Exhibit 10.2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of
January 11, 1996, by and between Health Management, Inc., a Florida corporation
("HMIFlorida"), and Nouveau Health Management, Inc., a Delaware corporation
("HMI-Delaware" or the "Surviving Corporation") (HMI-Florida and HMI-Delaware
are sometimes hereinafter referred to as the "Constituent Corporations").
W I T N E S S E T H:
WHEREAS, HMI-Florida is a corporation duly organized on March
19, 1981 and validly existing under the laws of the State of Florida;
WHEREAS, HMI-Delaware is a corporation duly organized on
January 10, 1996 and validly existing under the laws of the State of Delaware;
WHEREAS, HMI-Florida is duly authorized to issue 10,500,000
shares of stock, consisting of 10,000,000 shares of common stock, par value
$.001 per share ("HMIFlorida Common Stock"), and 500,000 shares of preferred
stock, par value $.001 per share ("HMI-Florida Preferred Stock"), of which
2,959,593 of HMI-Florida Common Stock and no shares of HMI-Florida Preferred
Stock are validly issued and outstanding, fully paid and non-assessable;
WHEREAS, HMI-Delaware is duly authorized to issue 26,000,000
shares of stock, consisting of 25,000,000 shares of common stock, par value
$.00l per share ("HMIDelaware Common Stock"), and 1,000,000 shares of preferred
stock, par value $.00l per share ("HMI-Delaware Preferred Stock"), of which ten
(10) shares of HMI-Delaware
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Common Stock and no shares of HMI-Delaware Preferred Stock are issued and
outstanding, fully paid and non-assessable; and
WHEREAS, the Boards of Directors of the Constituent
Corporations have deemed it desirable and for the best interests of their
respective corporations to merge HMIFlorida with and into HMI-Delaware in
accordance with Section 252 of the General Corporation Law of the State of
Delaware ("DGCL") and with Section 607.1107 of the Florida Business Corporation
Act ("FBCA") and in accordance with the provisions of Section 368 of the
Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants herein contained, the parties hereto agree as follows:
1. Merger. HMI-Florida shall be merged (the "Merger") with and
into HMI-Delaware. HMI-Delaware shall survive the Merger and shall continue to
be governed by the laws of the State of Delaware, but the separate corporate
existence of HMI-Florida shall cease forthwith upon the Effective Date (as
hereinafter defined).
2. Effective Date. Subject to the conditions hereinafter set
forth, the Merger shall become effective (the "Effective Date") upon the filing
of a duly executed Certificate of Merger with the Secretary of State of the
State of Delaware.
3. Certificate of Incorporation; By-Laws. From and after the
Effective Date and until thereafter amended or supplemented or repealed in
accordance with their respective terms, the Certificate of Incorporation and the
By-laws of HMI-Delaware, in the forms attached hereto as Exhibits A and B,
respectively, shall be the Certificate of Incorporation and the By-laws of the
Surviving Corporation.
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4. Directors and Officers. The directors and officers of
HMI-Delaware immediately prior to the Effective Date shall be the directors and
officers of the Surviving Corporation, each to hold office (subject to the
By-laws of the Surviving Corporation) until their respective successors shall be
duly elected or appointed and qualified.
5. Conversion of Outstanding Stock of HMI-Florida. Forthwith
upon the Effective Date, each of the issued and outstanding shares of
HMI-Florida Common Stock, and all rights in respect thereof, shall be converted
into 1.5204793 fully paid and non-assessable shares of HMI-Delaware Common
Stock, and each certificate nominally representing shares of HMI-Florida Common
Stock shall for all purposes be deemed to evidence the ownership of the
appropriate number of shares of HMI-Delaware Common Stock; provided, however,
that no fractional shares of HMI-Delaware Common Stock shall be issued, and all
fractional shares equal to 0.50 shares of HMI-Delaware Common Stock or less
shall be eliminated and all fractional shares greater than 0.50 shares of
HMI-Delaware Common Stock shall be rounded to the next highest whole number of
shares of HMIDelaware Common Stock. The holders of such certificates shall not
be required to immediately surrender the same in exchange for certificates of
HMI-Delaware Common Stock but, as certificates nominally representing shares of
HMI-Florida Common Stock are surrendered for transfer, HMI-Delaware will cause
to be issued certificates representing shares of HMI-Delaware Common Stock, and,
at any time upon surrender by any holder of certificates nominally representing
shares of HMI-Florida Common Stock, HMI-Delaware will cause to be issued
therefor certificates for the appropriate number of shares of HMIDelaware Common
Stock.
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6. Options, Warrants and Rights. At the Effective Date, all
options, warrants or rights then outstanding which immediately prior thereto had
given the holder thereof the right to purchase shares of HMI-Florida Common
Stock shall, by virtue of the Merger and without further action on the part of
the holder thereof, be changed and converted into options, warrants or rights
giving the holder thereof the right to purchase the same number of shares of
HMI-Delaware Common Stock at the same exercise price per share and containing
such other terms and conditions as pertained under such options, warrants or
rights immediately prior to the Effective Date.
