enumeration. The officers of the corporation shall consist of a
-----------
President and Chief Executive Officer, a Secretary, a Chief Financial Officer
and such other officers with such other titles as the Board of Directors shall
determine, including, at the discretion of the Board of Directors, a Chairman of
the Board, and one or more Vice Presidents and Assistant Secretaries. The Board
of Directors may appoint such other officers as it may deem appropriate.
3.2. Election. Officers shall be elected annually by the Board of
--------
Directors at its first meeting following the annual meeting of stockholders.
Officers may be appointed by the Board of Directors at any other meeting.
3.3. Qualification. No officer need be a stockholder. Any two or more
-------------
offices may be held by the same person.
3.4. Tenure. Except as otherwise provided by law, by the Certificate of
------
Incorporation or by these By-Laws, each officer shall hold office until his
successor is elected and qualified, unless a different term is specified in the
vote appointing him, or until his earlier death, resignation or removal.
3.5. Resignation and Removal. Any officer may resign by delivering his
-----------------------
written resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon receipt unless
it is specified to be effective at some other time or upon the happening of some
other event. Any officer may be removed at any time, with or without cause, by
the Board of Directors.
3.6. Chairman of the Board. The Board of Directors may appoint a Chairman
---------------------
of the Board. If the Board of Directors appoints a Chairman of the Board, he
shall perform such duties and possess such powers as are assigned to him by the
Board of Directors. Unless otherwise provided by the Board of Directors, he
shall preside at all meetings of the stockholders, and, if he is a director, at
all meetings of the Board of Directors.
3.7. President. The President shall, subject to the direction of the Board
---------
of Directors, have responsibility for the general management and control of the
business and affairs of the Corporation and shall perform all duties and have
all powers which are commonly incident to the office of chief executive or which
are delegated to him or her by the Board of Directors. The President shall be
the Chief Executive Officer of the corporation. The President shall perform
such other duties and shall have such other powers as the Board of Directors may
from time to time prescribe. He or she shall have power to sign stock
certificates, contracts and other instruments of the Corporation which are
authorized and shall have general supervision and direction of all of the other
officers, employees and agents of the Corporation, other than the Chairman of
the Board.
3.8. Vice Presidents. Any Vice President shall perform such duties and
---------------
possess such powers as the Board of Directors or the President may from time to
time prescribe. In the event of the absence, inability or refusal to act of the
President, the Vice President (or if there shall be more than one, the Vice
Presidents in the order determined by the Board of Directors) shall perform the
duties of the President and when so performing shall have at the powers of and
be subject to all the restrictions upon the President. The Board of Directors
may assign to any Vice President the title of Executive Vice President, Senior
Vice President or any other title selected by the Board of Directors.
3.9. Secretary and Assistant Secretaries. The Secretary shall perform such
-----------------------------------
duties and shall have such powers as the Board of Directors or the President may
from time to time prescribe. In addition, the Secretary shall perform such
duties and have such powers as are incident to the office of the Secretary,
including, without limitation, the duty and power to give notices of all
meetings of stockholders and special meetings of the Board of Directors, to keep
a record of the proceedings of all meetings of stockholders and the Board of
Directors, to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records and the
corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such powers
as the Board of Directors, the President or the Secretary may from time to time
prescribe. In the event of the absence, inability or refusal to act of the
Secretary, the Assistant Secretary (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting
of stockholders or directors, the person presiding at the meeting shall
designate a temporary secretary to keep a record of the meeting.
3.10. Chief Financial Officer. Unless otherwise designated by the Board
-----------------------
of Directors, the Chief Financial Officer shall be the Treasurer. The Chief
Financial Officer shall perform such duties and shall have such powers as may
from time to time be assigned to him by the Board of Directors or the President.
In addition, the Chief Financial Officer shall perform such duties and have such
powers as are incident to the office of chief financial officer, including
without limitation, the duty and power to keep and be responsible for all funds
and securities of the corporation, to maintain the financial records of the
Corporation, to deposit funds of the corporation in depositories as authorized,
to disburse such funds as authorized, to make proper accounts of such funds, and
to render as required by the Board of Directors accounts of all such
transactions and of the financial condition of the corporation.
3.11. Salaries. Officers of the corporation shall be entitled to such
--------
salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
3.12. Delegation of Authority. The Board of Directors may from time to
-----------------------
time delegate the powers or duties of any officer to any other officers or
agents, notwithstanding any provision hereof.
Article 4. Capital Stock
-------------
4.1. Issuance of Stock. Unless otherwise voted by the stockholders and
-----------------
subject to the provisions of the Certificate of Incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the corporation
or the whole or any part of any unissued balance of the authorized capital stock
of the corporation held in its treasury may be issued, sold, transferred or
otherwise disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may determine.
