UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 20, 2007
PAR TECHNOLOGY CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 1-09720 16-1434688
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
PAR Technology Park
8383 Seneca Turnpike
New Hartford, NY 13413-4991
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (315) 738-0600
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
|_| Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On December 20, 2007, PAR Technology Corporation's (the "Company") Board of
Directors approved an amendment to the By-laws of the Company (the "By-Laws"),
whereby Article VII was amended to allow for the issuance of either certificated
or uncertificated shares of stock of the Company. Previously, only certificated
shares of stock were allowed to be issued. The amendment to the By-Laws is
effective as of December 20, 2007. This amendment to the By-Laws will permit
direct or "book-entry" registration of shares of the Company's capital stock and
facilitate the Company's eligibility to participate in a direct registration
system.
The By-Laws, as described herein, are attached as Exhibit 3.1 to this Form
8-K and are incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits 3.1
By-Laws of PAR Technology Corporation, as amended.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PAR TECHNOLOGY CORPORATION
December 24, 2007 By: /s/ Ronald J. Casciano
--------------------------------------
Name: Ronald J. Casciano
Title: Vice President,
Chief Financial Officer
and Treasurer
EXHIBIT INDEX
Exhibit
Number Description
------------ -----------
3.1 By-Laws of PAR Technology Corporation, as amended.
Exhibit 3.1 By-Laws of PAR Technology Corporation, as amended.
BYLAWS
OF
PAR TECHNOLOGY CORPORATION
ARTICLE I
OFFICES
Section 1. Delaware Office. The office of PAR Technology Corporation (the
"Corporation") within the State of Delaware shall be in the City of Wilmington,
County of New Castle.
Section 2. Other Offices. The Corporation may also have an office or offices and
keep the books and records of the Corporation, except as otherwise may be
required by law, in such other place or places, either within or without the
State of Delaware, as the Board of Directors of the Corporation may from time to
time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. All meetings of holders of shares of capital stock
of the Corporation shall be held at the office of the Corporation in the State
of Delaware or at such other place, within or without the State of Delaware, as
may from time to time be fixed by the Board.
Section 2. Annual Meetings. An annual meeting of shareholders of the Corporation
for the election of directors and for the transaction of such other business as
may properly come before the meeting (an "Annual Meeting) shall be held on such
date and at such time as may be fixed by the Board. If the Annual Meeting shall
not be held on the day designated, the Board shall call a special meeting of
shareholders as soon as practicable for the election of directors.
Section 3. Special Meetings. Except as required by law, and subject to the
rights of holders of any series of Preferred Stock, established pursuant to
Article Fourth of the Certificate of Incorporation, a special meeting of
shareholders may be called at any time by the Board of Directors, the Chairman
or the President, and shall be called only by the Board of Directors or the
Chairman or the President pursuant to a resolution approved by a majority of the
then authorized number of Directors of the Corporation (as determined in
accordance with Section 2 of Article lll of these Bylaws). Any such calls must
specify the matter or matters to be acted upon at such meeting and only such
matter or matters shall be acted upon thereat.
Section 4. Notice of Meetings. Except as otherwise may be required by law,
notice of each meeting of shareholders, whether an Annual Meeting or a special
meeting, shall be in writing, shall state the purpose or purposes of the
meeting, the place, date and hour of the meeting and, unless it is an Annual
Meeting, shall indicate that the notice is being issued by or at the direction
of the person or persons calling the meeting, and a copy thereof shall be
delivered or sent by mail, not less than 10 nor more than 60 days before the
date of said meeting, to each shareholder at his address as it appears on the
stock records of the Corporation, unless he shall have filed with the Secretary
a written request that notices to him be mailed to some other address, in which
case it shall be directed to him at such other address. Notice of an adjourned
meeting need not be given if the time and place to which the meeting is to be
adjourned was announced at the meeting at which the adjournment was taken,
unless (i) the adjournment is for more than 30 days or (ii) the Board shall fix
a new record date for such adjourned meeting after the adjournment. Whenever any
notice is required to be given under the provisions of the General Corporation
Law of the State of Delaware, the Certificate of Incorporation or these Bylaws,
a waiver thereof, signed by the shareholder entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent thereto.
Attendance of a shareholder at the meeting shall be deemed equivalent to a
written waiver of notice of such meeting.
Section 5. Quorum. At each meeting of shareholders of the Corporation, the
holders of shares having a majority of the voting power of the capital stock of
the Corporation issued and outstanding and entitled to vote thereat shall be
present or represented by proxy to constitute a quorum for the transaction of
business, except as otherwise provided by law.
Section 6. Adjournments. In the absence of a quorum at any meeting of
shareholders or any adjournment or adjournments thereof, holders of shares
having a majority of the voting power of the capital stock present or
represented by proxy at the meeting may adjourn the meeting from time to time
until a quorum shall be present or represented by proxy, any business may be
transacted which might have been transacted at the meeting as originally called
if a quorum had been present or represented by proxy thereat.
Section 7. Order of Business.