7. Retirement of Organization Stock. Forthwith upon the
Effective Date, each of the ten (10) shares of HMI-Delaware Common Stock
presently issued and outstanding shall be retired, and no shares of HMI-Delaware
Common Stock or other securities of HMI-Delaware shall be issued in respect
thereof.
8. Assets and Liabilities. At and after the Effective Date,
HMI-Delaware shall succeed to and possess, without further act or deed, all of
the estate, rights, privileges, powers and franchises (both public and private)
and all of the property (real, personal and mixed) of each of the Constituent
Corporations; all debts due to HMI-Florida shall be vested in HMI-Delaware; all
claims, demands, property, rights, privileges, powers and franchises and every
other interest of either of the Constituent Corporations shall be as effectively
the property of HMI-Delaware as they were of the respective Constituent
Corporation; the title to any real estate vested by deed or otherwise in
HMI-Florida shall not revert or be in any way impaired by reason of the Merger,
but shall be vested in HMI-Delaware; all rights of creditors and all liens upon
any property of either of the Constituent Corporations shall be
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preserved unimpaired, limited in lien to the property affected by such lien at
the Effective Date; all debts, liabilities and duties of the Constituent
Corporations shall thenceforth attach to HMI-Delaware and may be enforced
against it to the same extent as if such debts, liabilities and duties had been
incurred or contracted by it; and HMI-Delaware shall indemnify and hold harmless
the officers and directors of each of the Constituent Corporations against all
such debts, liabilities and duties and against all claims and demands arising
out of the Merger.
9. Further Assurance of Title. If at any time HMI-Delaware
shall consider or be advised that any acknowledgments or assurances in law or
other similar actions are necessary or desirable in order to acknowledge or
confirm in and to HMIDelaware any right, title or interest of HMI-Florida held
immediately prior to the Effective Date, HMI-Florida and its proper officers and
directors shall and will execute and deliver all such acknowledgments or
assurances in law and do all things necessary or desirable to acknowledge or
confirm such right, title or interest in HMI-Delaware as shall be necessary to
carry out the purposes of this Agreement, and HMI-Delaware and its proper
officers and directors are fully authorized to take any and all such action in
the name of HMI-Florida or otherwise.
10. Conditions to Merger. The consummation of the Merger is
subject to the satisfaction of the following conditions prior to the Effective
Date:
(a) This Agreement shall have been approved and
adopted by the requisite number of stockholders of each of the Constituent
Corporations;
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(b) Each of the Constituent Corporations shall have
received, or waived receipt of, such licenses, permits, consents, approvals,
authorizations, qualifications, and orders of governmental authorities and
parties to contracts with the Constituent Corporations as are necessary for
consummation of the transactions contemplated by this Agreement; and
(c) No preliminary or permanent injunction or other
order issued by any court of competent jurisdiction preventing the consummation
of the Merger shall be in effect.
11. Termination. This Agreement may be terminated and the
Merger and other transactions herein provided for abandoned at any time prior to
the Effective Date (whether before or after adoption and approval of this
Agreement by the stockholders of the Constituent Corporations) by action of the
Board of Directors of HMI-Florida, if said Board of Directors determines that
the consummation of the transactions provided for herein would not, for any
reason, be in the best interests of HMI-Florida and its stockholders.
12. Deferral. Consummation of the transactions herein provided
for may be deferred by the Board of Directors of HMI-Florida for a reasonable
period of time if said Board of Directors determines that such deferral would be
in the best interests of HMI- Florida and its stockholders.
13. Name and Principal Office. The name of the Surviving
Corporation shall be Nouveau International, Inc. and its principal executive
offices shall be 000 Xxxxxxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx
00000. The principal office of
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the Surviving Corporation in the State of Delaware shall be c/o Prentice Hall
Corporation System, Inc., 00 Xxxxxxxxxx Xxxxxx, Xxxxx X-000, Xxxxx, Xxxxxxxx
00000.
14. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
15. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware.
16. Expenses and Rights of Dissenting Shareholders.
HMI-Delaware shall pay all expenses of carrying this Agreement into effect and
of accomplishing the Merger, including amounts, if any, to which dissenting
shareholders of HMI-Florida may be entitled by reason of this Merger. To the
extent required by the FBCA, HMI-Delaware shall file with the Department of
State of the State of Florida an agreement that it will promptly pay to the
dissenting shareholders of HMI-Florida the amount, if any, to which they shall
be entitled under the provisions of the FBCA with respect to the rights of
dissenting shareholders.
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IN WITNESS WHEREOF, and intending to be legally bound, the
parties hereto have executed this Agreement as of the year and date first above
written.