4.2. Certificates of Stock. Every holder of stock of the corporation shall
---------------------
be entitled to have a certificate, in such form as may be prescribed by law and
by the Board of Directors, certifying the number and class of shares owned by
him in the corporation. Each such certificate shall be signed by, or in the
name of the corporation by, the Chairman or Vice-Chairman, if any, of the Board
of Directors, or the President or a Vice President, and the Chief Financial
Officer, or the Secretary or an Assistant Secretary of the corporation. Any or
all of the signatures on the certificate may be a facsimile.
Each certificate for shares of stock which are subject to any restriction
on transfer pursuant to the Certificate of Incorporation, the By-Laws,
applicable securities laws or any agreement among any number of shareholders or
among such holders and the corporation shall have conspicuously noted on the
face or back of the certificate either the full text of the restriction or a
statement of the existence of such restriction.
4.3. Transfers. Except as otherwise established by rules and regulations
---------
adopted by the Board of Directors, and subject to applicable law, shares of
stock may be transferred on the books of the corporation by the surrender to the
corporation or its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power of attorney
properly executed, and with such proof of authority or authenticity of signature
as the corporation or its transfer agent may reasonably require. Except as may
be otherwise required by law, by the Certificate of Incorporation or by the By-
Laws, the corporation shall be entitled to treat the record holder of stock as
shown on its books as the owner of such stock for all purposes, including the
payment of dividends and the right to vote with respect to such stock,
regardless of any transfer, pledge or other disposition of such stock until the
shares have been transferred on the books of the corporation in accordance with
the requirements of these By-Laws.
4.4. Lost, Stolen or Destroyed Certificates. The corporation may issue a
--------------------------------------
new certificate of stock in place of any previously saved certificate alleged to
have been lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of reasonable
evidence of such loss, theft or destruction and the giving of such indemnity as
the Board of Directors may require for the protection of the corporation or any
transfer agent or registrar.
4.5. Record Date. The Board of Directors may fix in advance a date as a
-----------
record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders or to express consent (or dissent) to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights in respect of any
change, concession or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than sixty (60) nor less than ten
(10) days before the date of such meeting, nor more than sixty (60) days prior
to any other action to which such record date relates.
If no record date is fixed, 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 before the day on which notice is given, or, if
notice is waived, at the close of business on the day before the day on which
the meeting is held. The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting when no prior
action by the Board of Directors is necessary, shall be the day on which the
first written consent is expressed. The record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Article 5. General Provisions
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5.1. Fiscal Year. The fiscal year of the corporation shall be as fixed by
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the Board of Directors.
5.2. Corporate Seal. The corporate seal shall be in such form as shall be
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approved by the Board of Directors.
5.3. Waiver of Notice. Whenever any notice whatsoever is required to be
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given by law, by the Certificate of Incorporation or by these By-Laws, a waiver
of such notice either in writing signed by the person entitled to such notice or
such person's duly authorized attorney, or by telecopy, telegraph, cable or any
other available method, whether before, at or after the time stated in such
waiver, or the appearance of such person or persons at such meeting in person or
by proxy, shall be deemed equivalent to such notice.
5.4. Actions with Respect to Securities of Other Corporations. Except as
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the Board of Directors may otherwise designate, the President or any officer of
the corporation authorized by the President shall have the power to vote and
otherwise act on behalf of the corporation, in person or proxy, and may waive
notice of, and act as, or appoint any person or persons to act as, proxy or
attorney-in-fact to this corporation (with or without power of substitution) at
any meeting of stockholders or shareholders (or with respect to any action of
stockholders) of any other corporation or organization, the securities of which
may be held by this corporation and otherwise to exercise any and all rights and
powers which this corporation may possess by reason of this corporation's
ownership of securities in such other corporation or other organization.
5.5. Evidence of Authority. A certificate by the Secretary, or an
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Assistant Secretary, or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or representative of the
corporation shall as to all persons who rely on the certificate in good faith be
conclusive evidence of such action.
5.6. Certificate of Incorporation. All references in these By-Laws to the
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Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from time to time.
5.7. Severability. Any determination that any provision of these By-Laws
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is for any reason inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these By-Laws.
5.8. Pronouns. All pronouns used in these By-Laws shall be deemed to refer
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to the masculine, feminine or neuter, singular or plural, as the identity of the
person or persons may require.
5.9. Notices. Except as otherwise specifically provided herein or required
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by law, all notices required to be given to any stockholder, director, officer,
employee or agent shall be in writing and may in every instance be effectively
given by hand delivery to the recipient thereof, by depositing such notice in
the mails, postage paid, or by sending such notice by prepaid telegram,
mailgram, telecopy or commercial courier service. Any such notice shall be
addressed to such stockholder, director, officer, employee or agent at his or
her last known address as the same appears on the books of the Corporation. The
time when such notice shall be deemed to be given shall be the time such notice
is received by such stockholder, director, officer, employee or agent, or by any
person accepting such notice on behalf of such person, if hand delivered, or the
time such notice is dispatched, if delivered through the mails or be telegram or
mailgram.