(a) At the Annual Meeting, only such business shall be conducted as shall have
been brought before the Annual Meeting (i) by or at the direction of the Board
of Directors of (ii) by any shareholder who complies with the procedures set
forth in this Section 7. At any special meeting, only such business shall be
conducted as shall have been set forth in the notice of such meeting.
(b) For business properly to be brought before an Annual Meeting by a
shareholder, the shareholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation. To be timely, a shareholder's
notice must be delivered to or mailed and received at the principal executive
offices of the Corporation not less than 60 days nor more than 90 days prior to
the Annual Meeting; provided, however, that if the event that less than 70 days'
notice or prior public disclosure of the date of the Annual Meeting is given or
made to shareholders, notice by the shareholder 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 Annual Meeting was mailed or such public
disclosure was made. To be in proper written form, a shareholder's notice to the
Secretary shall be set forth in writing as to each matter the shareholder
proposes to bring before the Annual Meeting: (i) a brief description of the
business desired to be brought before the meeting and the reasons for conducting
such business at the meeting; (ii) the name and address, as they appear on the
Corporation's books, of the shareholder proposing such business; (iii) the class
and number of shares of the Corporation which are beneficially owned by the
shareholder; and (iv) any material interest of the shareholder in such business.
Notwithstanding anything in the Bylaws to the contrary, no business shall be
conducted at the Annual Meeting of shareholders except in accordance with the
procedures set forth in this Section 7. The chairman of an Annual Meeting shall,
if the facts warrant, determine and declare to the meeting that business was not
properly brought before the Annual Meeting in accordance with the provisions of
this Section 7 and, if he should so determine, he shall so declare to the Annual
Meeting and any such business not properly brought before the Annual Meeting
shall not be transacted.
Section 8. Voting. Except as otherwise provided in the Certificate of
Incorporation of the Corporation or in a resolution of the Board of Directors
adopted pursuant to the Certificate of Incorporation establishing a series of
Preferred Stock of the Corporation ("Preferred Stock"), at each meeting of
shareholders, every shareholder of the Corporation entitled to vote at a meeting
of shareholders shall be entitled to one vote for every share outstanding in his
name on the stock records of the Corporation (i) at the time fixed pursuant to
Section 6 of Article Vll of these Bylaws as the record date for the
determination of shareholders entitled to vote at such meeting, or (ii) if no
such record date shall have been fixed, then at the close of business on the day
next preceding the day on which notice thereof shall be given. At each meeting
of shareholders, all matters (except as otherwise provided in Section 3 of
Article III of these Bylaws and except in cases where larger vote is required by
law or by the Certificate of Incorporation of the Corporation or these Bylaws)
shall be decided by a majority of the votes cast at such meeting by the holders
of shares of capital stock present or represented by proxy and entitled to vote
thereon, a quorum being present.
Section 9. Proxies. Any shareholder entitled to vote at any meeting of the
shareholders or to express consent to or dissent from corporate action without a
meeting may authorize another person or persons to vote at any such meeting and
express such consent or dissent for him by proxy. A shareholder may authorize a
valid proxy by executing a written instrument signed by such shareholder, or by
causing his or her signature to be affixed to such writing by any reasonable
means including, but not limited to, by facsimile signature, or by transmitting
or authorizing the transmission of a telegram, cablegram or other means of
electronic transmission to the person designated as the holder of the proxy, a
proxy solicitation firm or a like authorized agent. No such proxy shall be voted
or acted upon after the expiration of three years from the date of such proxy,
unless such proxy provides for a longer period. Every proxy shall be revocable
at the pleasure of the shareholder executing it, except in those cases where
applicable law provides that a proxy shall be irrevocable. A shareholder may
revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by filing an instrument in writing revoking the proxy or by fling
another duly executed proxy bearing a later date with the Secretary. Proxies by
telegram, cablegram or other electronic transmission must either set forth or be
submitted with information from which it can be determined that the telegram,
cablegram or other electronic transmission was authorized by the shareholder.
Any copy, facsimile telecommunication or other reliable reproduction of a
writing or transmission created 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 telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or transmission.
Section 10. Inspectors of Elections. Preceding any meeting of the shareholders,
the Board of Directors shall appoint one or more persons to act as Inspectors of
Elections, and may designate one or more alternate inspectors. In the event no
inspector or alternate is able to act, the person presiding at the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of the duties of an inspector, shall take and sign
an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his or her ability. The inspector shall:
(a) ascertain the number of shares outstanding and the voting power
of each;
(b) determine the shares represented at a meeting and the validity of
proxies and ballots;
(c) count all votes and ballots;
(d) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the
inspectors; and
(e) certify his or her determination of the number of shares
represented at the meeting, and his or her count of all votes and
ballots.
The inspector may appoint or retain other persons or entities to assist in the
performance of the duties of inspector.
When determining the shares represented and the validity of proxies and ballots,
the inspector shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with
Section 9 of these Bylaws, ballots and the regular books and records of the
Corporation. The inspector may consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on behalf of
banks, brokers or their nominees or a similar person which represent more votes
than the holder of a proxy is authorized by the record owner to cast or more
votes than the shareholder holds of record. If the inspector considers other
reliable information as outlined in this section, the inspector, at the time of
his or her certification pursuant to (e) of this section shall specify the
precise information considered, the person or persons from whom the information
was obtained, when this information was obtained, the means by which the
information was obtained, and the basis for the inspector's belief that such
information is accurate and reliable.