ATTEST: HEALTH MANAGEMENT, INC.
a Florida corporation
By: /s/ Xxxxxx X. Xxxxxx By: /s/Xxxx X. Xxxxxxx
------------------------ ------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxx X. Xxxxxxx
Title: Title: President
(Corporate Seal)
NOUVEAU HEALTH MANAGEMENT,
ATTEST: INC.
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx By: /s/Xxxx X. Xxxxxxx
------------------------ ------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxx X. Xxxxxxx
Title: Title: President
(Corporate Seal)
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CERTIFICATE OF THE SECRETARY
OF
NOUVEAU HEALTH MANAGEMENT, INC.
(a Delaware corporation)
I, Xxxxxx X. Xxxxxx, the Secretary of Nouveau Health Management, Inc.,
a Delaware corporation ("HMI-Delaware"), hereby certify that the Agreement and
Plan of Merger to which this certificate is attached, after having been first
duly signed on behalf of HMIDelaware by its President under its corporate seal,
was duly approved and adopted by a Written Consent dated as of January 11, 1996
of the holder of all of the outstanding stock of HMI-Delaware entitled to vote
thereon.
WITNESS my hand and seal this 11th day of January, 1996.
(SEAL) ______/S/Xxxxxx X. Herman____________
Secretary
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Exhibit A
CERTIFICATE OF INCORPORATION
OF
NOUVEAU HEALTH MANAGEMENT, INC.
THE UNDERSIGNED, for the purpose of forming a corporation pursuant to
the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY as
follows:
FIRST: NAME.
The name of the Corporation is:
NOUVEAU HEALTH MANAGEMENT, INC.
SECOND: REGISTERED OFFICE; REGISTERED AGENT.
The registered office of the Corporation is to be
located at Prentice Hall Corporation System, Inc., 00 Xxxxxxxxxx Xxxxxx, Xxxxx
X-000, Xxxxx, Xxxxxxxx 00000. The name of its registered agent at that address
is Prentice Hall Corporation System, Inc.
THIRD: PURPOSE.
The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: CAPITALIZATION.
The total number of shares of stock which the
Corporation shall have authority to issue is twenty-six million (26,000,000)
shares of which twenty-five million (25,000,000) shares shall be designated
"Common Stock" and one million (1,000,000) shares shall be designated "Preferred
Stock". Shares of Common Stock and Preferred Stock shall have a par value of
$.001 per share.
Common Stock
Subject to the prior or equal rights, if any, of any
Preferred Stock which hereafter may be authorized of any and all series stated
and expressed by the Board of Directors in the resolution or resolutions
providing for the issuance of such
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Preferred Stock, the holders of Common Stock shall be entitled (i) to receive
dividends when and as declared by the Board of Directors out of any funds
legally available therefor and (ii) in the event of any dissolution, liquidation
or winding up of the Corporation, to receive the remaining assets of the
Corporation, ratably according to the number of shares of Common Stock held. The
holders of Common Stock shall be entitled to one vote for each share of Common
Stock held on all matters submitted to a vote of stockholders of the
Corporation. No holder of Common Stock shall have any preemptive right to
purchase or subscribe for any part of any issue of stock of any class
whatsoever, whether now or hereafter authorized.
Preferred Stock
Authority is hereby expressly granted to the Board of
Directors from time to time to issue series of Preferred Stock and, in
connection with the creation of each such series, to fix by the resolution or
resolutions providing for the issue of shares thereof, the number of shares of
such series, and the powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations and restrictions of such series, to the full extent now or hereafter
permitted by the laws of the State of Delaware.
FIFTH: LIABILITY OF DIRECTORS.
No director shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that to the extent required by the
provisions of paragraph 102(b)(7) of the General Corporation Law of the State of
Delaware or any successor statute, or any other laws of the State of Delaware,
this provision shall not eliminate or limit the liability of a director (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 involve
intentional misconduct or a knowing violation of law, (iii) under paragraph 174
of the General Corporation Law of the State of Delaware, (iv) for any
transaction from which the director derived an improper personal benefit or (v)
for any act or omission occurring prior to the date when the provision becomes
effective. If the General Corporation Law of the State of Delaware hereafter is
amended to authorize the further elimination or limitation on personal liability
of directors, then the liability of a director of the Corporation, in addition
to the limitation on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended General Corporation Law of the State of
Delaware. Any repeal or modification of this Article Fifth by the stockholders
of the Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation existing
at the time of such repeal or modification.
