EXHIBIT 2.1
================================================================================
AGREEMENT AND PLAN OF MERGER
AMONG
CENTEX CONSTRUCTION PRODUCTS, INC.,
CENTEX CORPORATION
AND
ARG MERGER CORPORATION
DATED AS OF JULY 21, 2003
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE I THE MERGER...................................................................................3
SECTION 1.1. The Merger........................................................................3
SECTION 1.2. Effect on Capital Stock...........................................................3
SECTION 1.3. Share Certificates................................................................4
ARTICLE II THE SURVIVING CORPORATION...................................................................4
SECTION 2.1. Certificate of Incorporation......................................................4
SECTION 2.2. By-Laws...........................................................................5
SECTION 2.3. Directors and Officers............................................................5
ARTICLE III COVENANTS; REPRESENTATIONS AND WARRANTIES..................................................6
SECTION 3.1. Stockholders Meeting..............................................................6
SECTION 3.2. Filings; Other Actions............................................................7
SECTION 3.3. Reasonable Best Efforts...........................................................8
SECTION 3.4. Representations and Warranties of the Company.....................................8
SECTION 3.5. Representations and Warranties of Centex and Merger Sub...........................9
ARTICLE IV CONDITIONS TO THE MERGER...................................................................10
SECTION 4.1. Conditions to the Obligations of the Company.....................................10
SECTION 4.2. Conditions to the Obligations of Centex and Merger Sub...........................11
ARTICLE V TERMINATION.................................................................................11
SECTION 5.1. Termination......................................................................11
SECTION 5.2. Effect of Termination............................................................12
ARTICLE VI MISCELLANEOUS..............................................................................12
SECTION 6.1. Notices..........................................................................12
SECTION 6.2. Defined Terms....................................................................13
SECTION 6.3. Successors and Assigns...........................................................14
SECTION 6.4. Governing Law....................................................................14
SECTION 6.5. Counterparts; Effectiveness......................................................14
SECTION 6.6. Amendments.......................................................................15
AGREEMENT AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER, dated as of July 21, 2003 (this
"Agreement"), is entered into by and among CENTEX CONSTRUCTION PRODUCTS, INC., a
Delaware corporation (the "Company"), CENTEX CORPORATION, a Nevada corporation
("Centex"), and ARG MERGER CORPORATION, a
Delaware corporation and a wholly
owned subsidiary of Centex ("Merger Sub").
WITNESSETH:
WHEREAS, Centex owns (i) all of the issued and outstanding shares of
common stock, par value $.01 per share, of Merger Sub ("Merger Sub Common
Stock") and (ii) an aggregate of 11,962,304 shares of common stock, par value
$.01 per share ("Common Stock"), of the Company, representing approximately
65% of the total number of issued and outstanding shares of Common Stock;
WHEREAS, prior to the Effective Time (as hereinafter defined) of the
Merger (as hereinafter defined), Centex plans to contribute to Merger Sub an
aggregate of 9,220,000 shares of Common Stock owned by it (the "Contributed
Shares") and will retain 2,742,304 shares of Common Stock owned by it (the
"Additional Shares");
WHEREAS, Centex and the Company desire that Merger Sub be merged with
and into the Company (the "Merger"), upon the terms and subject to the
conditions set forth in this Agreement and in accordance with the applicable
provisions of the General Corporation Law of the State of
Delaware (the "DGCL"),
with the result that (i) all of the issued and outstanding shares of Merger Sub
Common Stock will be converted into an aggregate of 9,220,000 shares of a new
class of common stock of the Company to be designated as Class B Common Stock,
par value $.01 per share ("Class B Common Stock"), and (ii) all of the issued
and outstanding shares of Common Stock, including the Additional Shares (other
than the Contributed Shares, which will be canceled with no securities or other
consideration being issued in exchange therefor) will remain issued and
outstanding;
WHEREAS, concurrently with the execution hereof, the Company and Centex
are entering into a Distribution Agreement, dated as of the date hereof (the
"Distribution Agreement"), pursuant to which Centex has agreed, subject to the
satisfaction of certain conditions set forth in the Distribution Agreement, to
distribute on a pro rata basis to the holders of the common stock, par value
$.25 per share, of Centex (the "Distribution") (i) all of the Additional Shares
and (ii) all of the shares of Class B Common Stock received by it as a result of
the Merger (the Class B Common Stock and the Additional Shares shall be
collectively referred to herein as the "Distributable Shares");
-1-
WHEREAS, the Distribution Agreement provides that the Company will pay
a pro rata cash dividend (the "Cash Dividend") to all of its stockholders in the
amount of $6.00 per share of Common Stock;
WHEREAS, in accordance with the terms of the Distribution Agreement,
the Cash Dividend is to be paid prior to the Effective Time of the Merger, and
the Merger is to occur prior to the consummation of the Distribution;
WHEREAS, a special committee of the Board of Directors of the Company
(the "Special Committee") has determined that this Agreement and the Merger are
fair to, and in the best interests of, the Company and its stockholders (other
than Centex and Merger Sub);
WHEREAS, the Board of Directors of the Company has, based in part on
the determination of the Special Committee referred to above, (i) determined
that this Agreement and the Merger are fair to and in the best interests of, the
Company and its stockholders, (ii) approved this Agreement and, subject to
obtaining the approval of the stockholders of the Company as required under
applicable law, the Merger, and (iii) declared this Agreement to be advisable;
WHEREAS, the Board of Directors of the Company has directed that this
Agreement and the Governance Proposals (as hereinafter defined) and the
Stockholder Rights Plan Proposal (as hereinafter defined) be submitted to the
stockholders of the Company at the Stockholders Meeting (as hereinafter
defined);
WHEREAS, the Board of Directors of Merger Sub has (i) determined that
this Agreement and the Merger are fair to and in the best interests of, Merger
Sub and its sole stockholder, (ii) approved this Agreement and the Merger and
(iii) declared the Merger Agreement to be advisable;
WHEREAS, the sole stockholder of Merger Sub has approved this Agreement
and the Merger by written consent of such sole stockholder;
WHEREAS, the Merger is intended to constitute a reorganization within
the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as
amended; and
WHEREAS, capitalized terms used herein have the meanings assigned to
them in the provisions identified in Section 6.2;
NOW, THEREFORE, in consideration of the premises, the terms and
conditions set forth herein, the mutual benefits to be gained from the
performance thereof, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
-2-
ARTICLE I
THE MERGER
SECTION 1.1. The Merger.
(a) Upon the terms and subject to the conditions of this Agreement and
in accordance with the applicable provisions of the DGCL, at the Effective Time,
Merger Sub shall be merged with and into the Company, whereupon the separate
corporate existence of Merger Sub shall cease, and the Company shall be the
surviving corporation (the "Surviving Corporation").
(b) Following satisfaction or waiver of the conditions specified in
Article IV, the Company and Merger Sub shall file a certificate of merger (the
"Certificate of Merger") with the Secretary of State of the State of
Delaware
and make all other filings or recordings required by the DGCL in connection with
the Merger. The Merger shall become effective at such time as the Certificate of
Merger is duly filed with the Secretary of State of the State of
Delaware, or at
such later time as is specified in the Certificate of Merger in accordance with
applicable law (the "Effective Time").
(c) The Merger shall have the effects set forth in Section 259 of the
DGCL. Without limiting the generality of the foregoing, from and after the
Effective Time, the Surviving Corporation shall possess all the rights,
privileges, powers and franchises and be subject to all of the restrictions,
disabilities and duties of the Company and Merger Sub, all as provided in the
DGCL.
SECTION 1.2. Effect on Capital Stock. At the Effective Time,
automatically and without necessity of any action on the part of the Company or
Merger Sub:
(a) all of the shares of Merger Sub Common Stock outstanding
immediately prior to the Effective Time shall be canceled and converted into
9,220,000 fully paid and non-assessable shares of Class B Common Stock of the
Surviving Corporation and shall have the rights and privileges set forth in the
Surviving Corporation Certificate of Incorporation (as hereinafter defined);
(b) all of the Contributed Shares shall be canceled and shall cease to
exist, and no stock of the Surviving Corporation or any other consideration
shall be delivered in exchange therefor; and
(c) all of the shares of Common Stock (including the Additional Shares)
outstanding immediately prior to the Effective Time (other than the Contributed
Shares), shall remain issued and outstanding, and each share of Common Stock
that immediately prior to the Effective Time was held in the treasury of the
Company, if any, shall remain in the treasury of the Company and, in each case,
such shares shall
-3-
have the rights and privileges set forth in the Surviving Corporation
Certificate of Incorporation.
SECTION 1.3. Share Certificates.
(a) As soon as practicable after the Effective Time:
(i) the Surviving Corporation shall deliver, or cause to be
delivered, to Centex a certificate or certificates issued in the name
of Centex, representing an aggregate of 9,220,000 shares of Class B
Common Stock to be issued pursuant to Section 1.2(a);
(ii) Merger Sub shall surrender the certificates representing
the Contributed Shares to the Surviving Corporation, and the Surviving
Corporation shall cancel such certificates; and
(iii) the certificates that immediately prior to the Effective
Time represented shares of Common Stock (including the Additional
Shares) that remain issued and outstanding or in the treasury of the
Company in accordance with Section 1.2(c) shall not be exchanged and
shall continue to represent the same number of shares of Common Stock
of the Surviving Corporation, without physical substitution of share
certificates.
(b) Any dividend or other distribution declared or made with respect to
any shares of capital stock of the Company, whether the record date for such
dividend or distribution is before or after the Effective Time, shall be paid to
the holder of record of such shares of capital stock on such record date,
regardless of whether such holder has surrendered its certificates representing
Common Stock or received certificates representing shares of Class B Common
Stock pursuant to Section 1.3(a)(i).
ARTICLE II
THE SURVIVING CORPORATION
SECTION 2.1. Certificate of Incorporation.
(a) In the event that this Agreement is adopted by the stockholders,
and each of the Written Consent Proposal, the Staggered Board Proposal, the
Special Meeting Proposal, the Supermajority Voting Proposal and the Authorized
Capital Increase Proposal (in each case as hereinafter defined, and
collectively, the "Governance Proposals") are adopted by the stockholders of the
Company at the Stockholders Meeting, at the Effective Time, the Restated
Certificate of Incorporation of the Company as in effect immediately prior to
the Effective Time shall be amended so as to read in its entirety as set forth
in Exhibit A-1 hereto, and as so amended shall be the Restated Certificate of
Incorporation of the Surviving Corporation.
-4-
(b) In the event the adoption of any of the Governance Proposals is not
approved, but the adoption of this Agreement is approved, by the stockholders of
the Company at the Stockholders Meeting, at the Effective Time, the Restated
Certificate of Incorporation of the Company as in effect immediately prior to
the Effective Time shall be amended so as to read in its entirety as set forth
in Exhibit A-2 hereto (with such changes as are set forth in Exhibit A-2 hereto
to reflect such of the Governance Proposals, if any, as may be approved by the
stockholders of the Company at the Stockholders Meeting in accordance with
Section 242 of the DGCL), and as so amended shall be the Restated Certificate of
Incorporation of the Surviving Corporation.
(c) The Restated Certificate of Incorporation of the Surviving
Corporation that becomes effective pursuant to Section 2.1(a) or 2.1(b) is
herein referred to as the "Surviving Corporation Certificate of Incorporation."
SECTION 2.2. By-Laws.
(a) In the event that this Agreement is adopted by the stockholders of
the Company, and each of the Governance Proposals are adopted by the
stockholders of the Company at the Stockholders Meeting, at the Effective Time,
the Amended and Restated Bylaws of the Company as in effect immediately prior to
the Effective Time shall be amended so as to read in their entirety as set forth
in Exhibit B-1 hereto, and as so amended shall be the Amended and Restated
Bylaws of the Surviving Corporation.
(b) In the event the adoption of any of the Governance Proposals is not
approved, but the adoption of this Agreement is approved, by the stockholders of
the Company at the Stockholders Meeting, at the Effective Time, the Amended and
Restated Bylaws of the Company as in effect immediately prior to the Effective
Time shall be amended so as to read in their entirety as set forth in Exhibit
B-2 hereto (with such changes as are set forth in Exhibit B-2 hereto to reflect
such of the Governance Proposals, if any, as may be approved by the stockholders
of the Company at the Stockholders Meeting in accordance with Section 242 of the
DGCL), and as so amended shall be the Amended and Restated Bylaws of the
Surviving Corporation.
(c) The Amended and Restated Bylaws of the Surviving Corporation as
amended pursuant to Section 2.2(a) or 2.2(b) are herein referred to as the
"Surviving Corporation Bylaws."
SECTION 2.3. Directors and Officers.
(a) The Board of Directors of the Surviving Corporation initially shall
consist of the persons serving as members of the Board of Directors immediately
prior to the Effective Time, together with one or more additional directors to
be designated by the Board of Directors of the Company prior to the Effective
Time, to the extent necessary to ensure that the total number of members of the
Board of Directors shall be at least seven immediately after the Effective Time.
From and after the
-5-
Effective Time, the directors of the Surviving Corporation shall consist of the
directors of the Company specified in the immediately preceding sentence, until
the earlier of their removal or resignation or until their successors are duly
elected or appointed and qualified in accordance with applicable law. At the
Effective Time, the directors of the Surviving Corporation shall be divided
pursuant to the Surviving Corporation Certificate of Incorporation into (i) two
separate classes (each a "Voting Constituency Class" and together, the "Voting
Constituency Classes") based on the class of common stock of the Surviving
Corporation the holders of which are entitled to elect the directors serving as
members of each such Voting Constituency Class and (ii) if the Staggered Board
Proposal is adopted, three classes (each a "Term of Office Class" and
collectively, the "Term of Office Classes") based on the expiration of the term
of office of the members of each such Term of Office Class. Each director in
office as of the Effective Time shall be allocated to a Voting Constituency
Class and (in the event the Staggered Board Proposal is adopted) a Term of
Office Class in accordance with the applicable provisions of the Surviving
Corporation Certificate of Incorporation. The Voting Constituency Class and (in
the event the Staggered Board Proposal is adopted) the Term of Office Class to
which each director is to be allocated shall be set forth in the Proxy Statement
(as hereinafter defined) at the time it is mailed to the stockholders of the
Company.
(b) From and after the Effective Time, until the earlier of their
removal or resignation or until their successors are duly appointed and
qualified in accordance with applicable law and the Surviving Corporation
Bylaws, the officers of the Company in office at the Effective Time shall be the
officers of the Surviving Corporation.
ARTICLE III
COVENANTS;
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Stockholders Meeting. The Company shall, as soon as
practicable following the date of this Agreement, duly call, give notice of,
convene and hold a meeting of its stockholders (the "Stockholders Meeting") for
the purpose of considering, as seven separate proposals, (i) the adoption of
this Agreement; (ii) the approval of an amendment to the Restated Certificate of
Incorporation of the Company to eliminate the ability of stockholders to act by
written consent (the "Written Consent Proposal"); (iii) the approval of an
amendment to the Restated Certificate of Incorporation of the Company to divide
the Board of Directors into three Term of Office Classes (the "Staggered Board
Proposal"); (iv) the approval of an amendment to the Restated Certificate of
Incorporation of the Company eliminating the ability of the Surviving
Corporation's stockholders to call a special meeting of the stockholders (the
"Special Meeting Proposal"); (v) the approval of an amendment to the Restated
Certificate of Incorporation of the Company requiring a supermajority vote of
the Company's stockholders entitled to vote thereon to amend certain provisions
of the Surviving Corporation's Certificate of Incorporation (the "Supermajority
Voting
-6-
Proposal"), (vi) the ratification of the adoption of a stockholder rights plan
to become effective upon the consummation of the Distribution (the "Stockholder
Rights Plan Proposal") and (vii) the approval of an amendment to the Restated
Certificate of Incorporation of the Company increasing the authorized capital
stock of the Company (the "Authorized Capital Increase Proposal"). The Special
Committee and the Board of Directors of the Company shall recommend to the
stockholders of the Company that the stockholders adopt this Agreement and
approve each of the Governance Proposals and the Stockholder Rights Proposal.