Section 11. Opening and Closing of Polls. The date and time for the opening and
the closing of the polls for each matter to be voted upon at a shareholder
meeting shall be announced at the meeting. The inspector of the election shall
be prohibited from accepting any ballots, proxies or votes nor any revocations
thereof or changes thereto after the closing of the polls, unless the Court of
Chancery upon application by a shareholder shall determine otherwise.
ARTICLE III
DIRECTORS
Section 1. Powers. The business of the Corporation shall be managed under the
direction of the Board. The Board may exercise all such authority and powers of
the Corporation and do all such lawful acts and things as are not by law or
otherwise directed or required to be exercised or done by the shareholders.
Section 2. Number, Election and Terms. The authorized number of directors may be
determined from time to time by a vote of a majority of the then authorized
number of directors; provided, however, that such number shall not be less than
a minimum of three nor more than a maximum of fifteen; and provided, further,
that such number and such minimum and maximum may be increased or decreased
pursuant to resolution of the Board. Subject to Sections 9 and 10 of Article lll
of these Bylaws, the directors, other than those who may be elected by the
holders of any series of Preferred Stock, shall be divided, with respect to the
time for which they severally hold office, into three classes, as nearly equal
in number as possible, with the term of office of the first class to expire at
the 1993 Annual Meeting of Shareholders, the term of office of the second class
to expire at the 1994 Annual Meeting of Shareholders and the term of office of
the third class to expire at the 1995 Annual Meeting of Shareholders. Each
director shall hold office until his respective successor has been duly elected
and qualified. At each Annual Meeting of Shareholders, commencing with the 1993
Annual Meeting, directors elected to succeed those directors whose terms then
expire shall be elected for a term of office to expire at the third succeeding
Annual Meeting of Shareholders after their election, with the directors to hold
office until their respective successor shall have been duly elected and
qualified. Vacancies and newly created directorships resulting from any increase
in the authorized number of directors, and any vacancies on the Board resulting
from death, resignation, disqualification, removal or other cause shall be
filled by the affirmative vote of a majority of the remaining directors then in
office, even if less than a quorum of the Board, or by a sole remaining
directors, and the directors so chosen shall hold office, subject to Sections 9
and 10 of Article lll of these Bylaws until the next Annual Meeting of
shareholders and until their respective successors are elected and qualified. No
decrease in the number of directors constituting the Board shall shorten the
terms of any incumbent director.
Section 3. Nominations of Directors, Elections. Nominations for the election of
directors may be made by the Board or a committee appointed by the Board, or by
any shareholder entitled to vote generally in the election of directors who
complies with the procedures set forth in this Section 3. Directors shall be at
least 21 years of age. Directors need not be shareholders. At each meeting of
shareholders for the election of directors at which a quorum is present, the
persons receiving a plurality of the votes cast shall be elected directors. All
nominations by shareholders shall be made pursuant to timely notice in proper
written form to the Secretary of the Corporation. To be timely, a shareholder's
notice shall be delivered to or mailed and received at the principal executive
offices of the Corporation not less than 60 days nor more than 90 days prior to
the meeting; provided, however, that in the event that less than 70 days' notice
or prior public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of the meeting was mailed or such public disclosure was
made. To be in proper written form, such shareholder's notice shall set forth in
writing (i) as to each person whom the shareholder proposes to nominate for
election or reelection as a director, all information relating to such person
that is required to be disclosed in solicitation of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended, or any successor
regulation or law including, without limitation, such person's written consent
to being named in the proxy statement as a nominee and to serving as director if
elected; and (ii) as to the shareholder giving the notice, (x) the name and
address, as they appear on the Corporation's books, of such shareholder and (y)
the class and number of shares of the Corporation which are beneficially owned
by such shareholder. In the event that a shareholder seeks to nominate one or
more directors, the Secretary shall appoint two inspectors, who shall not be
affiliated with the Corporation, to determine whether a shareholder has complied
with this Section 3. If the Inspectors shall determine that a stockholder has
not complied with this Section 3, the inspectors shall direct the chairman of
the meeting to declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by the Bylaws of the Corporation, and
the chairman shall so declare to the meeting and the defective nomination shall
be disregarded.
Section 4. Place of Meetings. Meetings of the Board shall be held at the
Corporation's office in the State of Delaware or at such other place, within or
without such State, as the Board may from time to time determine or as shall be
specified or fixed in the notice or waiver of notice of any such meeting.
Section 5. Regular Meetings. Regular meetings of the Board shall be held in
accordance with a yearly meeting schedule as determined by the Board; or such
meetings may be held on such other days and at such other times as the Board may
from time to time determine. Notice of regular meetings of the Board need not be
given except as otherwise required by these Bylaws.
Section 6. Special Meetings. Special meetings of the Board may be called by the
Chairman or the President and shall be called by the Secretary at the request of
any two of the other directors.