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SIXTH: INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
1. Indemnification. The Corporation shall indemnify
each person who was or is made a party or is threatened to be made a party to or
is involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"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, officer, employee or
agent of the Corporation or is or was serving at the request of the Corporation
as director, officer, employee or agent 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, employee or agent
or alleged action in any other capacity while service as a director, officer,
employee or agent, to the maximum extent authorized by the General Corporation
Law of the State of Delaware, 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
expense, liability and loss (including attorneys' fees, judgments, fines, excise
taxes or penalties pursuant to the Employee Retirement Income Security Act of
1974, as amended, and amounts paid or to be paid in settlement) reasonably
incurred by such person in connection with such proceeding and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators. The Corporation may, to the fullest extent
permitted by the General Corporation Law of the State of Delaware, purchase and
maintain insurance on behalf of any such person. The Corporation may create a
trust fund, grant a security interest or use other means (including without
limitation a letter of credit) to ensure the payment of such sums as may become
necessary to effect the indemnification as provided herein. The indemnification
provided herein shall not be deemed to limit the right of the Corporation to
indemnify any other person for any such expenses to the fullest extent permitted
by the General Corporation Law of the State of Delaware, nor shall it be deemed
exclusive of any other rights to which any person seeking indemnification from
the Corporation may be entitled under any agreement, the Corporation's By-Laws,
vote of stockholders or disinterested directors, or otherwise, both as to action
in such person's official capacity and as to action in another capacity while
holding such office.
2. Reimbursement and Advances. The Corporation, from
time to time, shall reimburse or advance to any person referred to in paragraph
1 the funds necessary for payment of expenses (including attorneys' fees, costs
and charges) incurred in connection with any action or proceeding referred to in
paragraph 1, upon receipt of a written undertaking by or on behalf of such
person to repay such
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amount(s) if a judgment or other final adjudication adverse to such person
establishes that he or she is not entitled to be indemnified by the Corporation
under this Article Sixth.
3. Serving at the Request of the Corporation. Without
limitation of any indemnification provided by paragraph 1, any person referred
to in paragraph 1 serving (a) another corporation, partnership, joint venture or
trust of which the majority of the voting power or residual economic interest is
held, directly or indirectly, by the Corporation, or (b) any employee benefit
plan of the Corporation, in any capacity, shall be deemed to be doing so at the
request of the Corporation.
4. Determination of Entitlement. Any person entitled
to indemnification or to the reimbursement or advancement of expenses as a
matter of right pursuant to this Article Sixth may elect to have the right to
indemnification (or the reimbursement or advancement of expenses) interpreted on
the basis of the applicable law in effect at the time of the occurrence of the
event or events giving rise to the action or proceeding, to the extent permitted
by law, or on the basis of the applicable law in effect at the time
indemnification is sought.
5. Contractual Right. The right to indemnification or
to the reimbursement or advancement of expenses pursuant to this Article Sixth
or a resolution or agreement authorized pursuant to this Article Sixth (a) is a
contract right pursuant to which the person entitled thereto may bring suit as
if the provisions hereof (or of any such resolution) were set forth in a
separate written contract between the Corporation and such person, (b) is
intended to be retroactive and, to the extent permitted by law, shall be
available with respect to events occurring prior to the adoption hereof, and (c)
shall continue to exist after the rescission or restrictive modification hereof
with respect to events occurring prior thereto. The Corporation shall not be
obligated under this Article Sixth to make any payment hereunder to the extent
the person seeking indemnification hereunder has actually received payment of
the amounts otherwise indemnifiable hereunder.
6. Judicial Claims. If a request for indemnification
or for the reimbursement or advancement of expenses pursuant to this Article
Sixth is not paid in full by the Corporation within thirty (30) days after a
written claim has been received by the Corporation, the claimant, at any time
thereafter, may bring suit against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled also to be paid the expenses of prosecuting such claim. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel or stockholders) to have made a determination prior to the commencement
of such action that indemnification of, or reimbursement or advancement of
expenses to, the claimant is proper in the circumstances, or an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel or stockholders) that the claimant is not entitled to
indemnification or to
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the reimbursement or advancement of expenses, shall be a defense to the action
or create a presumption that the claimant is not so entitled.
7. Successor Corporation. For purposes of this
Article Sixth, the term "the Corporation" shall include any legal successor to
the Corporation, including any corporation which acquires all or substantially
all of the assets of the Corporation in one or more transactions.
8. Nonexclusivity. The rights granted pursuant to, or
provided by, the foregoing provisions of this Article Sixth shall be in addition
to, and shall not be exclusive of, any other rights to indemnification or the
reimbursement or advancement of expenses to which such person otherwise may be
entitled by law, contract or otherwise.
SEVENTH: INCORPORATOR.
The name and mailing address of the incorporator of
the Corporation is:
Xxxxxx X. Xxxxxxx, Esq.
Shereff, Friedman, Xxxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The undersigned, being the incorporator hereinbefore named, for
the purpose of forming a corporation to do business both within and without the
State of Delaware, and in pursuance of the General Corporation Law of the State
of Delaware, does make and file this Certificate this 11th day of January, 1996.