The Special Committee and the Board of Directors of the Company shall not
withdraw such recommendation; provided, however, that the Special Committee or
the Board of Directors may withdraw, change or modify such recommendation if it
determines reasonably and in good faith that the Special Committee or the Board
of Directors will violate its fiduciary duties to the stockholders of the
Company by not withdrawing, changing or modifying such recommendations.
SECTION 3.2. Filings; Other Actions.
(a) Subject to the provisions of this Agreement and the Distribution
Agreement, the Company shall prepare and file with the Securities and Exchange
Commission (the "SEC") as soon as reasonably practicable following the execution
hereof a proxy statement (the "Proxy Statement") for the solicitation of proxies
in favor of (i) the adoption of this Agreement and (ii) the approval of the
Governance Proposals and the Stockholder Rights Proposal. The Company shall not
propose to its stockholders the adoption of any of the Governance Proposals or
the Stockholder Rights Proposal as independent amendments to the Company's
Restated Certificate of Incorporation, but only as amendments to be adopted upon
the effectiveness of the Merger. The Company shall use all reasonable efforts to
have the Proxy Statement cleared by the SEC for mailing in definitive form as
promptly as practicable after such filing. The Company and Centex shall
cooperate with each other in the preparation of the Proxy Statement and any
amendment or supplement thereto, and the Company shall notify Centex of the
receipt of any comments of the SEC with respect to the Proxy Statement and of
any requests by the SEC for any amendment or supplement thereto or for
additional information, and shall provide to Centex promptly copies of all
correspondence between the SEC and the Company or any of its advisors with
respect to the Proxy Statement. The Company shall give Centex and its counsel
appropriate advance opportunity to review the Proxy Statement and all responses
to requests for additional information by and replies to comments of the SEC,
and shall incorporate therein any reasonable comments Centex may deliver to the
Company with respect thereto, before such Proxy Statement, response or reply is
filed with or sent to the SEC. The Company agrees to use its reasonable best
efforts, after consultation with Centex and its advisors, to respond promptly to
all such comments of, and requests by, the SEC and to cause the Proxy Statement
to be mailed to the holders of the Common Stock entitled to vote at the
Stockholders Meeting promptly upon the resolution of all such comments and
requests or at such other time agreed to by the parties hereto.
(b) The Company agrees promptly to furnish to Centex all copies of
written communications (and summaries of the substance of all oral
communications) received by it, or any of its affiliates or representatives
from, or delivered by any of its affiliates or representatives to, any federal,
state or local or international court, commission, governmental body, agency,
authority, tribunal, board or other
-7-
governmental entity (each a "Governmental Entity") in respect of the
transactions contemplated hereby.
SECTION 3.3. Reasonable Best Efforts. Upon the terms and subject to the
conditions set forth in this Agreement, each of the parties hereto shall use its
reasonable best efforts to take, or cause to be taken, all actions, and to do,
or cause to be done, and to assist and cooperate with the other parties in
doing, all things necessary, proper or advisable to obtain the adoption of this
Agreement by the stockholders of the Company as contemplated by Sections 4.1(a)
and 4.2(a) and to consummate as soon as practicable following such approval, the
Merger and the other transactions contemplated by this Agreement and the
Distribution Agreement, including, but not limited to (a) the obtaining of all
necessary actions, waivers, consents and approvals from all Governmental
Entities and the making of all necessary registrations and filings (including
filings with the SEC and all other Governmental Entities) and the taking of all
reasonable steps as may be necessary to obtain an approval or waiver from, or to
avoid an action or proceeding by, any Governmental Entity, (b) the obtaining of
all necessary consents, approvals or waivers from third parties, (c) the
defending of any lawsuits or other legal proceedings, whether judicial or
administrative, challenging this Agreement or the Distribution Agreement or the
consummation of the transactions contemplated hereby or thereby, including
seeking to have any stay or temporary restraining order entered by any court or
other Governmental Entity with respect to the Merger, this Agreement or the
Distribution Agreement vacated or reversed, (d) the execution and delivery of
any additional instruments necessary to consummate the transactions contemplated
by this Agreement and the Distribution Agreement and (e) causing all conditions
to the parties' obligations to consummate (i) the Merger set forth in Article IV
of this Agreement and (ii) the Distribution as set forth in Section 2.1(b) of
the Distribution Agreement to be satisfied. The Company and Centex, upon the
other's request, shall provide all such information reasonably necessary to
accomplish the foregoing concerning the party's business and affairs to the
other party.
SECTION 3.4. Representations and Warranties of the Company. The Company
hereby represents and warrants to Centex and Merger Sub that:
(a) the Special Committee has determined that this Agreement and the
Merger are fair to, and in the best interests of, the Company and its
stockholders (other than Centex and Merger Sub); and the Board of Directors of
the Company has, based in part on the determination of the Special Committee
referred to above, (i) determined that this Agreement and the Merger are fair
to, and in the best interests of, the Company and its stockholders, (ii)
approved this Agreement and, subject to obtaining the approval of the
stockholders of the Company as required under applicable law, the Merger, and
(iii) declared this Agreement to be advisable;
(b) the Proxy Statement, the form of proxy and any other solicitation
material used in connection therewith and any oral solicitations of proxies made
by the Company shall not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements made, in the
light of the
-8-
circumstances under which they were made, not misleading or omit any statement
necessary to correct any statement in any earlier communication with respect to
any solicitation of a proxy for any of the matters to be voted upon at the
Stockholders Meeting which has become false or misleading, except that no
representation or warranty is made by the Company with respect to information
relating to Centex or Merger Sub that is provided by Centex in writing
specifically for inclusion in the Proxy Statement or any such other solicitation
materials or oral solicitations;
(c) this Agreement has been duly executed and delivered by the Company
and constitutes a valid and binding agreement of the Company, enforceable in
accordance with its terms, except insofar as enforcement may be limited by (i)
any bankruptcy, reorganization, insolvency, fraudulent conveyance or transfer,
moratorium or similar laws affecting creditors' rights generally and (ii)
general principles of equity (regardless of whether such is considered in a
proceeding at law or in equity); and
(d) subject to the changes in the Company's capitalization contemplated
by this Agreement, the authorized, issued and outstanding capitalization of the
Company is as follows:
(i) 50,000,000 authorized shares of Common Stock, of which
18,440,000 shares were outstanding at the close of business on July 18,
2003; and
(ii) 2,000,000 authorized shares of preferred stock, of which
no shares are outstanding on the date of this Agreement.
SECTION 3.5. Representations and Warranties of Centex and Merger Sub.
Centex and Merger Sub jointly and severally represent and warrant to the Company
that:
(a) this Agreement has been approved by the Board of Directors or a
duly authorized committee thereof of each of Centex and Merger Sub; no approval
by the shareholders of Centex is required for the consummation of the
transactions contemplated by this Agreement; and the sole stockholder of Merger
Sub has approved this Agreement and the Merger;
(b) this Agreement has been duly executed and delivered by Centex and
Merger Sub and constitutes a valid and binding agreement of each of them,
enforceable against Centex and Merger Sub in accordance with its terms, except
insofar as enforcement may be limited by (i) any bankruptcy, reorganization,
insolvency, fraudulent conveyance or transfer, moratorium or similar laws
affecting creditors' rights generally and (ii) general principles of equity
(regardless of whether such is considered in a proceeding at law or in equity);
(c) Centex owns beneficially and of record all outstanding capital
stock of Merger Sub free and clear of any claims, liens or encumbrances and no
other
-9-
person holds any capital stock of Merger Sub nor has any right to acquire any
interest in Merger Sub;
(d) Centex beneficially owns an aggregate of 11,962,304 shares of
Common Stock free and clear of any claims, liens or encumbrances;
(e) immediately prior to the Effective Time, all of the Contributed
Shares shall be owned beneficially and of record by Merger Sub free and clear of
any claims, liens or encumbrances;
(f) Merger Sub was formed by Centex solely for the purposes of
effectuating the Merger upon the terms and subject to the conditions of this
Agreement, and Merger Sub has no liabilities, commitments or obligations of any
kind (known or unknown, fixed or contingent) other than the obligations set
forth in or arising from this Agreement and has not entered into any contracts,
agreements, commitments or arrangements other than this Agreement; and
(g) the information provided to the Company in writing specifically for
inclusion in the Proxy Statement or other solicitation materials by Centex or
the Merger Sub shall not contain any untrue statement of material fact or omit
to state a material fact necessary in order to make the statements made, in the
light of the circumstances under which they were made, not misleading.
ARTICLE IV
CONDITIONS TO THE MERGER
SECTION 4.1. Conditions to the Obligations of the Company. The
obligations of the Company to consummate the Merger are subject to the
satisfaction (or waiver by the Company, except that the condition set forth in
Section 4.1(a) may not be waived) of the following conditions:
(a) a proposal to adopt this Agreement shall have been approved by the
holders of (i) a majority of the shares of Common Stock issued and outstanding
and entitled to vote thereon and (ii) a majority of the shares of Common Stock
(other than shares held directly or indirectly by Centex or Merger Sub) present
in person or by proxy at the Stockholders Meeting and voting on such proposal;
(b) all actions by or in respect of or filings with any Governmental
Entity required to permit the consummation of the Merger shall have been
obtained, except those that would not reasonably be expected to have a material
adverse effect on any party's ability to consummate the transactions
contemplated by this Agreement;
(c) the Distribution Agreement shall be in full force and effect;
-10-
(d) prior to the Effective Time, the Board of Directors of Centex shall
have declared the Distribution (subject to the prior consummation of the
Reclassification (as defined in the Distribution Agreement)); and
(e) all conditions to the obligations of CXP to pay the Cash Dividend
shall have been satisfied or waived by CXP.
SECTION 4.2. Conditions to the Obligations of Centex and Merger Sub.
The obligations of Centex and Merger Sub to consummate the Merger are subject to
the satisfaction (or waiver by Centex, except that the condition set forth in
Section 4.2(a) may not be waived) of the following conditions:
(a) a proposal to adopt this Agreement and approve the Merger shall
have been approved by the holders of (i) a majority of the shares of Common
Stock issued and outstanding and entitled to vote thereon and (ii) a majority of
the shares of Common Stock (other than shares held directly or indirectly by
Centex or Merger Sub) present in person or by proxy at the Stockholders Meeting
and voting on such proposal;
(b) all actions by or in respect of or filings with any Governmental
Entity required to permit the consummation of the Merger shall have been
obtained, except those that would not reasonably be expected to have a material
adverse effect on any party's ability to consummate the transactions
contemplated by this Agreement;
(c) the Distribution Agreement shall be in full force and effect;
(d) immediately prior to the Effective Time, all the conditions to
declaration of the Distribution and the making of the Distribution set forth in
the Distribution Agreement, other than the prior consummation of the Merger,
shall have been satisfied; and
(e) prior to the Effective Time, the Company shall have declared and
paid the Cash Dividend.
ARTICLE V
TERMINATION
SECTION 5.1. Termination
(a) This Agreement may be terminated and the Merger may be abandoned at
any time prior to the Effective Time (notwithstanding any approval of this
Agreement by the stockholders of the Company):
(i) by mutual written consent of the Company and Centex;
-11-
(ii) by either the Company or Centex, if there shall be any
law or regulation that makes consummation of the Merger or the
Distribution illegal or otherwise prohibited or if there shall be
entered any judgment, injunction, order or decree enjoining the Company
or Merger Sub from consummating the Merger or enjoining Centex from
consummating the Distribution and, in either case, such judgment,
injunction, order or decree shall have become final and nonappealable;
(iii) by either the Company or Centex if, after a vote on the
matter by the Company's stockholders at the Stockholders Meeting, the
condition set forth in Sections 4.1(a) and 4.2(a) shall not be
satisfied; or
(iv) by either the Company or Centex, if the Merger is not
consummated by January 30, 2004; provided that if the Stockholders
Meeting shall have been held and the conditions set forth in Section
4.1(a) and 4.2(a) shall have been satisfied by January 30, 2004, but
the Merger shall not have been consummated by such date, then the time
period set forth in this clause (iv) shall be extended to the date that
is 30 days after the date of the Stockholders Meeting (or such longer
period as is agreed by the parties).
(b) This Agreement shall terminate automatically without any action on
the part of the Company, Centex or Merger Sub in the event that the Distribution
Agreement is terminated in accordance with its terms.
SECTION 5.2. Effect of Termination. If this Agreement is terminated
pursuant to Section 5.1, this Agreement shall become void and of no effect with
no liability on the part of any party hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Notices. All notices and other communications hereunder
shall be in writing and hand delivered or mailed by registered or certified mail
(return receipt requested) or sent by any means of facsimile or electronic
message transmission with delivery confirmed (by voice or otherwise), or by
overnight courier to the parties at the following addresses (or at such other
addresses for a party as shall be specified by like notice) and will be deemed
given on the date on which such notice is received:
If to Centex or Merger Sub:
c/o Centex Corporation
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Attention: Chief Executive Officer
-12-
with a copy to:
Xxxxx Xxxxx L.L.P.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx
If to the Company:
Centex Construction Products, Inc.
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Attention: Chief Operating Officer
and:
The Special Committee of the Board of Directors
c/o The Secretary of the Company
Centex Construction Products, Inc.
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
with a copy to:
Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Fax No.: (000) 000-0000
and
Attention: Xxxxxxx X. Boeing
Fax No.: (000) 000-0000
SECTION 6.2. Defined Terms. The following terms have the meanings
assigned to them in the provisions of this Agreement referred to in the table
below:
Term Section
---- -------
Additional Shares Recitals
Agreement Preamble
Authorized Capital Increase Proposal Section 3.1
Centex Preamble
Certificate of Merger Section 1.1(b)
-00-
Xxxx Xxxxxxx
---- -------
Class B Common Stock Recitals
Common Stock Recitals
Company Preamble
Contributed Shares Recitals
Distributable Shares Recitals
Distribution Recitals
Distribution Agreement Recitals
DGCL Recitals
Effective Time Section 1.1(b)
Governance Proposals Section 2.1(b)
Governmental Entity Section 3.2(b)
Merger Recitals
Merger Sub Preamble
Merger Sub Common Stock Recitals
Proxy Statement Section 3.2(a)
Special Committee Recitals
Special Meeting Proposal Section 3.1
Staggered Board Proposal Section 3.1
Stockholder Rights Plan Proposal Section 3.1
Stockholders Meeting Section 3.1
Supermajority Voting Proposal Section 3.1
Surviving Corporation Section 1.1(a)
Surviving Corporation Bylaws Section 2.2(c)
Surviving Corporation Certificate of
Incorporation Section 2.1(c)
Term of Office Classes Section 2.3(a)
Voting Constituency Classes Section 2.3(a)
Written Consent Proposal Section 3.1
SECTION 6.3. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other party hereto, except that Merger Sub may at any
time prior to the mailing of the Proxy Statement assign all of its rights and
obligations under this Agreement to any other wholly owned subsidiary of Centex,
and in the case of such assignment, the parties hereto agree to amend this
Agreement to reflect such assignment.
SECTION 6.4. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of
Delaware.
SECTION 6.5. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by the other party hereto.
-14-
SECTION 6.6. Amendments. Any provision of this Agreement may be amended
or waived prior to the Effective Time (whether before or after approval of
matters presented in connection with the Merger by the stockholders of the
Company) if, and only if, such amendment or waiver is in writing and signed, in
the case of an amendment, by the Company, Centex and Merger Sub or, in the case
of a waiver, by the party against whom such waiver is to be effective; provided
that after the adoption of this Agreement by the stockholders of the Company, no
amendment shall become effective without a vote of the stockholders approving
such amendment if such stockholder vote is required by applicable law in order
to effect the proposed amendment.
-15-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CENTEX CONSTRUCTION PRODUCTS, INC.
By: /s/ XXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------
Title: Executive Vice President & COO
--------------------------------
CENTEX CORPORATION
By: /s/ XXXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
---------------------------------
Title: Chairman & CEO
--------------------------------
ARG MERGER CORPORATION
By: /s/ XXXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
---------------------------------
Title: President
--------------------------------
-16-
EXHIBIT A-1
RESTATED CERTIFICATE OF INCORPORATION
OF
_____________________________, INC.(1)
The undersigned, being the President of Centex Construction Products,
Inc., a
Delaware corporation, hereby certifies that:
1. The name of the corporation is ___________________________, INC.(1)
(the "Corporation"). The name under which the Corporation was originally
incorporated is Centex Construction Products, Inc. and the date of filing the
original Certificate of Incorporation of the Corporation with the Secretary of
State of the State of
Delaware was January 27, 1994.