Section 7. Notice of Meetings. Notice of each special meeting of the Board and
of each regular meeting for which notice shall be required), stating the time,
place and purposes thereof, shall be mailed to each director, addressed to him
at his residence or usual place of business, or shall be mailed to each
director, addressed to him at his residence or usual place of business, or shall
be sent to him by telex, cable or telegram so addressed, or shall be given
personally or by telephone on 24 hours' notice.
Section 8. Quorum and Manner of Acting. The presence of at least a majority of
the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business at any meeting of the Board.
If a quorum shall not be present at any meeting of the Board, a majority of the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Except where a different vote is required or permitted by law or these Bylaws or
otherwise, the act of a majority of the directors present at any meeting at
which a quorum shall be present shall be the act of the Board. Any action
required or permitted to be taken by the Board may be taken without a meeting if
all the directors consent in writing to the adoption of a resolution authorizing
the action. The resolution and the written consent thereto by the directors
shall be filed with the minutes of the proceedings of the board. Any one or more
directors may participate in any meeting of the Board by means of a conference
telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other at the same time. Participation by such means
shall be deemed to constitute presence in person at a meeting of the Board.
Section 9. Resignation. Any director may resign at any time by giving written
notice to the Corporation; provided, however, that written notice to the Board,
the Chairman of the Board, the President or the Secretary shall be deemed to
constitute notice to the Corporation. Such resignation shall take effect upon
receipt of such notice or at any later time specified therein and, unless
otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective.
Section 10. Removal of Directors. Subject to the rights of the holders of any
series of Preferred Stock any director may be removed from office, with or
without cause, by the affirmative vote of the holders of a majority of the
voting power of all shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
Section 11. Compensation of Directors. The Board may provide for the payment to
any of the directors, other than officers or employees of the Corporation, of a
specified amount for services as director or member of a committee of the Board,
or of a specified amount for attendance at each regular or special Board meeting
or committee meeting, or of both, and all directors shall be reimbursed for
reasonable expenses of attendance at any such meeting; provided, however, that
nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 12. Waiver of Notice. Whenever any notice is required to be given under
the provisions of the General Corporation Law of the State of Delaware, the
Certificate of Incorporation or these Bylaws, a waiver thereof, signed by the
director entitled to such notice, whether before or after the time stated
herein, shall be deemed equivalent thereto. Attendance of a director at a
meeting shall be deemed equivalent to a written waiver of notice of such
meeting.
ARTICLE IV
COMMITTEES OF THE BOARD
Section 1. Appointment and Powers of Executive Committee. The Board may, by
resolution adopted by the affirmative vote of majority of the authorized number
of directors, designate an Executive Committee of the Board which shall consist
of such number of members as the Board shall determine. Except as provided by
Delaware law, during the interval between the meetings of the Board, the
Executive Committee shall possess and may exercise all the power of the Board in
the management and direction of all the business and affairs of the Corporation
(except the matters hereinafter assigned to any other Committee of the board) in
such manner as the Executive Committee shall deem in the best interests of the
Corporation in all cases in which specific directions shall not have been given
by the Board. A majority of the members of the Executive Committee shall
constitute a quorum for the transaction of business by the committee and the act
of a majority of the members of the committee present at a meeting at which a
quorum shall be present shall be the act of the committee. Either the Chairman
or the Board or the Chairman of the Executive Committee may call the meetings of
the Executive Committee.
Section 2. Appointment and Powers of Audit Committee. The Board may, by
resolution adopted by the affirmative vote of a majority of the authorized
number of directors, designate an Audit Committee of the board, which shall
consist of such members as the Board shall determine. The Audit Committee shall
(i) make recommendations to the Board as to the independent accountants to be
appointed by the Board; (ii) review with the independent accountants the scope
of their examination; (iii) receive the reports of the independent accountants
and meet with representatives of such accountants for the purpose of reviewing
and considering questions relating to their examination and such reports; (iv)
review, either directly or through the independent accountants, the internal
accounting and auditing procedures of the Corporation; and (v) perform such
other functions as may be assigned to it from time to time by the Board. The
Audit Committee may determine its manner of acting and fix the time and place of
its meetings, unless the Board shall otherwise provide. A majority of the
members of the Audit Committee shall constitute a quorum for the transaction of
business by the committee and the act of a majority of the members of the
committee present at a meeting which a quorum shall be present shall be the act
of the committee.
Section 3. Other Committees. The Board may, by resolution adopted by the
affirmative vote of a majority of the authorized number of directors, designate
members of the Board to constitute such other committees of the Board as the
Board may determine. Such committees shall in each case consist of such number
of directors as the board may determine, and shall have and may exercise, to the
extent permitted by law, such powers as the Board may delegate to them, in the
respective resolutions appointing them. Each such committee may determine its
manner of acting and fix the time and place of its meeting, unless the Board
shall otherwise provide. A majority of the members of any such committee present
at a meeting at which a quorum shall be present shall be the act of the
Committee.
Section 4. Action by Consent: Participation by Telephone or Similar Equipment.