/S/ Xxxxxx X. Xxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxx
Sole Incorporator
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Exhibit B
BY-LAWS
OF
HEALTH MANAGEMENT, INC.
ARTICLE I
OFFICES
Section 1.1. Registered Office. The registered office of the
Corporation within the State of Delaware shall be located at the principal place
of business in said State of the Corporation or individual acting as the
Corporation's registered agent in Delaware.
Section 1.2. Other Offices. The Corporation may also have offices and
places of business at such other places both within and without the State of
Delaware as the Board of Directors may from time to time determine or the
business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1. Place of Meetings. All meetings of stockholders shall be
held at the principal office of the Corporation, or at such other place within
or without the State of Delaware as shall be stated in the notice of the meeting
or in a duly executed waiver of notice thereof.
Section 2.2. Annual Meetings. The annual meeting of stockholders for
the election of directors shall be held at such time on such day, other than a
legal holiday, as the Board of
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Directors in each such year determines. At the annual meeting, the stockholders
entitled to vote for the election of directors shall elect, by a plurality vote,
a Board of Directors and transact such other business as may properly come
before the meeting.
Section 2.3. Special Meetings. Special meetings of stockholders, for
any purpose or purposes, may be called by a majority of the Board of Directors.
Any such request shall state the purpose or purposes of the proposed meeting. At
any special meeting of stockholders, only such business may be transacted as is
related to the purpose or purposes set forth in the notice of such meeting.
Section 2.4. Notice of Meetings. Written notice of every meeting of
stockholders, stating the place, date and hour thereof and, in the case of a
special meeting of stockholders, the purpose or purposes thereof and the person
or persons by whom or at whose direction such meeting has been called and such
notice is being issued, shall be given not less than ten (10) nor more than
sixty (60) days before the date of the meeting, either personally or by mail, by
or at the direction of the Chairman of the Board, Secretary, or the persons
calling the meeting, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be given when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the stock transfer books of the Corporation. Nothing
herein contained shall preclude the stockholders from waiving notice as provided
in Section 4.1 hereof.
Section 2.5. Quorum. The holders of a majority of the issued and
outstanding shares of stock of the Corporation entitled to vote, represented in
person or by proxy, shall be
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necessary to and shall constitute a quorum for the transaction of business at
any meeting of stockholders. If, however, such quorum shall not be present or
represented at any meeting of stockholders, the stockholders entitled to vote
thereat, present in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At any such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed. Notwithstanding the foregoing, if after any such adjournment the Board
of Directors shall fix a new record date for the adjourned meeting, or if the
adjournment is for more than thirty (30) days, a notice of such adjourned
meeting shall be given as provided in Section 2.4 of these By-Laws, but such
notice may be waived as provided in Section 4.1 hereof.
Section 2.6. Voting. At each meeting of stockholders, each holder of
record of shares of stock entitled to vote shall be entitled to vote in person
or by proxy, and each such holder shall be entitled to one vote for every share
standing in his name on the books of the Corporation as of the record date fixed
by the Board of Directors or prescribed by law and, if a quorum is present, a
majority of the shares of such stock present or represented at any meeting of
stockholders shall be the vote of the stockholders with respect to any item of
business, unless otherwise provided by any applicable provision of law, by these
By-Laws or by the Certificate of Incorporation of the Corporation.
Section 2.7. Proxies. Every stockholder entitled to vote at a meeting
or by consent without a meeting may authorize another person or persons to act
for him by proxy. Each
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proxy shall be in writing executed by the stockholder giving the proxy or by his
duly authorized attorney. No proxy shall be valid after the expiration of three
(3) years from its date, unless a longer period is provided for in the proxy.
Unless and until voted, every proxy shall be revocable at the pleasure of the
person who executed it, or his legal representatives or assigns, except in those
cases where an irrevocable proxy permitted by statute has been given.
Section 2.8. Consents. Whenever a vote of stockholders at a meeting
thereof is required or permitted to be taken in connection with any corporate
action by any provision of law, the Certificate of Incorporation of the
Corporation or these By-Laws, the meeting, prior notice thereof and vote of
stockholders may be dispensed with if the holders of shares having not less than
the minimum number of votes that would have been necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted shall consent in writing to the taking of such action. Where
corporate action is taken in such matter by less than unanimous written consent,
prompt written notice of the taking of such action shall be given thereto.
Section 2.9. Stock Records. The Secretary or agent having charge of the
stock transfer books shall make, at least ten (10) days before each meeting of
stockholders, a complete list of the stockholders entitled to vote at such
meeting or any adjournment thereof, arranged in alphabetical order and showing
the address of and the number and class and series, if any, of shares held by
each. Such list, for a period of ten (10) days prior to such meeting, shall be
kept at the principal place of business of the Corporation or at the office of
the transfer agent or registrar of the Corporation and such other places as
required by statute and
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shall be subject to inspection by any stockholder at any time during usual
business hours. Such list shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any stockholder
at any time during the meeting.