5.10. Reliance Upon Books, Reports and Records. Each director, each
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member of any committee designated by the Board of Directors, and each officer
of the Corporation shall, in the performance of his duties, be fully protected
in relying in good faith upon the books of account or other records of the
Corporation, including reports made to the Corporation by any of its officers,
by an independent certified public accountant, or by an appraiser selected with
reasonable care.
5.11. Time Periods. In applying any provision of these By-Laws which
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require that an act be done or not done a specified number of days prior to an
event or that an act be done during a period of a specified number of days prior
to an event, calendar days shall be used, the day of the doing of the act shall
be excluded, and the day of the event shall be included.
5.12. Facsimile Signatures. In addition to the provisions for use of
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facsimile signatures elsewhere specifically authorized in these By-Laws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors or a committee thereof.
Article 6. Amendments
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6.1. By the Board of Directors. Except as is otherwise set forth in these
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By-Laws, these By-Laws may be altered, amended or repealed or new By-Laws may be
adopted by the affirmative vote of a majority of the directors present at any
regular or special meeting of the Board of Directors at which a quorum is
present.
6.2. By the Stockholders. Except as otherwise set forth in these By-Laws,
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these By-Laws may be altered, amended or repealed or new By-Laws may be adopted
by the affirmative vote of the holders of a majority of the shares of the
capital stock of the corporation issued and outstanding and entitled to vote at
any annual meeting of stockholders, or at any special meeting of stockholders,
provided notice of such alteration, amendment, repeal or adoption of new By-Laws
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shall have been stated in the notice of such special meeting.
Article 7. Indemnification of Directors and Officers.
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7.1. Right to Indemnification. Each person who was or is made a party or
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is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a director
or officer of another corporation, or of a Partnership, joint venture, trust or
other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or employee or in
any other capacity while serving as a director, officer or employee, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by Delaware Law, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than said Law
permitted the Corporation to provide prior to such amendment) against all
expenses, liability and loss reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a person who
has ceased to be a director, officer or employee and shall inure to the benefit
of his or her heirs, executors and administrators; provided, however, that,
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except as provided in Section 7.2 of this Article 7, the Corporation shall
indemnify any such person seeking indemnity in connection with an action, suit
or proceeding (or part thereof) initiated by such person only if (a) such
indemnification is expressly required to be made by law, (b) the action, suit or
proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation, (c) such indemnification is provided by the Corporation, in its
sole discretion, pursuant to the powers vested in the Corporation under the
Delaware General Corporation Law, or (d) the action, suit or proceeding (or part
thereof) is brought to establish or enforce a right to indemnification under an
indemnity agreement or any other statute or law or otherwise as required under
Section 145 of the Delaware General Corporation Law. Such right shall be a
contract right and shall include the right to be paid by the Corporation
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, unless the Delaware General Corporation
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Law then so prohibits, the payment of such expenses incurred by a director or
officer of the Corporation in his or her capacity as a director or officer (and
not in any other capacity in which service was or is tendered by such person
while a director or officer, including, without limitation. service to an
employee benefit plan) in advance of the final disposition of such proceeding,
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it
should be determined ultimately that such director or officer is not entitled to
be indemnified under this Section or otherwise.
7.2. Right of Claimant to Bring Suit. If a claim under Section 7.1 is not
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paid in full by the Corporation within ninety (90) days after a written claim
has been received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim
and, if such suit is not frivolous or brought in bad faith, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be
a defense to any such action (other then an action brought to enforce a claim
for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered to this
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the Corporation to
indemnify the claimant for the amount claimed. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that claimant has not
met the applicable standard of conduct.
7.3. Indemnification of Employees and Agents. The Corporation may, to the
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extent authorized from time to time by the Board of Directors, grant rights to
indemnification, and to the advancement of related expenses, to any employee or
agent of the Corporation to the fullest extent of the provisions of this Article
with respect to the indemnification of and advancement of expenses to directors
and officers of the Corporation.
7.4. Non-Exclusivity of Rights. The rights conferred on any person in
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Sections 7.1 and 7.2 shall not be exclusive of any other right which such
persons may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
7.5. Indemnification Contracts. The Board of Directors is authorized to
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enter into a contract with any director, officer, employee or agent of the
Corporation, or any person serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise,
including employee benefit plans, providing for indemnification rights
equivalent to or, if the Board of Directors so determines, greater than, those
provided for in this Article 7.
7.6. Insurance. The Corporation shall maintain insurance to the extent
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reasonably available, at its expense, to protect itself and any such director,
officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
7.7. Effect of Amendment. Any amendment, repeal or modification of any
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provision of this Article 7 by the stockholders and the directors of the
Corporation shall not adversely affect any right or protection of a director or
officer of the Corporation existing at the time of such amendment, repeal or
modification.