Unless the Board shall otherwise provide, any action required or permitted to be
taken by any committee may be taken without a meeting if all members of the
committee consent in writing to the adoption of a resolution authorizing the
action. The resolution and the written consents thereto by the members of the
committee shall be filed with the minutes of the proceedings of the committee.
Unless the Board shall otherwise provide, any one or more members of any such
committee may participate in any meeting of the committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear one another. Participation by such means
shall constitute presence in person at a meeting of the committee.
Section 5. Changes in Committees: Resignations, Removals. The Board shall have
power, by the affirmative vote of a majority of the authorized number of
directors, at any time to change the members of, to fill vacancies in, and to
discharge any committee of the Board. Any member of any such committee may
resign at any time by giving notice to the Corporation; provided, however, that
notice to the Board, the Chairman of the Board, the President, the chairman of
such committee or the Secretary shall be deemed to constitute notice to the
Corporation. Such resignation shall take effect upon receipt of such notice or
at any later time specified therein; and, unless otherwise specified therein,
acceptance of such resignation shall not be necessary to make it effective. Any
member of any such committee may be removed at any time, either with or without
cause, by the affirmative vote of a majority of the authorized number of
directors at any meeting of the Board called for that purpose.
ARTICLE V
OFFICERS
Section 1. Number and Qualification. The Corporation shall have such officers as
may be necessary or desirable for the business of the Corporation. There shall
be elected by the Board of Directors persons having the titles and exercising
the duties (as prescribed by the Bylaws or by the Board) of the Chairman of the
Board, President, one or more Vice President, any of whom, upon his or her
election, may be designated an Executive Vice President or Senior Vice
President, Treasurer and Secretary, and such other persons having such other
titles and such other duties as the Board may prescribe. The same person may
hold more than one office. The Chairman of the Board shall be elected from among
the directors. The Chairman of the Board may appoint one or more deputy,
associate or assistant officers, or such other agents as may be necessary or
desirable for the business of the corporation. In case one or more deputy,
associate or assistant officers shall be appointed, the officer such appointee
assists may delegate to him the authority to perform such of the officer's
duties as the officer may determine. Unless otherwise determined by the Board,
the officers of the Corporation shall be elected by the Board at the annual
meeting of the Board, and shall be elected to hold office until the next
succeeding meeting of the Board. In the event of the failure to elect officers
at such annual meeting, officers may be elected at any regular or special
meeting of the Board. Each officer shall hold office until his successor has
been elected and qualified, or until his earlier death, resignation or removal.
Section 2. Resignations. Any officer may resign at any time by giving written
notice to the Corporation; provided, however, that notice to the Board, the
Chairman of the Board, the President or the Secretary shall be deemed to
constitute notice to the Corporation. Such resignation shall take effect upon
receipt of such notice or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 3. Removal. Any officer or agent may be removed, either with or without
cause, at any time, by the Board at any meeting called for that purpose;
provided, however, that the Chairman of the Board may remove any agent appointed
by him.
Section 4. Vacancies. Any vacancy among the officers, whether caused by death,
resignation, removal or other cause, shall be filled in the manner prescribed
for election or appointment to such office.
Section 5. Chairman of the Board. The Chairman of the Board shall be the Chief
Executive Officer of the Corporation and shall, subject to the control of the
Board of Directors, have the direction and control of the business, affairs and
property of the Corporation and be responsible for the coordination of the
corporate and financial policies and the day-to-day operations of the
Corporation, and shall cause all orders and resolutions of the Board of
Directors to be carried into effect. The Chairman of the Board shall if present,
preside at all meetings of the Board and of the shareholders. He shall perform
the duties incident to the office of the Chairman of the Board and have such
other powers and perform all such other duties as are specified in these Bylaws
or as shall be assigned to him from time to time by the Board of Directors. He
shall perform the duties incident to the office of the President and all such
other duties as are specified in these Bylaws or as shall be assigned to him
from time to time by the Board.
Section 6. President. The President shall be the Chief Operating Officer of the
Corporation and shall, subject to the control of the Chairman of the Board, be
responsible for the day-to-day operations of the Corporation. In the absence of
the Chairman of the Board or if there shall be no such officer, the President
shall preside at all meetings of the shareholders and of the Board of Directors
at which he is present.
Section 7. Vice President. Each Vice President shall perform such duties and
exercise such powers as may be assigned to him from time to time by a resolution
of a majority of the Board of Directors, the Chairman of the Board or the
President. The Vice President designated by the Board of Directors (or, in the
absence of such designation, by the Chairman of the Board) shall, at the request
of the Chairman of the Board or the President, or in the event of the absence or
disability of both of such officers, perform all the duties of the Chairman of
the Board of Directors or the President. When so acting, such designated Vice
President shall have the powers of and be subject to all the restrictions upon
the Chairman of the Board of Directors or the President or both, as the case may
be.