ARTICLE III
DIRECTORS
Section 3.1. Number. The number of directors of the Corporation which
shall constitute the entire Board of Directors shall initially be fixed by the
Incorporator and thereafter from time to time by a vote of a majority of the
entire Board of Directors and shall be not less than one nor more than fifteen.
The first Board of Directors shall consist of two (2) members.
Section 3.2. Resignation and Removal. Any director may resign at any
time upon notice of resignation to the Corporation. Any director may be removed
at any time by vote of the stockholders then entitled to vote for the election
of directors at a special meeting called for that purpose, either with or
without cause.
Section 3.3. Newly Created Directorships and Vacancies. Newly created
directorships resulting from an increase in the number of directors and
vacancies occurring in the Board of Directors for any reason whatsoever shall be
filled by vote of the Board of Directors. If the number of directors then in
office is less than a quorum, such newly created directorships and vacancies may
be filled by a vote of a majority of the directors then in office. Any director
elected to fill a vacancy shall be elected until the next meeting of
stockholders at which the
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election of directors is in the regular course of business, and until his
successor has been elected and qualified.
Section 3.4. Powers and Duties. Subject to the applicable provisions of
law, these By-Laws or the Certificate of Incorporation of the Corporation, but
in furtherance and not in limitation of any rights therein conferred, the Board
of Directors shall have the control and management of the business and affairs
of the Corporation and shall exercise all such powers of the Corporation and do
all such lawful acts and things as may be exercised by the Corporation.
Section 3.5. Place of Meetings. All meetings of the Board of Directors
may be held either within or without the State of Delaware.
Section 3.6. Annual Meetings. An annual meeting of each newly elected
Board of Directors shall be held immediately following the annual meeting of
stockholders, and no notice of such meeting to the newly elected directors shall
be necessary in order to legally constitute the meeting, provided a quorum shall
be present, or the newly elected directors may meet at such time and place as
shall be fixed by the written consent of all of such directors.
Section 3.7. Regular Meetings. Regular meetings of the Board of
Directors may be held upon such notice or without notice, and at such time and
at such place as shall from time to time be determined by the Board of
Directors.
Section 3.8. Special Meetings. Special meetings of the Board of
Directors may be called by a majority of the Board of Directors. Neither the
business to be transacted at, nor
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the purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
Section 3.9. Notice of Meetings. Notice of each special meeting of the
Board of Directors (and of each regular meeting for which notice shall be
required) shall be given by the Secretary or an Assistant Secretary and shall
state the place, date and time of the meeting. Notice of each such meeting shall
be given orally or shall be mailed to each director at his residence or usual
place of business. If notice of less than three (3) days is given, it shall be
oral, whether by telephone or in person, or sent by special delivery mail or
telegraph. If mailed, the notice shall be deemed given when deposited in the
United States mail, postage prepaid. Notice of any adjourned meeting, including
the place, date and time of the new meeting, shall be given to all directors not
present at the time of the adjournment, as well as to the other directors unless
the place, date and time of the new meeting is announced at the adjourned
meeting. Nothing herein contained shall preclude the directors from waiving
notice as provided in Section 4.1 hereof.
Section 3.10. Quorum and Voting. At all meetings of the Board of
Directors a majority of the entire Board of Directors shall be necessary to and
shall constitute a quorum for the transaction of business at any meeting of
directors, unless otherwise provided by any applicable provision of law, by
these By-Laws, or by the Certificate of Incorporation of the Corporation. The
act of a majority of the directors present at the time of the vote, if a quorum
is present at such time, shall be the act of the Board of Directors, unless
otherwise provided by an applicable provision of law, by these By-Laws or by the
Certificate of Incorporation of
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the Corporation. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, until a quorum shall be present.
Section 3.11. Compensation. The Board of Directors, by the affirmative
vote of a majority of the directors then in office, and irrespective of any
personal interest of any of its members, shall have authority to establish
reasonable compensation of all directors for services to the Corporation as
directors, officers or otherwise.
Section 3.12. Books and Records. The directors may keep the books of
the Corporation, except such as are required by law to be kept within the state,
outside of the State of Delaware, at such place or places as they may from time
to time determine.
Section 3.13. Action without a Meeting. Any action required or
permitted to be taken by the Board of Directors, or by a committee of the Board
of Directors, may be taken without a meeting if all members of the Board of
Directors or the committee, as the case may be, consent in writing to the
adoption of a resolution authorizing the action. Any such resolution and the
written consents thereto by the members of the Board of Directors or committee
shall be filed with the minutes of the proceedings of the Board of Directors or
committee.
Section 3.14. Telephone Participation. Any one or more members of the
Board of Directors, or any committee of the Board of Directors, may participate
in a meeting of the Board of Directors or committee by means of a conference
telephone call or similar
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communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at a meeting.