2. This Restated Certificate of Incorporation amends and restates the
provisions of the Certificate of Incorporation of the Corporation and was duly
adopted in accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of
Delaware.
3. The Restated Certificate of Incorporation of the Corporation, as
restated and amended hereby, shall, upon its filing with the Secretary of State
of the State of
Delaware, read in its entirety as follows:
ARTICLE I
The name of the Corporation is _______________, Inc.(1)
ARTICLE II
The address of the registered office of the Corporation in the State of
Delaware is 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxx xx Xxxxxxxxxx, Xxxxxx of New
Castle, Delaware. The name of the registered agent of the Corporation at such
address is Corporation Service Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the
"DGCL"), and the Corporation shall have perpetual existence.
----------
(1) To be specified by CXP prior to the filing of the proxy statement.
A-1 - 1
ARTICLE IV
The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is 105,000,000 shares, consisting of
(i) 5,000,000 shares of Preferred Stock, par value $.01 per share ("Preferred
Stock"), (ii) 80,000,000 shares of Common Stock, par value $.01 per share
("Common Stock"), and (iii) 20,000,000 shares of Class B Common Stock, par value
$.01 per share ("Class B Common Stock" and, together with the Common Stock, the
"Corporation Common Stock").
The powers, preferences and rights of each class of capital stock, and
the qualifications, limitations and restrictions thereof, are as follows:
A. Preferred Stock.
Shares of Preferred Stock may be issued in such series as may from time
to time be determined by the Board of Directors. Prior to the issuance of a
series, the Board of Directors by resolution shall designate the series to
distinguish it from any other classes or series of capital stock of the
Corporation, shall specify the number of shares to be included in the series and
shall fix the powers, preferences and relative, participating, optional or other
special rights of the series, and the qualifications, limitations or
restrictions thereof. Without limiting the generality of the foregoing, any such
resolution of the Board of Directors may set forth the following characteristics
of the series:
(i) the designation of, and the number of shares of Preferred
Stock which shall constitute, the series, which number may be increased
(except as otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then outstanding) from time
to time by action of the Board of Directors;
(ii) the rate or rates and the date or dates at which (or the
method of determination thereof), and the terms and conditions upon
which, dividends, if any, on shares of the series shall be paid, the
nature of any preferences or the relative rights of priority of such
dividends to the dividends payable on any other class or classes of
capital stock of the Corporation or on any series of Preferred Stock of
the Corporation, and whether such dividends shall be cumulative;
(iii) whether shares of the series shall be convertible into
or exchangeable for shares of capital stock or other securities or
property of the Corporation or of any other corporation or entity, and,
if so, the terms and conditions of such conversion or exchange,
including any provisions for the adjustment of the conversion or
exchange rate upon the occurrence of such events as the Board of
Directors shall determine;
(iv) whether shares of the series shall be redeemable, and, if
so, the terms and conditions of such redemption, including the date or
dates upon or after which they shall be redeemable and the amount and
type of consideration payable
A-1 - 2
upon redemption, which amount may vary under different conditions and
at different redemption dates;
(v) whether shares of the series shall have a sinking fund or
redemption or purchase account for the redemption or purchase of shares
of the series, and if so, the terms, conditions and amount of such
sinking fund or redemption or purchase account;
(vi) the rights of the holders of shares of the series upon
voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding up of the
Corporation;
(vii) whether shares of the series shall have voting rights in
addition to the voting rights provided by law, which may include (a)
the right to more or less than one vote per share on any or all matters
submitted to a vote of the stockholders of the Corporation and (b) the
right to vote, as a series by itself or together with any other series
of Preferred Stock or together with all series of Preferred Stock as a
class or with the Common Stock as a class, upon such matters, under
such circumstances and upon such conditions as the Board of Directors
may fix (including, but not limited to, the right, voting as a series
by itself or together with any other series of Preferred Stock or
together with all series of Preferred Stock as a class, to elect one or
more directors of the Corporation in the event there shall have been a
default in the payment of dividends on any series of Preferred Stock or
under such other circumstances and upon such other conditions as the
Board of Directors may determine); and
(viii) any other powers, preferences and relative,
participating, optional or other rights, and the qualifications,
limitations or restrictions thereof.
Subject to the express terms of any series of Preferred Stock outstanding at any
time, the vote or consent of the holders of Preferred Stock of any series shall
not be required for the issuance of any other series of Preferred Stock,
regardless of whether the powers, preferences and rights of such other series
shall be fixed by the Board of Directors as senior to, on a parity with or
junior to the powers, preferences and rights of such outstanding series.
B. Common Stock. The Common Stock and the Class B Common Stock shall be
identical in all respects, except as otherwise provided by law or expressly
provided herein. The relative powers, preferences, rights, qualifications,
limitations and restrictions of the shares of Common Stock and Class B Common
Stock shall be as follows:
(1) Cash Dividends. Subject to the rights, if any, of the holders of
Preferred Stock with respect to the payment of dividends and the requirements,
if any, with respect to the setting aside of sums as sinking funds or redemption
or purchase accounts for the benefit of such holders and subject to any other
conditions that may be
A-1 - 3
fixed in accordance with the provisions of paragraph A of this Article IV, then,
but not otherwise, the holders of Common Stock and Class B Common Stock shall be
entitled to receive such dividends, if any, as may be declared from time to time
by the Board of Directors out of assets which are legally available therefor;
provided, that whenever a cash dividend is paid on any Corporation Common Stock,
the same amount shall be paid in respect of each outstanding share of Common
Stock and Class B Common Stock.
(2) Stock Dividends. If at any time a dividend is to be paid in shares
of Common Stock or shares of Class B Common Stock (a "stock dividend"), such
stock dividend may be declared and paid only as follows: only Common Stock may
be paid to holders of Common Stock and only Class B Common Stock may be paid to
holders of Class B Common Stock. Whenever a stock dividend is paid on any
Corporation Common Stock, the same number of shares shall be paid in respect of
each outstanding share of Common Stock and Class B Common Stock.
(3) Property Dividends. If at any time a dividend is to be paid in
rights to purchase shares of the capital stock of the Corporation (a "rights
dividend"), then: (i) if the rights dividend is of rights that entitle the
holder thereof to purchase shares of Common Stock (or shares of capital stock of
the Corporation having voting rights equivalent to those of the Common Stock
("Equivalent Shares")) or Class B Common Stock (or shares of capital stock of
the Corporation having voting rights equivalent to those of the Class B Common
Stock ("Equivalent Class B Shares")) then only rights to acquire Common Stock or
Equivalent Shares may be paid to holders of Common Stock and only rights to
acquire Class B Common Stock or Equivalent Class B Shares may be paid to holders
of Class B Common Stock; and (ii) if the rights dividend is of rights that
entitle the holder thereof to purchase shares of capital stock of the
Corporation other than Common Stock (or Equivalent Shares) or Class B Common
Stock (or Equivalent Class B Shares) then the Board of Directors of the
Corporation may pay such dividend of rights to the holders of Common Stock and
Class B Common Stock in such manner as the Board of Directors may determine.
Whenever any rights dividend or dividend in the form of securities or other
property (other than a cash dividend or stock dividend) is paid on any
Corporation Common Stock, the same number or amount and kind of rights,
securities or other property shall be paid in respect of each outstanding share
of Common Stock and Class B Common Stock.
(4) Stock Subdivisions and Combinations. The Corporation shall not
subdivide, reclassify or combine stock of any class of Corporation Common Stock
without at the same time making a proportionate subdivision, reclassification or
combination of shares of the other class.
(5) Voting. Voting power shall be divided between the classes of
Corporation Common Stock as follows:
(i) Subject to Section B.(5)(ii) of this Article IV, in the
election of directors, holders of shares of Class B Common Stock,
voting separately as a class (the "Voting B Shares"), shall be entitled
to elect that
A-1 - 4
number of directors which constitutes 85% of the authorized number of
members of the Board of Directors (or, if 85% of the authorized number
of members of the Board of Directors is not a whole number, then the
nearest higher whole number) (the "Voting B Share Directors"). The
initial Voting B Share Directors shall be designated by a majority of
the directors of the Corporation as of the effectiveness of this
Restated Certificate of Incorporation, and the holders of Voting B
Shares, voting separately as a class, shall be entitled to vote for the
election or replacement of such Voting B Share Directors at the next
annual meeting of stockholders. Each share of Class B Common Stock
shall have one vote in the election of the Voting B Share Directors.
Subject to Section B.(5)(ii) of this Article IV, in the election of
directors, holders of shares of Common Stock (the "Voting Shares"),
shall be entitled to elect the remaining director or directors, if any
(the "Voting Share Directors"). The initial Voting Share Director, if
any, shall be designated by a majority of the directors of the
Corporation as of the effectiveness of this Restated Certificate of
Incorporation, and the holders of Voting Shares, voting separately as a
class, shall be entitled to vote for the election or replacement of
such Voting Share Director at the next annual meeting of stockholders.
Each share of Common Stock shall have one vote in the election of the
Voting Share Directors. For purposes of Sections B.(5)(i), (ii) and
(iii) of this Article IV, references to the authorized number of
members of the Board of Directors shall not include any directors which
the holders of any shares of a series of Preferred Stock have the right
to elect voting separately as one or more series.
(ii) For purposes of this Section B.(5)(ii) of this Article
IV, "Special Voting Rights" means the different voting rights of the
holders of Common Stock, on the one hand, and the holders of Class B
Common Stock, on the other hand, with respect to the election of the
applicable percentages of the authorized number of members of the Board
of Directors as described in Section B.(5)(i) of this Article IV. At
any time after _____ __, 2005(2), if approved by the Board of
Directors, at any annual or special meeting of stockholders of the
Corporation, the holders of at least 66 2/3% of the outstanding shares
of the Common Stock and Class B Common Stock, voting together as a
class, may vote to eliminate the Special Voting Rights (the
"Elimination Vote"), in which case the Special Voting Rights provided
for in Section B.(5)(i) of this Article IV shall have no further force
or effect, and thereafter holders of the Corporation Common Stock shall
have equal voting rights in all respects, except as otherwise provided
by law, and shall be entitled to elect the total authorized number of
members of the Board of Directors voting together as a single class,
with each share of Corporation Common Stock having one vote.
----------
(2) The second anniversary of the spin-off.
A-1 - 5
(iii) Unless the Special Voting Rights have been eliminated in
accordance with Section B.(5)(ii) of this Article IV, all newly-created
directorships resulting from an increase in the authorized number of
directors shall be allocated between Voting Share Directors and Voting
B Share Directors such that at all times the number of Class B Common
Stock directorships shall be 85% of the authorized number of members of
the Board of Directors (or if such 85% is not a whole number, then the
nearest higher whole number) and the remaining directorships shall be
Common Stock directorships.
(iv) Except as otherwise specified herein or required by law,
the holders of Common Stock and Class B Common Stock shall in all
matters not otherwise specified in Section B.(5)(i) of this Article IV
vote together as one class, with each share of Common Stock and Class B
Common Stock having one vote.
(v) Notwithstanding anything to the contrary contained in
Section B.(5)(i), (ii), (iii) or (iv) of this Article IV, for so long
as any person or entity or group of persons or entities acting in
concert beneficially own 15% or more of the outstanding shares of Class
B Common Stock, then in any election of directors or other exercise of
voting rights with respect to the election or removal of directors,
such person, entity or group shall only be entitled to vote (or
otherwise exercise voting rights with respect to) a number of shares of
Class B Common Stock that constitutes a percentage of the total number
of shares of Class B Common Stock then outstanding which is less than
or equal to such person, entity or group's Entitled Voting Percentage.
For the purposes hereof, a person, entity or group's "Entitled Voting
Percentage" at any time shall mean the percentage of the then
outstanding shares of Common Stock beneficially owned by such person,
entity or group at such time. For purposes of this Section B.(5)(v), a
"beneficial owner" of Common Stock includes any person or entity or
group of persons or entities who, directly or indirectly, including
through any contract, arrangement, understanding, relationship or
otherwise, written or oral, formal or informal, control the voting
power (which includes the power to vote or to direct the voting) of
such Common Stock within the meaning of Rule 13d-3(a)(1) under the
Securities Exchange Act of 1934, as amended.
(6) Merger or Consolidation. The Corporation shall not enter into any
consolidation of the Corporation with one or more other corporations, a merger
of the Corporation with another corporation, a reorganization of the Corporation
or other similar combination of the Corporation with one or more third parties,
unless each holder of a share of Common Stock or Class B Common Stock is
entitled to receive with respect to such share the same kind and amount of
shares of stock and other securities and property (including cash) receivable
upon such consolidation, merger, reorganization or other combination as each
other holder of a share of Common Stock and Class B Common
A-1 - 6
Stock; provided that, in any such transaction consummated prior to the
Elimination Vote, the holders of shares of Common Stock and Class B Common Stock
may each receive different kinds of shares of stock that differ to the extent
and only to the extent that the Board of Directors determines in good faith that
such shares differ with respect to the rights of holders of such shares to
substantially the same extent as the Common Stock and the Class B Common Stock
differ as provided herein.
(7) Liquidation. In the event of any liquidation, dissolution or
winding up of the Corporation, the holders of the Common Stock and Class B
Common Stock shall participate equally per share in any distribution to
stockholders, without distinction between classes.
ARTICLE V
A. General. The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors. The Board of
Directors shall have concurrent power with the stockholders to make, alter,
amend, change, add to or repeal the Bylaws of the Corporation. In furtherance
and not in limitation of the powers conferred upon the Board of Directors by the
DGCL and this Restated Certificate of Incorporation, the Board of Directors is
hereby expressly empowered to exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation, subject to the provisions
of the DGCL, this Restated Certificate of Incorporation and any bylaws adopted
by the stockholders of the Corporation; provided, however, that no bylaws
adopted by the stockholders of the Corporation shall invalidate any prior act of
the Board of Directors that would have been valid if such bylaws had not been
adopted.
B. Number and Class of Directors.
(1) Number of Directors. The number of directors that shall constitute
the entire Board of Directors of the Corporation shall be fixed from time to
time exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the Board of Directors; provided, however, (i) that in no event
shall the number of directors constituting the entire Board of Directors be less
than three nor more than fifteen (provided, however, that until such time as an
Elimination Vote occurs, the Board of Directors shall not reduce the number of
directors to a number less than seven) and (ii) no decrease in the number of
directors shall have the effect of shortening the term of any incumbent
director.
(2) Classified Board. The directors, other than those who may be
elected by the holders of any series of Preferred Stock, shall be divided into
three classes: Class I, Class II and Class III. As of the effectiveness of this
Restated Certificate of Incorporation, the Board of Directors shall assign each
person who is serving as a director to one of such classes, as determined in the
sole discretion of the Board of Directors; provided, however, that the initial
Voting Share Director shall be assigned to Class I. Such classes shall be as
nearly equal in number of directors as possible. Each director shall serve for a
term ending on the third annual meeting of stockholders following the annual
meeting of stockholders at which that director was elected; provided, however,
that the directors first designated as Class I directors shall serve for a
A-1 - 7
term expiring at the annual meeting of stockholders next following the date of
their designation as Class I directors, the directors first designated as Class
II directors shall serve for a term expiring at the second annual meeting of
stockholders next following the date of their designation as Class II directors,
and the directors first designated as Class III directors shall serve for a term
expiring at the third annual meeting of stockholders next following the date of
their designation as Class III directors. Each director shall hold office until
the annual meeting of stockholders at which his term expires and, the foregoing
notwithstanding, shall serve until his successor shall have been duly elected
and qualified or until his earlier death, resignation or removal.
At each annual election, the directors chosen to succeed those
whose terms then expire shall be of the same class as the directors they
succeed, unless, by reason of any intervening changes in the authorized number
of directors, the Board of Directors shall have designated one or more
directorships whose term then expires as directorships of another class in order
to more nearly achieve equality of number of directors among the classes.