Section 8. Treasurer. The Treasurer shall have charge and custody of, and be
responsible for, all funds and securities of the Corporation, shall keep full
and accurate accounts of receipts and disbursements in books belonging to the
Corporation, shall deposit all moneys and other valuable to the credit of the
Corporation in such depositories as may be designated pursuant to these Bylaws,
shall receive, and give receipts for, moneys due and payable to the Corporation
from any source whatsoever, shall disburse the funds of the Corporation and
shall render to all regular meetings of the Board, or whenever the Board may
require, an account of all his transactions as Treasurer. He shall, in general,
perform all the duties incident to the office of Treasurer and all such other
duties as may be assigned to him from time to time by the Board of Directors,
Chairman of the Board, President or such other officer to whom the Treasurer
reports.
Section 9. Secretary. The Secretary shall, if present, act as secretary of, and
keep the minutes of all meetings of the Board, the Executive Committee and other
committees of the Board and the shareholders in one or more books provided for
that purpose, shall see that all notices are duly given in accordance with these
Bylaws and as required by law, shall be custodian of the seal of the Corporation
and shall affix and attest the seal to all documents to be executed on behalf of
the Corporation under its seal. He shall, in general, perform all the duties
incident to the office of Secretary and all such other duties as may be assigned
to him from time to time by the Board of Directors, Chairman of the Board,
President or such other officer to whom the Secretary reports.
Section 10. Additional Officers. The Board of Directors may by resolution
appoint such other officers and agents as it may deem appropriate, and such
other officers and agents shall hold their offices for such terms and shall
exercise such powers and perform such duties as may be determined from time to
time by the Board of Directors. The Board of Directors from time to time may
delegate to any officer or agent the power to appoint subordinate officers or
agents and to prescribe their respective rights, terms of office, authorities
and duties. Any such officer or agent may remove any such subordinate officer or
agent appointed by him, with or without cause.
Section 11. Bonds of Officers. If required by the Board, any officer of the
Corporation shall give a bond for the faithful discharge of his duties in such
amount and with such surety or sureties as the Board may require.
ARTICLE VI
CONTRACTS, CHECKS, LOANS, DEPOSITS, ETC.
Section 1. Contracts. The Chairman of the Board or President may enter into any
contract or execute and deliver any instrument in the name and on behalf of the
Corporation. In addition, the Board may authorize any officer or officers, agent
or agents, in the name and on behalf of the Corporation, to enter into any
contract or to execute and deliver any instrument, which authorization may be
general or confined to specific instances; and, unless so authorized by the
Board, no officer, agent or employee shall have any power or authority to bind
the Corporation by any contract or engagement or to pledge its credit or to
render it liable pecuniarily for any purpose or for any amount.
Section 2. Checks, etc. All checks, drafts, bills of exchange or other orders
for the payment of money out of the funds of the Corporation, and all notes or
other evidences of indebtedness of the Corporation, shall be signed in the name
and on behalf of the Corporation in such manner as shall from time to time be
authorized by the Board, which authorization may be general or confined to
specific instances.
Section 3. Loans. No loan shall be obtained or contracted for by or on behalf of
the Corporation, and no negotiable paper shall be issued in its name, unless
authorized by the Board, which authorization may be general or confined to
specific instances. Any officer or agent of the Corporation thereunto so
authorized may obtain loans and advances for the Corporation, and for such loans
and advances may make, execute and deliver promissory notes, bonds, or other
evidences of indebtedness of the Corporation and may pledge, hypothecate or
transfer as security for the payment of any and all loans, advances,
indebtedness and liabilities of the Corporation, any and all stocks, bonds,
other personal property, securities or receivables at any time owned by the
Corporation or to which it is or will be at any time entitled, and to the end
may endorse, assign and deliver the same and do every act and thing necessary or
proper in connection therewith.
Section 4. Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as may be selected by or in the manner
designated by the Board or as may be selected or in a manner designated by any
officer or officers authorized so to do by the Board. The Board or its designees
may make such special rules and regulations with respect so such bank accounts,
not inconsistent with the provisions of the Certificate of Incorporation or
these Bylaws, as they may deem advisable.
Section 5. Proxies. Proxies to vote with respect to shares of stock of other
corporations owned by or standing in the name of the Corporation may be executed
and delivered from time to time on behalf of the Corporation by the Chairman of
the Board or the President, or any Vice President or other person or persons
thereunto authorized by the Board of Directors.
ARTICLE VII
CAPITAL STOCK
Section 1. Certificates of Stock. The shares of stock of the Corporation shall
be either certificated shares or uncertificated shares or a combination thereof.
A resolution approved by a majority of the directors on the Board of Directors
may provide that some or all of any or all classes or series of the shares of
the Corporation will be uncertificated shares. Any certificate representing
shares of the Corporation shall be signed by or in the name of the Corporation
by the Chairman of the Board of Directors or the President, and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant Secretary of the
Corporation. Any or all of the signatures appearing on such certificate or
certificates may be a facsimile. If 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 he were such officer, transfer agent or registrar at the date of issue.