Section 3.15. Committees of the Board. The Board of Directors, by
resolution adopted by a majority of the entire Board of Directors, may designate
one or more committees, each consisting of one or more directors. The Board of
Directors may designate one or more directors as alternate members of any such
committee. Such alternate members may replace any absent member or members at
any meeting of such committee. Each committee (including the members thereof)
shall serve at the pleasure of the Board of Directors and shall keep minutes of
its meetings and report the same to the Board of Directors. Except as otherwise
provided by law, each such committee, to the extent provided in the resolution
establishing it, shall have and may exercise all the authority of the Board of
Directors with respect to all matters. However, no such committee shall have
power or authority to:
(a) amend the Certificate of Incorporation of the
Corporation;
(b) adopt an agreement of merger or consolidation;
(c) recommend to the stockholders the sale, lease or
exchange of all or substantially all of the
Corporation's property and assets;
(d) recommend to the stockholders a dissolution of the
Corporation or a revocation of a dissolution; or
(e) amend these By-Laws.
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Unless expressly so provided by resolution of the Board of Directors, no such
committee shall have power or authority to (1) declare a dividend or (2)
authorize the issuance of shares of the Corporation of any class.
ARTICLE IV
WAIVER
Section 4.1. Waiver. Whenever a notice is required to be given by any
provision of law, by these By-Laws, or by the Certificate of Incorporation of
the Corporation, a waiver thereof in writing, whether before or after the time
stated therein, shall be deemed equivalent to such notice. In addition, any
stockholder attending a meeting of stockholders in person or by proxy without
protesting prior to the conclusion of the meeting the lack of notice thereof to
him, and any director attending a meeting of the Board of Directors without
protesting prior to the meeting or at its commencement such lack of notice,
shall be conclusively deemed to have waived notice of such meeting.
ARTICLE V
OFFICERS
Section 5.1. Executive Officers. The officers of the Corporation shall
be a President or Chief Executive Officer, a Treasurer and a Secretary. Any
person may hold two or more of such offices. The officers of the Corporation
shall be elected annually (and from time to time by the Board of Directors, as
vacancies occur), at the annual meeting of the Board of Directors following the
meeting of stockholders at which the Board of Directors was elected.
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Section 5.2. Other Officers. The Board of Directors may appoint such
other officers and agents, including a Chief Executive Officer, Vice President,
Assistant Vice Presidents, Secretaries, Assistant Secretaries and Assistant
Treasurers, as it shall at any time or from time to time deem necessary or
advisable.
Section 5.3. Authorities and Duties. All officers, as between
themselves and the Corporation, shall have such authority and perform such
duties in the management of the business and affairs of the Corporation as may
be provided in these By-Laws, or, to the extent not so provided, as may be
prescribed by the Board of Directors.
Section 5.4. Tenure and Removal. The officers of the Corporation shall
be elected or appointed to hold office until their respective successors are
elected or appointed. All officers shall hold office at the pleasure of the
Board of Directors, and any officer elected or appointed by the Board of
Directors may be removed at any time by the Board of Directors for cause or
without cause at any regular or special meeting.
Section 5.5. Vacancies. Any vacancy occurring in any office of the
Corporation, whether because of death, resignation or removal, with or without
cause, or any other reason, shall be filled by the Board of Directors.
Section 5.6. Compensation. The salaries and other compensation of all
officers and agents of the Corporation shall be fixed by or in the manner
prescribed by the Board of Directors.
Section 5.7. President. The President shall have general charge of the
business and affairs of the Corporation and, in the absence of the Chairman of
the Board, the President shall
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preside at all meetings of the stockholders and the directors. The President
shall perform such other duties as are properly required of him by the Board of
Directors.
Section 5.8. Vice President. Each Vice President, if any, shall
perform such duties as may from time to time be assigned to him by the Board of
Directors.
Section 5.9. Secretary. The Secretary shall attend all meetings of the
stockholders and all meetings of the Board of Directors and shall record all
proceedings taken at such meetings in a book to be kept for that purpose; he
shall see that all notices of meetings of stockholders and meetings of the Board
of Directors are duly given in accordance with the provisions of these By-Laws
or as required by law; he shall be the custodian of the records and of the
corporate seal or seals of the Corporation; he shall have authority to affix the
corporate seal or seals to all documents, the execution of which, on behalf of
the Corporation, under its seal, is duly authorized, and when so affixed it may
be attested by his signature; and in general, he shall perform all duties
incident to the office of the Secretary of a corporation, and such other duties
as the Board of Directors may from time to time prescribe.