In the event of any change in the authorized number of
directors, each director then continuing to serve as such shall nevertheless
continue as a director of the class of which he is a member until the expiration
of his current term, or his prior death, resignation or removal. The Board of
Directors shall specify the class to which a newly created directorship shall be
allocated.
C. Manner of Election. The election of directors at any annual
or special meeting of the stockholders of the Corporation need not be by written
ballot unless the Bylaws of the Corporation so provide.
D. Vacancies.
(1) Any vacancy in the office of a director created by the death,
resignation, retirement, disqualification, removal from office of a director or
other cause, elected by (or appointed on behalf of) the holders of the Voting B
Shares, on the one hand, or the holders of the Voting Shares, on the other hand,
as the case may be, shall be filled by the vote of the majority of the directors
(or the sole remaining director) elected by (or appointed on behalf of) such
holders of Voting B Shares, on the one hand, or Voting Shares, on the other
hand, as the case may be, unless there are no such directors in such class, in
which case such vacancy shall be filled by the holders of the Voting B Shares or
Voting Shares, respectively, unless the Elimination Vote shall have occurred, in
which case such vacancy shall be filled by the vote of the majority of the
directors (or the sole remaining director) then in office, even if less than a
quorum, regardless of any quorum requirements set out in the Bylaws. Any
director elected to fill a vacancy not resulting from an increase in the number
of directors shall have the same term as that of his predecessor.
(2) Unless the Elimination Vote shall have occurred, all newly-created
directorships resulting from an increase in the authorized number of directors
shall be
A-1 - 8
allocated pursuant to Section B(5) of Article IV. Once such newly-created
directorships have been allocated as Voting Share Directors or Voting B Share
Directors, such newly-created directorships shall be filled by the vote of the
majority of the directors in such class (or the sole remaining director in such
class), as the case may be, unless there are no such directors in such class, in
which case such vacancy shall be filled by the holders of the Voting Shares or
Voting B Shares, respectively, unless the Elimination Vote shall have occurred,
in which case such vacancy shall be filled by the vote of the majority of the
directors (or the sole remaining director) then in office, even if less than a
quorum, regardless of any quorum requirements set out in the Bylaws.
ARTICLE VI
A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, as the same
exists or hereafter may be amended or replaced, or (iv) for any transaction from
which the director derived any improper personal benefit. If the DGCL is amended
after the filing of this Restated Certificate of Incorporation to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the DGCL as so amended.
Any repeal or modification of this Article VI 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.
ARTICLE VII
A. Indemnification. Each person who was or is made 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 (a
"Proceeding"), by reason of the fact that he or she is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise (an "Indemnitee"), shall be indemnified and
held harmless by the Corporation to the fullest extent permitted by applicable
law in effect on the date of the filing of this Restated Certificate of
Incorporation, and to such greater extent as applicable law may thereafter
permit, against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement incurred by such Indemnitee in connection with such a
Proceeding, and such right of indemnification shall continue with respect to an
Indemnitee who has ceased to be such a director or officer and shall inure to
the benefit of his or her heirs, executors and administrators. The rights of an
Indemnitee under the immediately preceding sentence shall include, but not be
limited to, the right to be indemnified to the fullest extent permitted by
Section 145(b) of the DGCL in the case of Proceedings by or in the right of
A-1 - 9
the Corporation and to the fullest extent permitted by Section 145(a) of the
DGCL in the case of all other Proceedings.
B. Advancement of Expenses. An Indemnitee shall be entitled to
the payment of expenses (including attorneys' fees) incurred in defending any
Proceeding in advance of the final disposition thereof in accordance with the
provisions set forth in the Bylaws of the Corporation or, if no provisions
relating to the advancement of expenses are set forth therein, in accordance
with such terms and conditions as the Board of Directors deems appropriate.
C. Determination of Entitlement to Indemnification. A
determination as to whether an Indemnitee is entitled to indemnification in
respect of any expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement incurred by such Indemnitee in connection with a Proceeding
shall be made in accordance with Section 145(d) of the DGCL and the provisions
set forth in the Bylaws of the Corporation.
D. Non-Exclusivity. The rights conferred by this Article VII
shall not be exclusive of any other rights which an Indemnitee or any other
person may now or hereafter have under this Restated Certificate of
Incorporation or any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
ARTICLE VIII
No stockholder of the Corporation shall by reason of his or
her holding shares of any class or series of its capital stock have any
preemptive or preferential right to purchase or subscribe for or otherwise
acquire or receive any shares of any class or series of capital stock issued by
the Corporation, whether now or hereafter authorized, or any shares of any class
or series of capital stock of the Corporation now or hereafter acquired by the
Corporation as treasury stock and subsequently reissued or sold or otherwise
disposed of, or any notes, debentures, bonds or other securities convertible
into, or any warrants, rights or options exercisable for, any shares of any
class or series of capital stock of the Corporation, whether or not the issuance
of any such shares or such notes, debentures, bonds or other securities or
warrants, rights or options would adversely affect the dividend, voting or any
other rights of such stockholder.
ARTICLE IX
Special meetings of the stockholders of the Corporation may be
called only by the Chairman, or in his absence by the President, by the Board of
Directors, or by the Secretary at the request in writing of a majority of the
Board of Directors and may not be called by the stockholders of the Corporation.
A-1 - 10
ARTICLE X
Any action required to be taken or which may be taken by the
holders of the Corporation Common Stock must be effected at a duly called annual
or special meeting of such holders and may not be taken by written consent in
lieu of a meeting.
ARTICLE XI
The Board of Directors shall have the power to adopt, alter,
amend and repeal the Bylaws of the Corporation, in any manner not inconsistent
with the laws of the State of Delaware, subject to the power of the stockholders
to adopt, amend or repeal the Bylaws.
ARTICLE XII
Notwithstanding anything else contained in this Restated
Certificate of Incorporation or the Bylaws to the contrary, the affirmative vote
of the holders of record of at least 66 2/3% of the combined voting power of all
of the outstanding stock of the Corporation entitled to vote in respect thereof,
voting together as a single class, shall be required (A) to alter, amend,
rescind or repeal Section B(5)(v) of Article IV, Article V, Article IX, Article
X, Article XI or this Article XII of this Restated Certificate of Incorporation
or to adopt any provision inconsistent therewith or (B) in order for the
stockholders to adopt, alter, amend, rescind or repeal any Bylaws of the
Corporation.
ARTICLE XIII
The Corporation reserves the right to amend, alter, change,
rescind or repeal any provision contained in this Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon the stockholders herein are granted subject to this
reservation.
X-0 - 00
XXXXXXX X-0
XXXXXXXX CERTIFICATE OF INCORPORATION
OF
_____________________________, INC.(1)
The undersigned, being the President of Centex Construction
Products, Inc., a Delaware corporation, hereby certifies that:
1. The name of the corporation is ___________________________, INC.(1)
(the "Corporation"). The name under which the Corporation was originally
incorporated is Centex Construction Products, Inc. and the date of filing the
original Certificate of Incorporation of the Corporation with the Secretary of
State of the State of Delaware was January 27, 1994.
2. This Restated Certificate of Incorporation amends and restates the
provisions of the Certificate of Incorporation of the Corporation and was duly
adopted in accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
3. The Restated Certificate of Incorporation of the Corporation, as
restated and amended hereby, shall, upon its filing with the Secretary of State
of the State of Delaware, read in its entirety as follows:
ARTICLE I
The name of the Corporation is _______________, Inc.(1)
ARTICLE II
The address of the registered office of the Corporation in the
State of Delaware is 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxx xx Xxxxxxxxxx,
Xxxxxx of New Castle, Delaware. The name of the registered agent of the
Corporation at such address is Corporation Service Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware
Code (the "DGCL"), and the Corporation shall have perpetual existence.
----------
(1) To be specified by CXP prior to the filing of the proxy statement.
A-2 - 1
ARTICLE IV
[The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is 105,000,000 shares,
consisting of (i) 5,000,000 shares of Preferred Stock, par value $.01 per share
("Preferred Stock"), (ii) 80,000,000 shares of Common Stock, par value $.01 per
share ("Common Stock"), and (iii) 20,000,000 shares of Class B Common Stock, par
value $.01 per share ("Class B Common Stock" and, together with the Common
Stock, the "Corporation Common Stock").](2)
The powers, preferences and rights of each class of capital
stock, and the qualifications, limitations and restrictions thereof, are as
follows:
A. Preferred Stock.
Shares of Preferred Stock may be issued in such series as may
from time to time be determined by the Board of Directors. Prior to the issuance
of a series, the Board of Directors by resolution shall designate the series to
distinguish it from any other classes or series of capital stock of the
Corporation, shall specify the number of shares to be included in the series and
shall fix the powers, preferences and relative, participating, optional or other
special rights of the series, and the qualifications, limitations or
restrictions thereof. Without limiting the generality of the foregoing, any such
resolution of the Board of Directors may set forth the following characteristics
of the series:
(i) the designation of, and the number of shares of Preferred
Stock which shall constitute, the series, which number may be increased
(except as otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then outstanding) from time
to time by action of the Board of Directors;
(ii) the rate or rates and the date or dates at which (or the
method of determination thereof), and the terms and conditions upon
which, dividends, if any, on shares of the series shall be paid, the
nature of any preferences or the relative rights of priority of such
dividends to the dividends payable on any other class or classes of
capital stock of the Corporation or on any series of Preferred Stock of
the Corporation, and whether such dividends shall be cumulative;
(iii) whether shares of the series shall be convertible into
or exchangeable for shares of capital stock or other securities or
property of the Corporation or of any other corporation or entity, and,
if so, the terms and conditions of such conversion or exchange,
including any provisions for the
----------
(2) If the Authorized Capital Increase Proposal is not approved, then
this Article IV shall read as follows: "The total number of shares of all
classes of capital stock which the Corporation shall have authority to issue is
52,000,000 shares, consisting of (i) 2,000,000 shares of Preferred Stock, par
value $.01 per share ("Preferred Stock"), (ii) 40,780,000 shares of Common
Stock, par value $.01 per share ("Common Stock") and (iii) 9,220,000 shares of
Class B Common Stock, par value $.01 per share ("Class B Common Stock" and,
together with the Common Stock, the "Corporation Common Stock")."
A-2 - 2
adjustment of the conversion or exchange rate upon the occurrence of
such events as the Board of Directors shall determine;
(iv) whether shares of the series shall be redeemable, and, if
so, the terms and conditions of such redemption, including the date or
dates upon or after which they shall be redeemable and the amount and
type of consideration payable upon redemption, which amount may vary
under different conditions and at different redemption dates;
(v) whether shares of the series shall have a sinking fund or
redemption or purchase account for the redemption or purchase of shares
of the series, and if so, the terms, conditions and amount of such
sinking fund or redemption or purchase account;
(vi) the rights of the holders of shares of the series upon
voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding up of the
Corporation;
(vii) whether shares of the series shall have voting rights in
addition to the voting rights provided by law, which may include (a)
the right to more or less than one vote per share on any or all matters
submitted to a vote of the stockholders of the Corporation and (b) the
right to vote, as a series by itself or together with any other series
of Preferred Stock or together with all series of Preferred Stock as a
class or with the Common Stock as a class, upon such matters, under
such circumstances and upon such conditions as the Board of Directors
may fix (including, but not limited to, the right, voting as a series
by itself or together with any other series of Preferred Stock or
together with all series of Preferred Stock as a class, to elect one or
more directors of the Corporation in the event there shall have been a
default in the payment of dividends on any series of Preferred Stock or
under such other circumstances and upon such other conditions as the
Board of Directors may determine); and
(viii) any other powers, preferences and relative,
participating, optional or other rights, and the qualifications,
limitations or restrictions thereof.
Subject to the express terms of any series of Preferred Stock outstanding at any
time, the vote or consent of the holders of Preferred Stock of any series shall
not be required for the issuance of any other series of Preferred Stock,
regardless of whether the powers, preferences and rights of such other series
shall be fixed by the Board of Directors as senior to, on a parity with or
junior to the powers, preferences and rights of such outstanding series.
B. Common Stock. The Common Stock and the Class B Common Stock
shall be identical in all respects, except as otherwise provided by law or
expressly provided herein. The relative powers, preferences, rights,
qualifications, limitations and restrictions of the shares of Common Stock and
Class B Common Stock shall be as follows:
A-2 - 3
(1) Cash Dividends. Subject to the rights, if any, of the
holders of Preferred Stock with respect to the payment of dividends and the
requirements, if any, with respect to the setting aside of sums as sinking funds
or redemption or purchase accounts for the benefit of such holders and subject
to any other conditions that may be fixed in accordance with the provisions of
paragraph A of this Article IV, then, but not otherwise, the holders of Common
Stock and Class B Common Stock shall be entitled to receive such dividends, if
any, as may be declared from time to time by the Board of Directors out of
assets which are legally available therefor; provided, that whenever a cash
dividend is paid on any Corporation Common Stock, the same amount shall be paid
in respect of each outstanding share of Common Stock and Class B Common Stock.
(2) Stock Dividends. If at any time a dividend is to be paid
in shares of Common Stock or shares of Class B Common Stock (a "stock
dividend"), such stock dividend may be declared and paid only as follows: only
Common Stock may be paid to holders of Common Stock and only Class B Common
Stock may be paid to holders of Class B Common Stock. Whenever a stock dividend
is paid on any Corporation Common Stock, the same number of shares shall be paid
in respect of each outstanding share of Common Stock and Class B Common Stock.
(3) Property Dividends. If at any time a dividend is to be
paid in rights to purchase shares of the capital stock of the Corporation (a
"rights dividend"), then: (i) if the rights dividend is of rights that entitle
the holder thereof to purchase shares of Common Stock (or shares of capital
stock of the Corporation having voting rights equivalent to those of the Common
Stock ("Equivalent Shares")) or Class B Common Stock (or shares of capital stock
of the Corporation having voting rights equivalent to those of the Class B
Common Stock ("Equivalent Class B Shares")) then only rights to acquire Common
Stock or Equivalent Shares may be paid to holders of Common Stock and only
rights to acquire Class B Common Stock or Equivalent Class B Shares may be paid
to holders of Class B Common Stock; and (ii) if the rights dividend is of rights
that entitle the holder thereof to purchase shares of capital stock of the
Corporation other than Common Stock (or Equivalent Shares) or Class B Common
Stock (or Equivalent Class B Shares) then the Board of Directors of the
Corporation may pay such dividend of rights to the holders of Common Stock and
Class B Common Stock in such manner as the Board of Directors may determine.
Whenever any rights dividend or dividend in the form of securities or other
property (other than a cash dividend or stock dividend) is paid on any
Corporation Common Stock, the same number or amount and kind of rights,
securities or other property shall be paid in respect of each outstanding share
of Common Stock and Class B Common Stock.
(4) Stock Subdivisions and Combinations. The Corporation shall
not subdivide, reclassify or combine stock of any class of Corporation Common
Stock without at the same time making a proportionate subdivision,
reclassification or combination of shares of the other class.
A-2 - 4
(5) Voting. Voting power shall be divided between the classes
of Corporation Common Stock as follows:
(i) Subject to Section B.(5)(ii) of this Article IV, in the
election of directors, holders of shares of Class B Common Stock,
voting separately as a class (the "Voting B Shares"), shall be entitled
to elect that number of directors which constitutes 85% of the
authorized number of members of the Board of Directors (or, if 85% of
the authorized number of members of the Board of Directors is not a
whole number, then the nearest higher whole number) (the "Voting B
Share Directors"). The initial Voting B Share Directors shall be
designated by a majority of the directors of the Corporation as of the
effectiveness of this Restated Certificate of Incorporation, and the
holders of Voting B Shares, voting separately as a class, shall be
entitled to vote for the election or replacement of such Voting B Share
Directors at the next annual meeting of stockholders. Each share of
Class B Common Stock shall have one vote in the election of the Voting
B Share Directors. Subject to Section B.(5)(ii) of this Article IV, in
the election of directors, holders of shares of Common Stock (the
"Voting Shares"), shall be entitled to elect the remaining director or
directors, if any (the "Voting Share Directors"). The initial Voting
Share Director, if any, shall be designated by a majority of the
directors of the Corporation as of the effectiveness of this Restated
Certificate of Incorporation, and the holders of Voting Shares, voting
separately as a class, shall be entitled to vote for the election or
replacement of such Voting Share Director at the next annual meeting of
stockholders. Each share of Common Stock shall have one vote in the
election of the Voting Share Directors. For purposes of Sections
B.(5)(i), (ii) and (iii) of this Article IV, references to the
authorized number of members of the Board of Directors shall not
include any directors which the holders of any shares of a series of
Preferred Stock have the right to elect voting separately as one or
more series.