Within a reasonable time after the issuance or transfer of uncertificated
shares, the Corporation shall send to the registered owner thereof a written
notice that shall set forth the name of the Corporation, that the Corporation is
organized under the laws of the State of Delaware, the name of the stockholder,
the number and class (and the designation of the series, if any) of the shares
represented, and any restrictions on the transfer or registration of such shares
of stock imposed by the Corporation's Certificate of Incorporation, these
Bylaws, any agreement among stockholders or any agreement between stockholders
and the Corporation.
Each certificate for shares of stock which are subject to any restriction on
transfer pursuant to the Certificate of Incorporation, the Bylaws, applicable
securities laws or any agreement among any number of stockholders or among such
holders and the Corporation shall have conspicuously noted on the face or back
of such certificate either the full text of such restriction or a statement of
the existence of such restriction.
Section 2. List of Shareholders Entitled to Vote. The officer of the Corporation
who has charge of the stock ledger of the Corporation shall prepare and make or
cause to be prepared or made, at least 10 days before every meeting of
shareholders, a complete list of the shareholders entitled to vote at the
meeting arranged in alphabetical order, and showing the address of each
shareholder and the number of shares of capital stock registered in the name of
each shareholder. Such list shall be open to the examination of any shareholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least 10 days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting for the duration thereof, and my be inspected by any shareholder of
the Corporation who is present.
Section 3. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the shareholders entitled to examine the stock ledger,
the list required by Section 2 of this Article VII or the books of the
Corporation, or to vote in person or by proxy at any meeting of shareholders.
Section 4. Transfers of Capital Stock. Shares of stock shall be transferable on
the books of the Corporation pursuant to applicable law and such rules and
regulations as the Board of Directors shall from time to time prescribe. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate or evidence of the issuance of
uncertificated shares to the stockholder entitled thereto, cancel the old
certificate and record the transaction upon the Corporation's books. Upon the
surrender of any certificate for transfer of stock, such certificate shall at
once be conspicuously marked on its face "Canceled" and filed with the permanent
stock records of the Corporation.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares, such uncertificated shares shall be canceled, issuance of
new equivalent shares or certificated shares shall be made to the stockholder
entitled thereto and the transaction shall be recorded upon the books of the
Corporation. If the Corporation has a transfer agent or registrar acting on its
behalf, the signature of any officer or representative thereof may be in
facsimile.
The Board of Directors may appoint a transfer agent and one or more co-transfer
agents and registrar and one or more co-registrars and may make or authorize
such agent to make all such rules and regulations deemed expedient concerning
the issue, transfer and registration of shares of stock.
Section 5. Lost Certificates. The Board of Directors may direct either (i) a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, or (ii)
uncertificated shares in place of any certificate or certificates previously
issued by the Corporation, 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 or uncertificated shares, 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 his
legal representative, 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.
Section 6. Fixing of Record Date. In order that the Corporation may determine
the shareholders entitled to notice of or to vote at any meeting of shareholders
or any adjournment thereof, or entitled to receive payment of any dividends or
other distributions or allotments of any rights, or entitled to exercise any
rights in respect to any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board may fix, in advance, a record
date, which shall not be more than 60 days nor less than 10 days before the date
of such meeting, nor more than 60 days prior to any other action. A
determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders 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.
Section 7. Beneficial 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
shares on the part of any other person, whether or not the Corporation shall
have express or other notice thereof, except as otherwise provided by law
FISCAL YEAR
The Corporation's fiscal year shall coincide with the calendar year.
ARTICLE IX
INDEMNIFICATION
Section 1. Nature of Indemnity. 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, by reason of the fact that he is or was or has agreed to
become a director or officer of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a director or officer, of
another corporation, partnership, joint venture, trust or other enterprise, or
by reason of any action alleged to have been taken or omitted in such capacity,
and may indemnify any person who was or is a party or is threatened to be made a
party to such an action, suit or proceeding by reason of the fact that he is or
was or has agreed to become an employee or agent of the Corporation, or is or
was serving or has agreed to serve at the request of the Corporation as an
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner he 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 his
conduct was unlawful; except that in the case of an action or suit by or in the
right of the Corporation to procure a judgment in its favor (1) such
indemnification shall be limited to expenses (including attorneys' fees)
actually and reasonably incurred by such person in the defense or settlement of
such action or suit, and (2) 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 Delaware 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 Delaware Court of Chancery or
such other court shall deem proper.
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 he 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 his conduct was unlawful.
Section 2. Successful Defense. To the extent that a director, officer, employee
or agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 1 hereof or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Section 3. Determination That Indemnification is Proper. Any indemnification of
a director or officer of the Corporation under Section 1 hereof (unless ordered
by a court) shall be made by the Corporation unless a determination is made that
indemnification of the director or officer is not proper in the circumstances
because he has not met the applicable standard of conduct set forth in Section 1
hereof. Any indemnification of an employee or agent of the corporation under
Section 1 hereof (unless ordered by a court) may be made by the Corporation upon
a determination that indemnification of the employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 1 hereof. Any such determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
shareholders.
Section 4. Advance Payment of Expenses. Expenses (including attorneys' fees)
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 the director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article.