Section 5.10. Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation and shall deposit, or cause to be deposited, in the name and to the
credit of the Corporation, all moneys and valuable effects in such banks, trust
companies, or other depositories as shall from time to time be selected by the
Board of Directors. He shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation; he shall render to the
President and to each member of the Board of Directors, whenever requested, an
account of all of his transactions as Treasurer
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and of the financial condition of the Corporation; and, in general, he shall
perform all of the duties incident to the office of the Treasurer of a
corporation, and such other duties as the Board of Directors may from time to
time prescribe.
Section 5.11. Other Officers. The Board of Directors may also elect or
may delegate to the President the power to appoint such other officers as it may
at any time or from time to time deem advisable, and any officers so elected or
appointed shall have such authority and perform such duties as the Board of
Directors or the President, if he shall have appointed them, may from time to
time prescribe.
ARTICLE VI
PROVISIONS RELATING TO STOCK CERTIFICATES AND STOCKHOLDERS
Section 6.1. Form and Signature. The shares of the Corporation shall
be represented by a certificate signed by the President or any Vice President
and by the Secretary or any Assistant Secretary or the Treasurer or any
Assistant Treasurer, and shall bear the seal of the Corporation or a facsimile
thereof. Each certificate representing shares shall state upon its face (a) that
the Corporation is formed under the laws of the State of Delaware, (b) the name
of the person or persons to whom it is issued, (c) the number of shares which
such certificate represents and (d) the par value, if any, of each share
represented by such certificate. Section 6.2. Registered Stockholders. The
Corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares of stock to receive dividends or
other distributions, and to vote as such owner, and to hold liable for calls
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and assessments a person registered on its books as the owner of stock, and
shall not be bound to recognize any equitable or legal claim to or interest in
such shares on the part of any other person.
Section 6.3. Transfer of Stock. Upon surrender to the Corporation or
the appropriate transfer agent, if any, of the Corporation, of a certificate
representing shares of stock duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, and, in the event that the
certificate refers to any agreement restricting transfer of the shares which it
represents, proper evidence of compliance with such agreement, a new certificate
shall be issued to the person entitled thereto, the old certificate shall be
cancelled and the transaction shall be recorded upon the books of the
Corporation.
Section 6.4. Lost Certificates, etc. The Corporation may issue a new
certificate for shares in place of any certificate theretofore issued by it,
alleged to have been lost, mutilated, stolen or destroyed, and the Board of
Directors may require the owner of such lost, mutilated, stolen or destroyed
certificate, or his legal representatives, to make an affidavit of the fact
and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation on account of the
alleged loss, mutilation, theft or destruction of any such certificate or the
issuance of any such new certificate.
Section 6.5. Record Date. For the purpose of determining the
stockholders entitled to notice of, or to vote at, any meeting of stockholders
or any adjournment thereof, or to express written consent to any corporate
action without a meeting, or for the purpose of determining stockholders
entitled to receive payment of any dividend or other distribution or allotment
of
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any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date. Such date shall not
be more than sixty (60) nor less than ten (10) days before the date of any such
meeting, nor more than sixty (60) days prior to any other action.
Section 6.6. Regulations. Except as otherwise provided by law, the
Board of Directors may make such additional rules and regulations, not
inconsistent with these By-Laws, as it may deem expedient, concerning the issue,
transfer and registration of certificates for the securities of the Corporation.
The Board of Directors may appoint, or authorize any officer or officers to
appoint, one or more transfer agents and one or more registrars and may require
all certificates for shares of capital stock to bear the signature or signatures
of any of them.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1. Dividends and Distributions. Dividends and other
distributions upon or with respect to outstanding shares of stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting, and may be paid in cash, bonds, property, or in stock of the
Corporation. The Board of Directors shall have full power and discretion,
subject to the provisions of the Certificate of Incorporation of the Corporation
or the terms of any other corporate document or instrument to determine what, if
any, dividends or distributions shall be declared and paid or made.
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Section 7.2. Checks, etc. All checks or demands for money and notes or
other instruments evidencing indebtedness or obligations of the Corporation
shall be signed by such officer or officers or other person or persons as may
from time to time be designated by the Board of Directors.
Section 7.3. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its incorporation and the words "Corporate
Seal Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
Section 7.4. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 7.5. General and Special Bank Accounts. The Board of Directors
may authorize from time to time the opening and keeping of general and special
bank accounts with such banks, trust companies or other depositories as the
Board of Directors may designate or as may be designated by any officer or
officers of the Corporation to whom such power of designation may be delegated
by the Board of Directors from time to time. The Board of Directors may make
such special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these By-Laws, as it may deem expedient.
ARTICLE IX
ADOPTION AND AMENDMENTS
Section 9.1. Power to Amend. These By-Laws may be amended or repealed
and any new By-Laws may be adopted by the Board of Directors; provided that
these By-Laws and any
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other By-Laws amended or adopted by the Board of Directors may be amended, may
be reinstated, and new By-Laws may be adopted, by the stockholders of the
Corporation entitled to vote at the time for the election of directors.
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