(ii) For purposes of this Section B.(5)(ii) of this Article
IV, "Special Voting Rights" means the different voting rights of the
holders of Common Stock, on the one hand, and the holders of Class B
Common Stock, on the other hand, with respect to the election of the
applicable percentages of the authorized number of members of the Board
of Directors as described in Section B.(5)(i) of this Article IV. At
any time after _____ __, 2005(3), if approved by the Board of
Directors, at any annual or special meeting of stockholders of the
Corporation, the holders of at least 66 2/3% of the outstanding shares
of the Common Stock and Class B Common Stock, voting together as a
class, may vote to eliminate the Special Voting Rights (the
"Elimination Vote"), in which case the Special Voting Rights provided
for in Section B.(5)(i) of this Article IV shall have no further force
or effect, and thereafter holders of the
----------
(3) The second anniversary of the spin-off.
A-2 - 5
Corporation Common Stock shall have equal voting rights in all
respects, except as otherwise provided by law, and shall be entitled to
elect the total authorized number of members of the Board of Directors
voting together as a single class, with each share of Corporation
Common Stock having one vote.
(iii) Unless the Special Voting Rights have been eliminated in
accordance with Section B.(5)(ii) of this Article IV, all newly-created
directorships resulting from an increase in the authorized number of
directors shall be allocated between Voting Share Directors and Voting
B Share Directors such that at all times the number of Class B Common
Stock directorships shall be 85% of the authorized number of members of
the Board of Directors (or if such 85% is not a whole number, then the
nearest higher whole number) and the remaining directorships shall be
Common Stock directorships.
(iv) Except as otherwise specified herein or required by law,
the holders of Common Stock and Class B Common Stock shall in all
matters not otherwise specified in Section B.(5)(i) of this Article IV
vote together as one class, with each share of Common Stock and Class B
Common Stock having one vote.
(v) Notwithstanding anything to the contrary contained in
Section B.(5)(i), (ii), (iii) or (iv) of this Article IV, for so long
as any person or entity or group of persons or entities acting in
concert beneficially own 15% or more of the outstanding shares of Class
B Common Stock, then in any election of directors or other exercise of
voting rights with respect to the election or removal of directors,
such person, entity or group shall only be entitled to vote (or
otherwise exercise voting rights with respect to) a number of shares of
Class B Common Stock that constitutes a percentage of the total number
of shares of Class B Common Stock then outstanding which is less than
or equal to such person, entity or group's Entitled Voting Percentage.
For the purposes hereof, a person, entity or group's "Entitled Voting
Percentage" at any time shall mean the percentage of the then
outstanding shares of Common Stock beneficially owned by such person,
entity or group at such time. For purposes of this Section B.(5)(v), a
"beneficial owner" of Common Stock includes any person or entity or
group of persons or entities who, directly or indirectly, including
through any contract, arrangement, understanding, relationship or
otherwise, written or oral, formal or informal, control the voting
power (which includes the power to vote or to direct the voting) of
such Common Stock within the meaning of Rule 13d-3(a)(1) under the
Securities Exchange Act of 1934, as amended.
(6) Merger or Consolidation. The Corporation shall not enter into any
consolidation of the Corporation with one or more other corporations, a merger
of the
A-2 - 6
Corporation with another corporation, a reorganization of the Corporation or
other similar combination of the Corporation with one or more third parties,
unless each holder of a share of Common Stock or Class B Common Stock is
entitled to receive with respect to such share the same kind and amount of
shares of stock and other securities and property (including cash) receivable
upon such consolidation, merger, reorganization or other combination as each
other holder of a share of Common Stock and Class B Common Stock; provided that,
in any such transaction consummated prior to the Elimination Vote, the holders
of shares of Common Stock and Class B Common Stock may each receive different
kinds of shares of stock that differ to the extent and only to the extent that
the Board of Directors determines in good faith that such shares differ with
respect to the rights of holders of such shares to substantially the same extent
as the Common Stock and the Class B Common Stock differ as provided herein.
(7) Liquidation. In the event of any liquidation, dissolution or
winding up of the Corporation, the holders of the Common Stock and Class B
Common Stock shall participate equally per share in any distribution to
stockholders, without distinction between classes.
ARTICLE V
A. General. The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors. The Board of
Directors shall have concurrent power with the stockholders to make, alter,
amend, change, add to or repeal the Bylaws of the Corporation. In furtherance
and not in limitation of the powers conferred upon the Board of Directors by the
DGCL and this Restated Certificate of Incorporation, the Board of Directors is
hereby expressly empowered to exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation, subject to the provisions
of the DGCL, this Restated Certificate of Incorporation and any bylaws adopted
by the stockholders of the Corporation; provided, however, that no bylaws
adopted by the stockholders of the Corporation shall invalidate any prior act of
the Board of Directors that would have been valid if such bylaws had not been
adopted.
B. Number and Class of Directors.
(1) Number of Directors. The number of directors that shall constitute
the entire Board of Directors of the Corporation shall be fixed from time to
time exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the Board of Directors; provided, however, (i) that in no event
shall the number of directors constituting the entire Board of Directors be less
than three nor more than fifteen (provided, however, that until such time as an
Elimination Vote occurs, the Board of Directors shall not reduce the number of
directors to a number less than seven) and (ii) no decrease in the number of
directors shall have the effect of shortening the term of any incumbent
director.
[(2) Classified Board. The directors, other than those who may be
elected by the holders of any series of Preferred Stock, shall be divided into
three classes: Class I, Class II and Class III. As of the effectiveness of this
Restated Certificate of Incorporation, the Board of Directors shall assign each
person who is serving as a
A-2 - 7
director to one of such classes, as determined in the sole discretion of the
Board of Directors; provided, however, that the initial Voting Share Director
shall be assigned to Class I. Such classes shall be as nearly equal in number of
directors as possible. Each director shall serve for a term ending on the third
annual meeting of stockholders following the annual meeting of stockholders at
which that director was elected; provided, however, that the directors first
designated as Class I directors shall serve for a term expiring at the annual
meeting of stockholders next following the date of their designation as Class I
directors, the directors first designated as Class II directors shall serve for
a term expiring at the second annual meeting of stockholders next following the
date of their designation as Class II directors, and the directors first
designated as Class III directors shall serve for a term expiring at the third
annual meeting of stockholders next following the date of their designation as
Class III directors. Each director shall hold office until the annual meeting of
stockholders at which his term expires and, the foregoing notwithstanding, shall
serve until his successor shall have been duly elected and qualified or until
his earlier death, resignation or removal.
At each annual election, the directors chosen to succeed those
whose terms then expire shall be of the same class as the directors they
succeed, unless, by reason of any intervening changes in the authorized number
of directors, the Board of Directors shall have designated one or more
directorships whose term then expires as directorships of another class in order
to more nearly achieve equality of number of directors among the classes.
In the event of any change in the authorized number of
directors, each director then continuing to serve as such shall nevertheless
continue as a director of the class of which he is a member until the expiration
of his current term, or his prior death, resignation or removal. The Board of
Directors shall specify the class to which a newly created directorship shall be
allocated.](4)
C. Manner of Election. The election of directors at any annual
or special meeting of the stockholders of the Corporation need not be by written
ballot unless the Bylaws of the Corporation so provide.
D. Vacancies.
(1) Any vacancy in the office of a director created by the death,
resignation, retirement, disqualification, removal from office of a director or
other cause, elected by (or appointed on behalf of) the holders of the Voting B
Shares, on the one hand, or the holders of the Voting Shares, on the other hand,
as the case may be, shall be filled by the vote of the majority of the directors
(or the sole remaining director) elected by (or appointed on behalf of) such
holders of Voting B Shares, on the one hand, or Voting Shares, on the other
hand, as the case may be, unless there are no such directors in such class, in
which case such vacancy shall be filled by the holders of the Voting B Shares or
Voting Shares, respectively, unless the Elimination Vote shall have occurred, in
which case such vacancy shall be filled by the vote of the majority of the
directors (or the sole
----------
(4) This Section B(2) of Article V will be included only if the Staggered Board
Proposal is approved.
A-2 - 8
remaining director) then in office, even if less than a quorum, regardless of
any quorum requirements set out in the Bylaws. Any director elected to fill a
vacancy not resulting from an increase in the number of directors shall have the
same term as that of his predecessor.
(2) Unless the Elimination Vote shall have occurred, all newly-created
directorships resulting from an increase in the authorized number of directors
shall be allocated pursuant to Section B(5) of Article IV. Once such
newly-created directorships have been allocated as Voting Share Directors or
Voting B Share Directors, such newly-created directorships shall be filled by
the vote of the majority of the directors in such class (or the sole remaining
director in such class), as the case may be, unless there are no such directors
in such class, in which case such vacancy shall be filled by the holders of the
Voting Shares or Voting B Shares, respectively, unless the Elimination Vote
shall have occurred, in which case such vacancy shall be filled by the vote of
the majority of the directors (or the sole remaining director) then in office,
even if less than a quorum, regardless of any quorum requirements set out in the
Bylaws.
ARTICLE VI
A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, as the same
exists or hereafter may be amended or replaced, or (iv) for any transaction from
which the director derived any improper personal benefit. If the DGCL is amended
after the filing of this Restated Certificate of Incorporation to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the DGCL as so amended.
Any repeal or modification of this Article VI 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.
ARTICLE VII
A. Indemnification. Each person who was or is made 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 (a
"Proceeding"), by reason of the fact that he or she is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise (an "Indemnitee"), shall be indemnified and
held harmless by the Corporation to the fullest extent permitted by applicable
law in effect on the date of the filing of this Restated Certificate of
Incorporation, and to such greater extent as applicable law may thereafter
permit, against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement
A-2 - 9
incurred by such Indemnitee in connection with such a Proceeding, and such right
of indemnification shall continue with respect to an Indemnitee who has ceased
to be such a director or officer and shall inure to the benefit of his or her
heirs, executors and administrators. The rights of an Indemnitee under the
immediately preceding sentence shall include, but not be limited to, the right
to be indemnified to the fullest extent permitted by Section 145(b) of the DGCL
in the case of Proceedings by or in the right of the Corporation and to the
fullest extent permitted by Section 145(a) of the DGCL in the case of all other
Proceedings.
B. Advancement of Expenses. An Indemnitee shall be entitled to
the payment of expenses (including attorneys' fees) incurred in defending any
Proceeding in advance of the final disposition thereof in accordance with the
provisions set forth in the Bylaws of the Corporation or, if no provisions
relating to the advancement of expenses are set forth therein, in accordance
with such terms and conditions as the Board of Directors deems appropriate.
C. Determination of Entitlement to Indemnification. A
determination as to whether an Indemnitee is entitled to indemnification in
respect of any expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement incurred by such Indemnitee in connection with a Proceeding
shall be made in accordance with Section 145(d) of the DGCL and the provisions
set forth in the Bylaws of the Corporation.
D. Non-Exclusivity. The rights conferred by this Article VII
shall not be exclusive of any other rights which an Indemnitee or any other
person may now or hereafter have under this Restated Certificate of
Incorporation or any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
ARTICLE VIII
No stockholder of the Corporation shall by reason of his or
her holding shares of any class or series of its capital stock have any
preemptive or preferential right to purchase or subscribe for or otherwise
acquire or receive any shares of any class or series of capital stock issued by
the Corporation, whether now or hereafter authorized, or any shares of any class
or series of capital stock of the Corporation now or hereafter acquired by the
Corporation as treasury stock and subsequently reissued or sold or otherwise
disposed of, or any notes, debentures, bonds or other securities convertible
into, or any warrants, rights or options exercisable for, any shares of any
class or series of capital stock of the Corporation, whether or not the issuance
of any such shares or such notes, debentures, bonds or other securities or
warrants, rights or options would adversely affect the dividend, voting or any
other rights of such stockholder.
[ARTICLE IX
Special meetings of the stockholders of the Corporation may be
called only by the Chairman, or in his absence by the President, by the Board of
Directors, or by
A-2 - 10
the Secretary at the request in writing of a majority of the Board of Directors
and may not be called by the stockholders of the Corporation.](5)
[ARTICLE X
Any action required to be taken or which may be taken by the
holders of the Corporation Common Stock must be effected at a duly called annual
or special meeting of such holders and may not be taken by written consent in
lieu of a meeting.](6)
ARTICLE XI
The Board of Directors shall have the power to adopt, alter,
amend and repeal the Bylaws of the Corporation, in any manner not inconsistent
with the laws of the State of Delaware, subject to the power of the stockholders
to adopt, amend or repeal the Bylaws.
[ARTICLE XII
Notwithstanding anything else contained in this Restated
Certificate of Incorporation or the Bylaws to the contrary, the affirmative vote
of the holders of record of at least 66 2/3% of the combined voting power of all
of the outstanding stock of the Corporation entitled to vote in respect thereof,
voting together as a single class, shall be required (A) to alter, amend,
rescind or repeal Section B(5)(v) of Article IV, Article V, Article IX, Article
X, Article XI or this Article XII of this Restated Certificate of Incorporation
or to adopt any provision inconsistent therewith or (B) in order for the
stockholders to adopt, alter, amend, rescind or repeal any Bylaws of the
Corporation.](7)
ARTICLE XIII
The Corporation reserves the right to amend, alter, change,
rescind or repeal any provision contained in this Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon the stockholders herein are granted subject to this
reservation.
----------
(5) This Article IX will be included only if the Special Meeting Proposal is
approved.
(6) This Article X will be included only if the Written Consent Proposal is
approved.
(7) This Article XII will be included only if the Supermajority Voting Proposal
is approved.
X-0 - 00
XXXXXXX X-0
AMENDED AND RESTATED
BYLAWS
OF
___________________________________, INC.(1)
ADOPTED AND EFFECTIVE
_______ ____, 2003(2)
--------
(1) To be specified by CXP prior to the filing of the proxy statement.
(2) The date of the spin-off.