Such expenses (including attorneys' fees) incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the Board of Directors
deems appropriate. The Board of Directors may authorize the Corporation's
counsel to represent such director, officer, employee or agent in any action,
suit or proceeding, whether or not the Corporation is a party to such action,
suit or proceeding.
Section 5. Procedure for Indemnification of Directors and Officers. Any
indemnification of a director or officer of the Corporation under Section 1 and
2, or advance of costs, charges and expenses to a director or officer under
Section 4 of this Article, shall be made promptly, and in any event within 30
days, upon the written request of the director or officer. If a determination by
the Corporation that the director or officer is entitled to indemnification
pursuant to this Article is required, and the Corporation fails to respond
within sixty days to a written request for indemnity, the Corporation shall be
deemed to have approved such request. If the Corporation denies a written
request for indemnity or advancement of expenses, in whole or in part, or if
payment in full pursuant to such request is not made within 30 days, the right
to indemnification or advances as granted by this Article shall be enforceable
by the director or officer in any court of competent jurisdiction. Such person's
costs and expenses incurred in connection with successfully establishing his
right to indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation. It shall be a defense to any such action (other
than an action brought to enforce a claim for the advance of costs, charges and
to enforce a claim for the advance of costs, charges and expenses under Section
4 of this Article where the required undertaking, if any, has been received by
the Corporation) that the claimant has not met the standard of conduct set forth
in Section 1 of this Article, but the burden of proving such defense shall be on
the Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Section 1 of this Article, nor the fact that
there has been an actual determination by the Corporation (including its Board
of Directors, its independent legal counsel, and its shareholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 6. Survival; Preservation of Other Rights. The foregoing indemnification
provisions shall be deemed to be a contract between the Corporation and each
director, officer, employee and agent who serves in any such capacity at any
time while these provisions as well as the relevant provisions of the Delaware
Corporation Law are in effect and any repeal or modification thereof shall not
affect any right or obligation then existing with respect to any state of facts
then or previously existing or any action, suit or proceeding previously or
thereafter brought or threatened based in whole or in part upon any such state
of facts. Such a "contract right" may not be modified retroactively without the
consent of such director, officer, employee or agent.
The indemnification provided by this Article IX shall not be deemed exclusive of
any other rights to which those indemnified may be entitled under any by-law,
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Section 7. Insurance. The Corporation shall purchase and maintain insurance on
behalf of any person who is or was or has agreed to become 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, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
or on his behalf in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article, provided that such
insurance is available on acceptable terms, which determination shall be made by
a vote of a majority of the entire Board of Directors.
Section 8. Severability. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated and to the fullest
extent permitted by applicable law.
ARTICLE X
SEAL
The Corporate seal shall be circular in form and shall bear the name of the
Corporation and words and figures denoting Its organization under the laws of
the State of Delaware and the year thereof and otherwise shall be in such form
as shall be approved from time to time by the Board of Directors.
ARTICLE XI
WAIVER OF NOTICE
Whenever any notice is required by law, the Certificate of Incorporation or
these Bylaws to be given to any director, member of a committee or shareholder,
a waiver thereof in writing, signed by the person entitled to such notice,
whether signed before or after the time stated in such written waiver, shall be
deemed equivalent to such notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when such person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business on the grounds that the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any meeting of the shareholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
ARTICLE XII
AMENDMENTS
These Bylaws or any of them may be amended, repealed, in any respect, and new
Bylaws adopted at any time, either (i) at any annual or special shareholders'
meeting, by an affirmative vote of 66 2/3% of the shareholders of the
Corporation entitled to vote generally in the election of directors provided
that any amendment, repeal or new Bylaws proposed to be acted upon at any such
meeting shall have been described or referred to in the notice of such meeting
or (ii) by an affirmative vote of a majority of the directors present at any
organizational, regular, or special meeting of the Board of Directors provided
that any amendment, repeal or new by-Law proposed to be acted upon at any such
meeting shall have been described or referenced to in the notice of such meeting
or an announcement with respect thereto shall have been made at the last
previous board meeting. Notwithstanding the foregoing and anything contained in
these Bylaws to the contrary, Section 3 ("Special Meetings") or Section 7
("Order of Business") of Article II ("Meeting of Shareholders") of the Bylaws;
Section 2 ("Number, Election and Terms"), Section 3 ("Nominations of Directors,
Elections") or Section 6 ("Special Meetings") of Article III ("Directors") of
the Bylaws; or Article XII ("Amendments") of the Bylaws shall not be amended or
repealed and no provision inconsistent with any thereof shall be adopted without
the affirmative vote of the 66 2/3% of the shareholders entitled to vote
generally for the election of directors, voting together as a single class.
Notwithstanding anything contained in these Bylaws to the contrary, the
affirmative vote of the 66 2/3% of the shareholders entitled to vote generally
for the election of directors, voting together as a single class shall be
required to amend or repeal, or adopt any provision inconsistent with, any
provision or this Article XII.
ARTICLE XIII
CONSTRUCTION
In the event of any conflict between the provisions of these Bylaws as in effect
from time to time and the provisions of the Certificate of Incorporation of the
Corporation as in effect from time to time, the provisions of such certificate
of incorporation shall be controlling.