TABLE OF CONTENTS
ARTICLE I..............................................................................................1
SECTION 1.1 Registered Office...............................................................1
SECTION 1.2 Other Offices...................................................................1
ARTICLE II.............................................................................................1
SECTION 2.1 Place of Meetings...............................................................1
SECTION 2.2 Annual Meeting..................................................................1
SECTION 2.3 Special Meeting.................................................................1
SECTION 2.4 Quorum..........................................................................2
SECTION 2.5 Voting..........................................................................2
SECTION 2.6 Conduct of Meetings of Stockholders.............................................2
SECTION 2.7 Proxies.........................................................................2
SECTION 2.8 Stockholder List................................................................2
SECTION 2.9 Stock Ledger....................................................................3
SECTION 2.10 Stockholder Action by Written Consent...........................................3
SECTION 2.11 Stockholder Proposals at Annual or Special Meetings.............................3
SECTION 2.12 Stockholder Nominations of Persons for Election to the Board of Directors.......3
ARTICLE III............................................................................................4
SECTION 3.1 Number and Election of Directors................................................4
SECTION 3.2 Vacancies and Newly Created Directorships.......................................4
SECTION 3.3 Place of Meetings...............................................................5
SECTION 3.4 Regular Meetings................................................................5
SECTION 3.5 Special Meetings................................................................5
SECTION 3.6 Quorum..........................................................................5
SECTION 3.7 Conduct of Meetings of the Board of Directors...................................6
SECTION 3.8 Meetings by Telephone Conference................................................6
SECTION 3.9 Action by Written Consent.......................................................6
SECTION 3.10 Committees of Directors.........................................................6
SECTION 3.11 Interested Directors............................................................7
SECTION 3.12 Resignation.....................................................................7
SECTION 3.13 Compensation of Directors.......................................................7
ARTICLE IV.............................................................................................7
SECTION 4.1 General.........................................................................7
SECTION 4.2 Election and Terms..............................................................8
SECTION 4.3 Salaries........................................................................8
SECTION 4.4 President.......................................................................8
SECTION 4.5 Vice Presidents.................................................................8
SECTION 4.6 Secretary.......................................................................8
SECTION 4.7 Treasurer.......................................................................9
SECTION 4.8 Assistant Secretaries...........................................................9
SECTION 4.9 Assistant Treasurers............................................................9
SECTION 4.10 Other Officers..................................................................9
SECTION 4.11 Delegation of Authority.........................................................9
SECTION 4.12 Removal.........................................................................9
SECTION 4.13 Resignation....................................................................10
ARTICLE V.............................................................................................10
SECTION 5.1 Certificates Evidencing Shares.................................................10
SECTION 5.2 Transfer Agents and Registrars.................................................10
SECTION 5.3 Signatures.....................................................................10
SECTION 5.4 Lost, Stolen or Destroyed Stock Certificates...................................10
SECTION 5.5 Transfers......................................................................10
SECTION 5.6 Record Date....................................................................10
SECTION 5.7 Registered Stockholders........................................................11
ARTICLE VI............................................................................................11
SECTION 6.1 General........................................................................11
SECTION 6.2 Expenses Related to Proceedings................................................11
SECTION 6.3 Advancement of Expenses........................................................11
SECTION 6.4 Request for Indemnification....................................................11
SECTION 6.5 Determining Entitlement to Indemnification Prior to a Change of Control........11
SECTION 6.6 Determining Entitlement to Indemnification After a Change of Control...........12
SECTION 6.7 Procedures of Independent Counsel..............................................12
SECTION 6.8 Expenses of Independent Counsel................................................12
SECTION 6.9 Trial De Novo..................................................................13
SECTION 6.10 Non-Exclusivity................................................................13
SECTION 6.11 Insurance and Subrogation......................................................13
SECTION 6.12 Severability...................................................................14
SECTION 6.13 Certain Persons Not Entitled to Indemnification................................14
SECTION 6.14 Definitions....................................................................14
SECTION 6.15 Notices........................................................................15
SECTION 6.16 Contractual Rights.............................................................15
ARTICLE VII...........................................................................................15
SECTION 7.1 Notices........................................................................15
SECTION 7.2 Waiver of Notice...............................................................15
ARTICLE VIII..........................................................................................16
SECTION 8.1 Amendments by Stockholders.....................................................16
SECTION 8.2 Amendments by Directors........................................................16
ARTICLE IX............................................................................................16
SECTION 9.1 Fiscal Year....................................................................16
SECTION 9.2 Disbursements..................................................................16
SECTION 9.3 Corporate Seal.................................................................16
AMENDED AND RESTATED
BYLAWS
OF
__________________________, INC.(3)
ARTICLE I
OFFICES
SECTION 1.1 Registered Office. The registered office of __________,
Inc.3 (the "Corporation") in the State of Delaware shall be in care of
Corporation Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxx xx
Xxxxxxxxxx, Xxxxxx of New Castle, Delaware.
SECTION 1.2 Other Offices. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the Board
of Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1 Place of Meetings. All meetings of the stockholders shall
be held at such place, either within or without the State of Delaware, as shall
be designated from time to time by the Board of Directors.
SECTION 2.2 Annual Meeting. An annual meeting of the stockholders, for
the purpose of electing directors and transacting such other business as may
properly be brought before the meeting, shall be held on such date in each year
and at such time as shall be designated by the Board of Directors. A failure to
hold the annual meeting at the designated time or to elect a sufficient number
of directors to conduct the business of the Corporation shall not affect
otherwise valid corporate acts or work a forfeiture or dissolution of the
Corporation, except as may be otherwise specifically provided by law. If the
annual meeting for election of directors is not held on the date designated
therefor, the directors shall cause the meeting to be held as soon thereafter as
convenient. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given not less than ten nor more than 60 days
before the date of the meeting to each stockholder entitled to vote at such
meeting. If mailed, notice is given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on the
records of the Corporation.
SECTION 2.3 Special Meeting. Unless otherwise prescribed by law or by
the Certificate of Incorporation, a special meeting of the stockholders, for any
purpose or purposes, may be called only by the Chairman of the Board or in his
absence by the President, by the Board of Directors, or by the Secretary, at the
request in writing of a majority of the members of the Board of Directors and
may not be called by the stockholders of the Corporation. Any such request shall
state the purpose or purposes of the
----------
(3) To be specified by CXP prior to the filing of the proxy statement.
B-1 - 1
proposed meeting. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called shall be given not less than ten nor more than 60 days before the date of
the meeting to each stockholder entitled to vote at such meeting. If mailed,
notice is given when deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the records of the
Corporation.
SECTION 2.4 Quorum. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, the presence, in person or
represented by proxy, of the holders of a majority of the voting power of the
shares of capital stock of the Corporation entitled to vote on any matter shall
constitute a quorum for the purpose of considering such matter at a meeting of
the stockholders. If a meeting of the stockholders cannot be organized because a
quorum has not attended, the stockholders entitled to vote thereat, present in
person or represented by proxy, shall have the power to adjourn the meeting from
time to time until a quorum shall be present or represented. When a meeting is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting at which a quorum shall be
present or represented, the Corporation may transact any business which might
have been transacted at the original meeting. If the adjournment is for more
than 30 days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
SECTION 2.5 Voting. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, (i) any question brought before
any meeting of stockholders shall be decided by the affirmative vote of the
holders of a majority of the shares present in person or represented by proxy at
the meeting and entitled to vote on the subject matter and (ii) directors of the
Corporation shall be elected by a plurality of the votes of the shares present
in person or represented by proxy at the meeting and entitled to vote on the
election of directors.
SECTION 2.6 Conduct of Meetings of Stockholders. At each meeting of the
stockholders, the Chairman of the Board or, in his absence, the President or, in
his absence, a chairman chosen by a majority vote of the stockholders present in
person or represented by proxy and entitled to vote thereat, shall preside and
act as chairman of the meeting. The Secretary or, in his absence, an Assistant
Secretary, or, in the absence of the Secretary and all Assistant Secretaries, a
person whom the chairman of such meeting shall appoint, shall act as secretary
of such meeting and keep the minutes thereof. The Board of Directors may adopt
such rules and regulations as it determines are reasonably necessary or
appropriate in connection with the organization and conduct of any meeting of
the stockholders. Without limiting the generality of the foregoing, the Board of
Directors, in its discretion, or the person presiding at a meeting of the
stockholders, in his or her discretion, may require that any votes cast at such
meeting be cast by written ballot.
SECTION 2.7 Proxies. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him by proxy,
but no such proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power. A
proxy may be made irrevocable regardless of whether the interest with which it
is coupled is an interest in the stock itself or an interest in the Corporation
generally.
SECTION 2.8 Stockholder List. The officer or agent who has charge of
the stock ledger of the Corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to
B-1 - 2
the meeting, during ordinary business hours, for a period of at least ten days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also
be produced and kept open at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is present. In lieu of
making and producing such list, the Corporation may make the information therein
available by any other means permitted by law.
SECTION 2.9 Stock Ledger. The stock ledger shall be the only evidence
as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 2.8 or the books of the Corporation, or to vote in person or
by proxy at any meeting, of the stockholders.
SECTION 2.10 Stockholder Action by Written Consent. No action required
to be taken or which may be taken at any annual or special meeting of the
stockholders of the Corporation may be taken by written consent, without a
meeting, as the power of the stockholders to take action by written consent is
specifically denied.
SECTION 2.11 Stockholder Proposals at Annual or Special Meetings. At an
annual or special meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before a meeting, business must be specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the Board of
Directors, otherwise properly brought before the meeting by or at the direction
of the Board of Directors or otherwise properly brought before the meeting by a
stockholder. In addition to any other applicable requirements, for business to
be properly brought before a meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation. To
be timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation, not less than 90 days nor
more than 180 days prior to an annual meeting, or in the case of a special
meeting, not less than 30 days nor more than 60 days prior to such meeting;
provided, however, that in the event that less than 50 days notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the seventh day following the day on which such notice of
the date of the meeting was mailed or such public disclosure was made. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the 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 record address of the
stockholder proposing such business, (iii) the class and number of shares of the
Corporation that are beneficially owned by the stockholder and (iv) any material
interest of the stockholder in such business. Notwithstanding anything in these
Bylaws to the contrary, no business shall be conducted at an annual or special
meeting except in accordance with the procedures set forth in this Section 2.11;
provided, however, that nothing in this Section 2.11 shall be deemed to preclude
discussion by any stockholder of any business properly brought before the annual
meeting in accordance with said procedures.
SECTION 2.12 Stockholder Nominations of Persons for Election to the
Board of Directors. In addition to any other applicable requirements, only
persons who are nominated in accordance with the following procedures shall be
eligible for election as directors at an annual or special meeting of the
stockholders. Nominations of persons for election to the Board of Directors of
the Corporation may be made at a meeting of stockholders by or at the direction
of the Board of Directors, by any nominating committee or person appointed by
the Board of Directors or by any stockholder of the Corporation entitled to vote
for the election of directors at the meeting who complies with the notice
procedures set forth in this Section 2.12. Such nominations, other than those
made by or at the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 90 days nor more
than 180 days prior to an annual meeting or, in the case of a special meeting,
not less than 30 days nor more than 60 days prior to such meeting;
B-1 - 3
provided, however, that in the event that less than 50 days notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the seventh day following the day on which such notice of
the date of the meeting was mailed or such public disclosure was made. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, (i) the name,
age, business address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class and number of shares of
the Corporation beneficially owned by the person and (iv) any other information
relating to the person that is required to be disclosed in solicitations for
proxies for election of directors pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and (b) as to
the stockholder giving the notice, (i) the name and record address of the
stockholder and (ii) the class and number of shares of the Corporation
beneficially owned by the stockholder. The Corporation may require any proposed
nominee to furnish such other information as may reasonably be required by the
Corporation to determine the eligibility of such proposed nominee to serve as a
director of the Corporation. No person shall be eligible for election as a
director of the Corporation at an annual or special meeting of the stockholders
unless nominated in accordance with the procedures set forth herein. These
provisions shall not apply to the nomination of any persons entitled to be
separately elected by holders of any class or series of preferred stock.
ARTICLE III
DIRECTORS
SECTION 3.1 Number and Election of Directors. The business and affairs
of the Corporation shall be managed by or under the direction of the Board of
Directors. The number of directors that shall constitute the entire Board of
Directors of the Corporation shall be fixed from time to time exclusively by the
affirmative vote of a majority of the members at any time constituting the Board
of Directors, and such number may be increased or decreased from time to time;
provided, however, that (i) in no event shall the number of directors serving on
the Board of Directors be less than three nor more than fifteen and (ii) no
decrease in the number of directors shall have the effect of shortening the term
of any incumbent director. Except as provided in the Certificate of
Incorporation or in Section 3.2, directors shall be elected by a plurality of
the votes of the shares present or represented by proxy at annual meetings of
the stockholders. Except as provided in the Certificate of Incorporation, each
director shall hold office until the next annual meeting of the stockholders and
until his successor shall have been duly elected and qualified. If the
Certificate of Incorporation so provides, (i) the directors of the Corporation
shall be divided into classes ("Term of Office Classes") based upon the
expiration of their terms of office and (ii) the directors of the Corporation
shall be divided into classes ("Voting Constituency Classes" ) based on the
class of capital stock the holders of which are entitled to elect such
directors. If the Certificate of Incorporation provides for both Term of Office
Classes and Voting Constituency Classes, each director shall be assigned to a
Term of Office Class and a Voting Constituency Class in accordance with the
terms of the Certificate of Incorporation and the provisions set forth in the
remainder of this Article III. Notwithstanding anything to the contrary
contained in this Article III, the manner of election, terms of office and other
provisions relating to directors serving in any Term of Office Classes or Voting
Constituency Classes shall be as provided in the Certificate of Incorporation.
SECTION 3.2 Vacancies and Newly Created Directorships. In addition to
any applicable requirements set forth in the Certificate of Incorporation, if at
a time when the Certificate of Incorporation provides for Voting Constituency
Classes there occurs any vacancy in the office of a Voting Share Director (as
defined in Section B.(5)(i) of Article IV of the Certificate of Incorporation)
or Voting B Share Director (as defined in Section B.(5)(i) of Article IV of the
Certificate of Incorporation) due to the death, resignation, retirement,
disqualification or removal from office of such director or other cause, such
vacancy shall be filled by the vote of the majority of the Voting Share
Directors (or the sole remaining Voting Share Director) or a majority of the
Voting B Share Directors (or the sole remaining
B-1 - 4
Voting B Share Director), as the case may be, unless there are no such directors
in such class, in which case such vacancy shall be filled by the holders of the
Voting Shares or Voting B Shares, as the case may be. If at a time when the
Certificate of Incorporation does not provide for Voting Constituency Classes
there occurs any vacancy in the office of a director due to the death,
resignation, retirement, disqualification or removal from office of such
director or other cause, such vacancy shall be filled exclusively by the vote of
the majority of the directors (or the sole remaining director) then in office,
even if less than a quorum, regardless of any quorum requirements set out in
these Bylaws.
All newly-created directorships resulting from an increase in the
authorized number of directors at a time when the Certificate of Incorporation
provides for Voting Constituency Classes shall be allocated between such classes
pursuant to in Section B.(5)(iii) of Article IV of the Certificate of
Incorporation. Once such newly-created directorships have been designated as
Voting Share Directors or Voting B Share Directors, such newly created
directorships shall be filled by the vote of the majority of the directors in
such class (or the sole remaining director in such class), as the case may be,
unless there are no such directors in such class, in which case such vacancy
shall be filled by the holders of the Voting Shares or Voting B Shares, as the
case may be. All newly-created directorships resulting from an increase in the
authorized number of directors at a time when the Certificate of Incorporation
does not provide for Voting Constituency Classes shall be filled exclusively by
the vote of the majority of the directors (or the sole remaining director) then
in office, even if less than a quorum, regardless of any quorum requirements set
out in these Bylaws.
Any vacancies or newly-created directorships filled in accordance with
this Section 3.2 at a time when the Certificate of Incorporation provides for
Term of Office Classes shall be allocated among the Term of Office Classes
pursuant to Section B of Article V of the Certificate of Incorporation.
No decrease in the number of authorized directors constituting the
entire Board of Directors shall shorten the term of any incumbent director.
SECTION 3.3 Place of Meetings. The Board of Directors of the
Corporation may hold its meetings, both regular and special, at such place,
either within or without the State of Delaware, as shall be designated from time
to time by the Board of Directors, the Chairman of the Board or the President.
SECTION 3.4 Regular Meetings. Promptly after each annual election of
directors, the Board of Directors shall meet for the purpose of the election of
officers and the transaction of other business, at the place where such annual
election is held. The Board of Directors may also hold other regular meetings at
such time or times and at such place or places as shall be designated by the
Board of Directors from time to time. Notice of regular meetings of the Board of
Directors need not be given.
SECTION 3.5 Special Meetings. Special meetings of the Board of
Directors may be called by (i) the Chairman of the Board or (ii) the Secretary,
if requested to do so by a majority of the members of the Board of Directors.
Notice shall be sent to the last known address of each director, by mail,
telegram, cable or telex, at least two days before the meeting, or oral notice
may be substituted for such written notice if received not later than the day
preceding such meeting, and the place and time of such special meeting shall be
as designated in the notice of such meetings.
SECTION 3.6 Quorum. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, at all meetings of the Board of
Directors a majority of the total number of directors in office shall constitute
a quorum for the transaction of business, and the vote of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until
quorum shall be present.
B-1 - 5
SECTION 3.7 Conduct of Meetings of the Board of Directors. The Board of
Directors may, in its discretion, elect from among its members a Chairman of the
Board, who may, but need not be, an officer of the Corporation. A person elected
as Chairman of the Board shall serve in such capacity for such term as is
specified by the Board of Directors at the time of his or her election. At each
meeting of the Board of Directors, the Chairman of the Board or, in his or her
absence, any other director chosen by a majority of the directors present, shall
preside and act as chairman of the meeting. The Secretary or, in his or her
absence, any other person whom the chairman of the meeting shall appoint, shall
act as secretary of such meeting and keep the minutes thereof.
SECTION 3.8 Meetings by Telephone Conference. Members of the Board of
Directors of the Corporation may participate in a meeting of such Board of
Directors or a committee thereof by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Section 3.8 shall constitute presence in person at such meeting.
SECTION 3.9 Action by Written Consent. Except as otherwise provided by
the Certificate of Incorporation, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting if all members of the Board of Directors or committee,
as the case may be, consent thereto in writing setting forth the action so
taken, and the writing or writings are filed with the minutes of proceedings of
the Board of Directors or committee.
SECTION 3.10 Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
or more committees, each committee to consist of one or more of the directors of
the Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or she or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors
establishing such committee, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation. Notwithstanding the foregoing, no committee shall
have the power or authority to take any of the following actions:
(a) amend the Certificate of Incorporation (except that a
committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of any series
of capital stock of the Corporation adopted by the Board of
Directors as permitted by the General Corporation Law of the
State of Delaware as set forth in Title 8 of the Delaware Code
(the "DGCL"), fix the designations and any of the preferences
or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation or
the conversion into, or the exchange of such shares for,
shares of any other class or classes or any other series of
the same or any other class or classes of stock of the
Corporation or fix the number of shares of any series of stock
or authorize the increase or decrease of the shares of any
series);
(b) adopt an agreement of merger or consolidation under the DGCL;
(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
B-1 - 6
(e) amend the Bylaws of the Corporation.
In addition, unless the resolution of the Board of Directors
designating the committee expressly so provides, no such committee shall have
the power or authority to take any of the following actions:
(i) declare a dividend;
(ii) authorize the issuance of stock; or
(iii) adopt a certificate of ownership and merger pursuant to the
DGCL.
Each committee shall keep regular minutes of its meetings and report
the same to the Board of Directors when required.
SECTION 3.11 Interested Directors. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or the committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof or the stockholders. Interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
SECTION 3.12 Resignation. Any director of the Corporation may resign at
any time by giving written notice of his resignation to the President or the
Secretary. Such resignation shall take effect at the date of receipt of such
notice by the President or the Secretary, or at any later time specified
therein. Unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 3.13 Compensation of Directors. The directors shall receive
such compensation for their services as the Board of Directors may from time to
time determine. No director shall be prevented from receiving compensation for
his services as a director by reason of the fact that he is also an officer of
the Corporation. All directors shall be reimbursed for their reasonable expenses
of attendance at each regular or special meeting of the Board of Directors.
Members of any committee of directors may be allowed like compensation and
reimbursement for expenses for serving as members of any such committee and for
attending committee meetings.
ARTICLE IV
OFFICERS
SECTION 4.1 General. The officers of the Corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary and a
Treasurer. The Board of Directors, in its
B-1 - 7
discretion, may also elect a Chief Executive Officer, one or more Vice
Presidents (including Executive Vice Presidents and Senior Vice Presidents),
Assistant Secretaries, Assistant Treasurers and other officers. Any number of
offices may be held by the same person, unless otherwise prohibited by law, the
Certificate of Incorporation or these Bylaws. The officers of the Corporation
need not be stockholders or directors of the Corporation.
SECTION 4.2 Election and Terms. The Board of Directors at its first
meeting held after each annual meeting of stockholders shall elect the officers
of the Corporation, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors; and all officers of the Corporation shall hold
office until their successors are chosen and qualified or until their earlier
resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors.
SECTION 4.3 Salaries. The salaries of all officers of the Corporation
shall be fixed by the Board of Directors and may be altered from time to time,
except as otherwise provided by contract. No officer shall be prevented from
receiving a salary solely be reason of the fact that he is also a director.
SECTION 4.4 Chief Executive Officer and President. The Chief Executive
Officer, or if there be none, the President shall be the chief executive officer
of the Corporation. Subject to the supervision of the Board of Directors, the
Chief Executive Officer and, subject to the supervision of the Chief Executive
Officer, the President shall have general charge of the business, affairs and
property of the Corporation and shall have control over its officers, agents,
and employees. The President shall see that all orders and resolutions of the
Board of Directors and the Chief Executive Officer are carried into effect.
Either the Chief Executive Officer or the President may execute and deliver
certificates for shares of the Corporation, any deeds, mortgages, bonds,
contracts or other instruments that the Board of Directors has authorized to be
executed and delivered, except where required or permitted by law to be
otherwise executed and delivered and except that the other officers of the
Corporation may execute and deliver documents when authorized to do so by these
Bylaws, the Board of Directors or the President. The Chief Executive Officer and
the President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him or her by these Bylaws or by
the Board of Directors.
SECTION 4.5 Vice Presidents. Each Vice President shall perform such
duties and have such other powers as the Board of Directors from time to time
may prescribe. Certain Vice Presidents may from time to time be designated by
the Board of Directors as Executive Vice Presidents or Senior Vice Presidents,
which positions shall have such varying degrees of authority as the Board of
Directors shall prescribe.
SECTION 4.6 Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors, under
whose supervision he or she shall act. If the Secretary shall be unable or shall
refuse to cause to be given notice of all meetings of the stockholders and
special meetings of the Board of Directors, and if there be no Assistant
Secretary, then the Board of Directors may choose another officer to cause such
notice to be given. The Secretary shall have custody of the seal of the
Corporation and the Secretary or an Assistant Secretary, if there be one, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by the signature of the Secretary or by the
signature of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his or her signature. The Secretary
B-1 - 8
shall see that all books, reports, statements, certificates and other documents
and records required by law to be kept or filed are properly kept or filed, as
the case may be.
SECTION 4.7 Treasurer. The Treasurer shall be the chief financial
officer of the Corporation and shall have custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the Board of Directors, at its regular meeting, or when the Board of Directors
so requires, an account of all his or her transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors,
the Treasurer shall give the Corporation a bond in such sum and with such surety
or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his or her office and for the restoration to the
Corporation, in case of his or her death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his or her possession or under his or her control belonging to
the Corporation.
SECTION 4.8 Assistant Secretaries. Except as may be otherwise provided
in these Bylaws, Assistant Secretaries, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the President, any Vice President, if there be one, or the
Secretary, and in the absence of the Secretary or in the event of his or her
disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
SECTION 4.9 Assistant Treasurers. Assistant Treasurers, if there be
any, shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the President, any Vice President,
if there be one, or the Treasurer, and in the absence of the Treasurer or in the
event of his or her disability or refusal to act, shall perform the duties of
the Treasurer, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the Treasurer. If required by the Board of
Directors, an Assistant Treasurer shall give the Corporation a bond in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his or her office and
for the restoration to the Corporation, in case of his or her death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his or her possession or under his
or her control belonging to the Corporation.
SECTION 4.10 Other Officers. Such other officers as the Board of
Directors may appoint shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
SECTION 4.11 Delegation of Authority. In the case of the absence of any
officer of the Corporation or for any other reason that the Board of Directors
may deem sufficient, the Board of Directors may delegate some or all of the
powers or duties of such officer to any other officer or to any director,
employee, stockholder or agent for whatever period of time the Board of
Directors determines is necessary or appropriate.
SECTION 4.12 Removal. Any officer may be removed, either with or
without cause, by the affirmative vote of a majority of the Board of Directors,
or, except in the case of any officer elected by the Board of Directors, by any
officer upon whom the powers of removal may be conferred by the Board of
Directors.
B-1 - 9
SECTION 4.13 Resignation. Any officer of the Corporation may resign at
any time by giving written notice of his resignation to the Corporation. Such
resignation shall take effect at the date of receipt of such notice by the
Corporation, or at any later time specified therein. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
ARTICLE V
STOCK AND STOCK CERTIFICATES
SECTION 5.1 Certificates Evidencing Shares. Every holder of stock in
the Corporation shall be entitled to have a certificate evidencing the number of
shares owned by such holder signed by or in the name of the Corporation by (i)
the President or a Vice President and (ii) the Secretary or an Assistant
Secretary.
SECTION 5.2 Transfer Agents and Registrars. The Board of Directors may
appoint, or authorize any officer or officers to appoint, one or more transfer
agents and one or more registrars.
SECTION 5.3 Signatures. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or an employee thereof or (ii) a
registrar other than the Corporation or an employee thereof, any other signature
on the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such certificate may be issued by the
Corporation with the same effect as if such officer, transfer agent or registrar
continued to discharge said office or function at the date of issuance.
SECTION 5.4 Lost, Stolen or Destroyed Stock Certificates. The
Corporation may issue a new stock certificate in place of any certificate
theretofore issued by it which is alleged to have been lost, stolen or destroyed
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing such
issuance of a new certificate or certificates, the Board of Directors may, in
its discretion and as a condition precedent to the issuance thereof, require
that the owner of such lost, stolen or destroyed certificate or certificates, or
his legal representative give the Corporation a bond sufficient to indemnify the
Corporation against any claim that may be made against the Corporation on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
SECTION 5.5 Transfers. Stock of the Corporation shall be transferable
in the manner prescribed by law and in these Bylaws. Transfers of stock shall be
made on the books of the Corporation only by the person named in the certificate
or by his or her attorney lawfully constituted in writing and upon the surrender
of the certificate therefor, which shall be cancelled before a new certificate
shall be issued.
SECTION 5.6 Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to express consent to corporate action
in writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of 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, which shall not be more then 60 days nor less than ten days
before the date of such meeting, nor more than 60 days prior to any other
action. A determination of stockholders of record entitled to notice or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
B-1 - 10
SECTION 5.7 Registered Stockholders. Except as otherwise required by
law, the Corporation shall be entitled to recognize the exclusive right of the
person registered on its books as the owner of shares to receive dividends in
respect of such shares and to vote as the owner thereof, and shall not be bound
to recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have notice thereof.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1 General. The Corporation shall indemnify, and advance
Expenses (as this and all other capitalized words used in this Article VI and
not otherwise defined shall have the respective meanings set forth in Section
6.14) to, each Indemnitee to the fullest extent permitted by applicable law in
effect on the date of the adoption of these Bylaws, and to such greater extent
as applicable law may thereafter permit. The rights of an Indemnitee provided
under the preceding sentence shall include, but not be limited to, the right to
be indemnified to the fullest extent permitted by Section 145(b) of the DGCL in
the case of Proceedings by or in the right of the Corporation and to the fullest
extent permitted by Section 145(a) of the DGCL in the case of all other
Proceedings. The provisions set forth below in this Article VI are provided in
furtherance, and not by way of limitation, of the obligations expressed in this
Section 6.1.
SECTION 6.2 Expenses Related to Proceedings. If an Indemnitee is, by
reason of his or her Corporate Status, a witness in or a party to and is
successful, on the merits or otherwise, in any Proceeding, he or she shall be
indemnified against all Expenses actually and reasonably incurred by him or her
or on his or her behalf in connection therewith. If an Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as
to any Matter in such Proceeding, the Corporation shall indemnify such
Indemnitee against all Expenses actually and reasonably incurred by him or her
or on his or her behalf relating to such Matter. The termination of any Matter
in such a Proceeding by dismissal, with or without prejudice, shall be deemed to
be a successful result as to such Matter.
SECTION 6.3 Advancement of Expenses. To the fullest extent permitted by
Section 145(e) of the DGCL, each Indemnitee shall be entitled to payment of, and
the Corporation shall pay, Expenses in advance of the final disposition of any
Proceeding within ten days after receipt by the Corporation of a written notice
requesting the advancement of such Expenses, which notice shall contain an
undertaking by or on behalf of such Indemnitee to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by the
Corporation as authorized by Section 145 of the DGCL.
SECTION 6.4 Request for Indemnification. To obtain indemnification
hereunder, an Indemnitee shall submit to the Corporation a written request with
such information pertinent to such request as is reasonably available to the
Indemnitee. The Secretary of the Corporation shall promptly advise the Board of
Directors of any such request.
SECTION 6.5 Determining Entitlement to Indemnification Prior to a
Change of Control. If a Change of Control has not occurred prior to or at the
time a request for indemnification hereunder is submitted to the Corporation, an
Indemnitee's entitlement to indemnification shall be determined in accordance
with Section 145(d) of the DGCL. If entitlement to indemnification is to be
determined by Independent Counsel, the Corporation shall furnish notice to the
Indemnitee within ten days after receipt of the request for indemnification,
specifying the identity and address of Independent Counsel. The Indemnitee may,
within 14 days after receipt of such written notice of selection, deliver to the
Corporation a written objection to such selection. Such objection may be
asserted only on the ground that the Independent Counsel so selected does not
meet the requirements of Independent Counsel and the objection shall set forth
with particularity the factual basis of such assertion. If there is an objection
to
B-1 - 11
the selection of Independent Counsel, either the Corporation or the Indemnitee
may petition the Court of Chancery of the State of Delaware or any other court
of competent jurisdiction for a determination that the objection is without a
reasonable basis or for the appointment of Independent Counsel selected by the
court.
SECTION 6.6 Determining Entitlement to Indemnification After a Change
of Control. If a Change of Control has occurred prior to or at the time a
request for indemnification hereunder is submitted to the Corporation, an
Indemnitee's entitlement to indemnification shall be determined in a written
opinion of Independent Counsel selected by the Indemnitee. The Indemnitee shall
give the Corporation written notice advising of the identity and address of the
Independent Counsel so selected. The Corporation may, within seven days after
receipt of such written notice of selection, deliver to the Indemnitee a written
objection to such selection. The Indemnitee may, within five days after the
receipt of such objection from the Corporation, submit the name of another
Independent Counsel and the Corporation may, within seven days after receipt of
such written notice of selection, deliver to Indemnitee a written objection to
such selection. Any objection is subject to the limitations set forth in Section
6.5. The Indemnitee may petition the Court of Chancery of the State of Delaware
or any other court of competent jurisdiction for a determination that the
Corporation's objection to any selection of Independent Counsel is without a
reasonable basis or for the appointment as Independent Counsel of a person
selected by the court.
SECTION 6.7 Procedures of Independent Counsel. If a Change of Control
has occurred prior to or at the time the request for indemnification hereunder
is submitted to the Corporation, an Indemnitee shall be presumed (except as
otherwise expressly provided in this Article VI) to be entitled to
indemnification upon submission of a request for indemnification in accordance
with Section 6.4, and thereafter the Corporation shall have the burden of proof
to overcome the presumption in reaching a determination contrary to the
presumption. The presumption shall be used by Independent Counsel as a basis for
a determination of entitlement to indemnification unless the Corporation
provides information sufficient to overcome such presumption by clear and
convincing evidence or the investigation, review and analysis of Independent
Counsel convinces him or her by clear and convincing evidence that the
presumption should not apply.
Except where the determination of entitlement to indemnification is to
be made by Independent Counsel, if the person or persons empowered under Section
6.5 or 6.6 to determine entitlement to indemnification shall not have made and
furnished to the Indemnitee in writing a determination within 60 days after
receipt by the Corporation of the request therefor, the requisite determination
of entitlement to indemnification shall be deemed to have been made and the
Indemnitee shall be entitled to such indemnification unless the Indemnitee
knowingly misrepresented a material fact in connection with the request for
indemnification. The termination of any Proceeding or of any Matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not (except as otherwise expressly provided in this
Article VI) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that (a) the Indemnitee did not act in
good faith and in a manner that he or she reasonably believed, in the case of
conduct in his or her official capacity as a director of the Corporation, to be
in the best interests of the Corporation, or, in all other cases, that at least
his or her conduct was not opposed to the Corporation's best interests, or (b)
with respect to any criminal Proceeding, the Indemnitee had reasonable cause to
believe that his or her conduct was unlawful.
SECTION 6.8 Expenses of Independent Counsel. The Corporation shall pay
any and all reasonable fees and expenses of Independent Counsel acting pursuant
to this Article VI and in any proceeding to which it is a party or witness in
respect of its investigation and written report and shall pay all reasonable
fees and expenses incident to the procedures in which such Independent Counsel
was selected or appointed. No Independent Counsel may serve if a timely
objection has been made to his or her selection until a court has determined
that such objection is without a reasonable basis.
X-0 - 00
XXXXXXX 0.0 Xxxxx Xx Xxxx. Xx the event that (a) a determination is
made pursuant to Section 6.5 or 6.6 that an Indemnitee is not entitled to
indemnification under this Article VI, (b) advancement of Expenses is not timely
made pursuant to Section 6.3, (c) Independent Counsel has not made and delivered
a written opinion determining the request for indemnification (i) within 90 days
after being appointed by a court, (ii) within 90 days after objections to his or
her selection have been overruled by a court or (iii) within 90 days after the
time for the Corporation or the Indemnitee to object to his or her selection or
(d) payment of indemnification is not made within five days after a
determination of entitlement to indemnification has been made or deemed to have
been made pursuant to Section 6.5, 6.6 or 6.7, the Indemnitee shall be entitled
to an adjudication in any court of competent jurisdiction of his or her
entitlement to such indemnification or advancement of Expenses. In the event
that a determination shall have been made that the Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 6.9 shall be conducted in all respects as a de novo trial on the
merits, and Indemnitee shall not be prejudiced by reason of that adverse
determination. If a Change of Control shall have occurred, in any judicial
proceeding commenced pursuant to this Section 6.9, the Corporation shall have
the burden of proving that the Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be. If a determination shall have been
made or deemed to have been made that the Indemnitee is entitled to
indemnification, the Corporation shall be bound by such determination in any
judicial proceeding commenced pursuant to this Section 6.9, or otherwise, unless
the Indemnitee knowingly misrepresented a material fact in connection with the
request for indemnification.
The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 6.9 that the procedures and
presumptions of this Article VI are not valid, binding and enforceable and shall
stipulate in any such court that the Corporation is bound by all provisions of
this Article VI. In the event that an Indemnitee, pursuant to this Section 6.9,
seeks a judicial adjudication to enforce his or her rights under, or to recover
damages for breach of, this Article VI, the Indemnitee shall be entitled to
recover from the Corporation, and shall be indemnified by the Corporation
against, any and all Expenses actually and reasonably incurred by him or her in
such judicial adjudication, but only if he or she prevails therein. If it shall
be determined in such judicial adjudication that an Indemnitee is entitled to
receive part but not all of the indemnification or advancement of Expenses
sought, the Expenses incurred by the Indemnitee in connection with such judicial
adjudication or arbitration shall be appropriately prorated.
SECTION 6.10 Non-Exclusivity. The rights of indemnification and to
receive advancement of Expenses provided by this Article VI shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Certificate of Incorporation, these Bylaws, any
agreement, vote of stockholders, resolution of the Board of Directors or
otherwise. The provisions of this Article VI shall continue as to an Indemnitee
whose Corporate Status has ceased and shall inure to the benefit of his or her
heirs, executors and administrators.
SECTION 6.11 Insurance and Subrogation. To the extent the Corporation
maintains an insurance policy or policies providing liability insurance for
directors or officers of the Corporation or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person serves at the request of the Corporation, each Indemnitee
shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of coverage available for any such director or
officer under such policy or policies.
In the event of any payment hereunder, the Corporation shall be
subrogated to the extent of such payment to all the rights of recovery of the
Indemnitee, who shall execute all papers required and take all action necessary
to secure such rights, including execution of such documents as are necessary to
enable the Corporation to bring suit to enforce such rights.
B-1 - 13
The Corporation shall not be liable under this Article VI to make any
payment of amounts otherwise indemnifiable hereunder if, and to the extent that,
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
SECTION 6.12 Severability. If any provision or provisions of this
Article VI shall be held to be invalid, illegal or unenforceable for any reason
whatsoever, the validity, legality and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired thereby; and, to
the fullest extent permitted by law, the provisions of this Article VI shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
SECTION 6.13 Certain Persons Not Entitled to Indemnification. Subject
to the provisions of Section 6.9, no person shall be entitled to indemnification
or advancement of Expenses under this Article VI with respect to any Proceeding,
or any Matter therein, brought or made by such person against the Corporation.
SECTION 6.14 Definitions. As used in this Article VI, the terms set
forth below shall have the following respective meanings:
"Affiliate" means, with respect to any person, any other person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such person.
"Change of Control" means the occurrence after __________ ___, 2003(4)
of any of the following events: (a) an event required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar
item or any similar schedule or form) promulgated under the Exchange Act,
whether or not the Corporation is then subject to such reporting requirement;
(b) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) shall become the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Corporation representing 50% or more of the combined voting power of the then
outstanding voting securities of the Corporation without prior approval of at
least two-thirds of the members of the Board of Directors in office immediately
prior to such person's attaining such percentage interest; or (c) the
Corporation is a party to a merger, consolidation, sale of assets or other
reorganization, or a proxy contest, as a consequence of which members of the
Board of Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors thereafter.
"Corporate Status" describes the status of (i) an individual who is or
was a director or officer of the Corporation, (ii) an individual who is an
employee or agent of the Corporation (who is not also director or officer of the
Corporation), if the Board of Directors adopts a resolution that specifically
states that such employee or agent shall be entitled to the benefits of this
Article VI to the same extent as if he were an officer or director, or (iii) an
individual identified in clause (i) or (ii) above who is serving at the request
of the Corporation as a director, officer or administrator of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise.
"Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating or being or preparing to be a witness in a
Proceeding.
----------
(4) The date of the spin-off.
B-1 - 14
"Indemnitee" includes any person who is, or is threatened to be made, a
witness in or a party to any Proceeding as described in Section 6.1 or 6.2 by
reason of his or her Corporate Status.
"Independent Counsel" means a law firm, or member of a law firm, that
is experienced in matters of corporation law and neither presently is, nor in
the five years prior to his or her selection or appointment has been, retained
to represent: (a) the Corporation or the Indemnitee in any matter material to
either such party, (b) any other party to the Proceeding giving rise to a claim
for indemnification hereunder or (c) the beneficial owner, directly or
indirectly, of securities of the Corporation representing 5% or more of the
combined voting power of the then outstanding voting securities of the
Corporation.
"Matter" is a claim, a material issue or a substantial request for
relief.
"Proceeding" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative, except one
initiated by an Indemnitee pursuant to Section 6.9 to enforce his or her rights
under this Article VI.
SECTION 6.15 Notices. Any notice or other communication required or
permitted to be sent to the Corporation pursuant to this Article VI shall be
addressed to the Secretary of the Corporation and any such notice or other
communication to an Indemnitee shall be given in writing by depositing the same
in the United States mail, with postage thereon prepaid, addressed to the person
to whom such notice is directed at the address of such person on the records of
the Corporation, and such notice shall be deemed given at the time when the same
shall be so deposited in the United States mail.
SECTION 6.16 Contractual Rights. The right to be indemnified and to the
advancement or reimbursement of Expenses in accordance with this Article VI (i)
is a contract right based upon good and valuable consideration, pursuant to
which Indemnitee may xxx as if these provisions were set forth in a separate
written contract between him or her and the Corporation, (ii) is and is intended
to be retroactive and shall be available as to events occurring prior to the
adoption of these provisions and (iii) shall continue after any rescission or
restrictive modification of such provisions as to events occurring prior to such
rescission or modification.
ARTICLE VII
NOTICES
SECTION 7.1 Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws to be given to any director, member
of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it
appears on the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice may also be given personally
or by telegram, telecopy, telex or cable and such notice shall be deemed given
at the time when the same is sent.
SECTION 7.2 Waiver of Notice. Whenever notice is required by law, the
Certificate of Incorporation or these Bylaws to be given to any director, member
of a committee or stockholder, a written waiver, signed by the person entitled
to notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting of stockholders, in
person or by proxy, or at a meeting of the Board of Directors or committee
thereof shall constitute a waiver of notice of such meeting, except when the
person attends such meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of
B-1 - 15
the stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless so required by the Certificate
of Incorporation or these Bylaws.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 Amendments by Stockholders. These Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted, by the
affirmative vote of the holders of record of at least 66?% of the combined
voting power of all the outstanding stock of the Corporation entitled to vote in
respect thereof, voting together as a single class.
SECTION 8.2 Amendments by Directors. These Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted, by
action of a majority of directors then in office.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1 Fiscal Year. The fiscal year of the Corporation shall end
on the 31st day of March of each year, unless otherwise provided by resolution
of the Board of Directors.
SECTION 9.2 Disbursements. All checks or demands for money and notes of
the Corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
SECTION 9.3 Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal Delaware." The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced.
X-0 - 00
XXXXXXX X-0
AMENDED AND RESTATED
BYLAWS
OF
___________________________________, INC.(1)
ADOPTED AND EFFECTIVE
_______ ____, 2003(2)
--------
(1) To be specified by CXP prior to the filing of the proxy statement.
(2) The date of the spin-off.
TABLE OF CONTENTS
ARTICLE I..............................................................................................1
SECTION 1.1 Registered Office...............................................................1
SECTION 1.2 Other Offices...................................................................1
ARTICLE II.............................................................................................1
SECTION 2.1 Place of Meetings...............................................................1
SECTION 2.2 Annual Meeting..................................................................1
SECTION 2.3 Special Meeting.................................................................1
SECTION 2.4 Quorum..........................................................................2
SECTION 2.5 Voting..........................................................................2
SECTION 2.6 Conduct of Meetings of Stockholders.............................................2
SECTION 2.7 Proxies.........................................................................2
SECTION 2.8 Stockholder List................................................................3
SECTION 2.9 Stock Ledger....................................................................3
SECTION 2.10 Stockholder Action by Written Consent...........................................3
SECTION 2.11 Stockholder Proposals at Annual or Special Meetings.............................3
SECTION 2.12 Stockholder Nominations of Persons for Election to the Board of Directors.......4
ARTICLE III............................................................................................4
SECTION 3.1 Number and Election of Directors................................................4
SECTION 3.2 Vacancies and Newly Created Directorships.......................................5
SECTION 3.3 Place of Meetings...............................................................5
SECTION 3.4 Regular Meetings................................................................6
SECTION 3.5 Special Meetings................................................................6
SECTION 3.6 Quorum..........................................................................6
SECTION 3.7 Conduct of Meetings of the Board of Directors...................................6
SECTION 3.8 Meetings by Telephone Conference................................................6
SECTION 3.9 Action by Written Consent.......................................................6
SECTION 3.10 Committees of Directors.........................................................6
SECTION 3.11 Interested Directors............................................................7
SECTION 3.12 Resignation.....................................................................8
SECTION 3.13 Compensation of Directors.......................................................8
ARTICLE IV.............................................................................................8
SECTION 4.1 General.........................................................................8
SECTION 4.2 Election and Terms..............................................................8
SECTION 4.3 Salaries........................................................................8
SECTION 4.4 Chief Executive Officer and President...........................................8
SECTION 4.5 Vice Presidents.................................................................9
SECTION 4.6 Secretary.......................................................................9
SECTION 4.7 Treasurer.......................................................................9
SECTION 4.8 Assistant Secretaries...........................................................9
SECTION 4.9 Assistant Treasurers............................................................9
SECTION 4.10 Other Officers.................................................................10
SECTION 4.11 Delegation of Authority........................................................10
SECTION 4.12 Removal........................................................................10
SECTION 4.13 Resignation....................................................................10
ARTICLE V.............................................................................................10
SECTION 5.1 Certificates Evidencing Shares.................................................10
SECTION 5.2 Transfer Agents and Registrars.................................................10
SECTION 5.3 Signatures.....................................................................10
SECTION 5.4 Lost, Stolen or Destroyed Stock Certificates...................................10
SECTION 5.5 Transfers......................................................................11
SECTION 5.6 Record Date....................................................................11
SECTION 5.7 Registered Stockholders........................................................11
ARTICLE VI............................................................................................11
SECTION 6.1 General........................................................................11
SECTION 6.2 Expenses Related to Proceedings................................................11
SECTION 6.3 Advancement of Expenses........................................................11
SECTION 6.4 Request for Indemnification....................................................12
SECTION 6.5 Determining Entitlement to Indemnification Prior to a Change of Control........12
SECTION 6.6 Determining Entitlement to Indemnification After a Change of Control...........12
SECTION 6.7 Procedures of Independent Counsel..............................................12
SECTION 6.8 Expenses of Independent Counsel................................................13
SECTION 6.9 Trial De Novo..................................................................13
SECTION 6.10 Non-Exclusivity................................................................14
SECTION 6.11 Insurance and Subrogation......................................................14
SECTION 6.12 Severability...................................................................14
SECTION 6.13 Certain Persons Not Entitled to Indemnification................................14
SECTION 6.14 Definitions....................................................................14
SECTION 6.15 Notices........................................................................15
SECTION 6.16 Contractual Rights.............................................................15
ARTICLE VII...........................................................................................16
SECTION 7.1 Notices........................................................................16
SECTION 7.2 Waiver of Notice...............................................................16
ARTICLE VIII..........................................................................................16
SECTION 8.1 Amendments by Stockholders.....................................................16
SECTION 8.2 Amendments by Directors........................................................16
ARTICLE IX............................................................................................16
SECTION 9.1 Fiscal Year....................................................................16
SECTION 9.2 Disbursements..................................................................16
SECTION 9.3 Corporate Seal.................................................................16
AMENDED AND RESTATED
BYLAWS
OF
__________________________, INC.(3)
ARTICLE I
OFFICES
SECTION 1.1 Registered Office. The registered office of __________,
Inc.(3) (the "Corporation") in the State of Delaware shall be in care of
Corporation Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxx xx
Xxxxxxxxxx, Xxxxxx of New Castle, Delaware.
SECTION 1.2 Other Offices. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the Board
of Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1 Place of Meetings. All meetings of the stockholders shall
be held at such place, either within or without the State of Delaware, as shall
be designated from time to time by the Board of Directors.
SECTION 2.2 Annual Meeting. An annual meeting of the stockholders, for
the purpose of electing directors and transacting such other business as may
properly be brought before the meeting, shall be held on such date in each year
and at such time as shall be designated by the Board of Directors. A failure to
hold the annual meeting at the designated time or to elect a sufficient number
of directors to conduct the business of the Corporation shall not affect
otherwise valid corporate acts or work a forfeiture or dissolution of the
Corporation, except as may be otherwise specifically provided by law. If the
annual meeting for election of directors is not held on the date designated
therefor, the directors shall cause the meeting to be held as soon thereafter as
convenient. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given not less than ten nor more than 60 days
before the date of the meeting to each stockholder entitled to vote at such
meeting. If mailed, notice is given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on the
records of the Corporation.
SECTION 2.3 Special Meeting. [Unless otherwise prescribed by law or by
the Certificate of Incorporation, a special meeting of the stockholders, for any
purpose or purposes, may be called only by the Chairman of the Board or in his
absence by the President, by the Board of Directors, or by the Secretary, at the
request in writing of a majority of the members of the Board of Directors and
may not be
----------
(3) To be specified by CXP prior to the filing of the proxy statement.
B-2 - 1
called by the stockholders of the Corporation.](4) Any such request shall state
the purpose or purposes of the proposed meeting. Written notice of a special
meeting stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called shall be given not less than ten nor
more than 60 days before the date of the meeting to each stockholder entitled to
vote at such meeting. If mailed, notice is given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his address as it
appears on the records of the Corporation.
SECTION 2.4 Quorum. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, the presence, in person or
represented by proxy, of the holders of a majority of the voting power of the
shares of capital stock of the Corporation entitled to vote on any matter shall
constitute a quorum for the purpose of considering such matter at a meeting of
the stockholders. If a meeting of the stockholders cannot be organized because a
quorum has not attended, the stockholders entitled to vote thereat, present in
person or represented by proxy, shall have the power to adjourn the meeting from
time to time until a quorum shall be present or represented. When a meeting is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting at which a quorum shall be
present or represented, the Corporation may transact any business which might
have been transacted at the original meeting. If the adjournment is for more
than 30 days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
SECTION 2.5 Voting. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, (i) any question brought before
any meeting of stockholders shall be decided by the affirmative vote of the
holders of a majority of the shares present in person or represented by proxy at
the meeting and entitled to vote on the subject matter and (ii) directors of the
Corporation shall be elected by a plurality of the votes of the shares present
in person or represented by proxy at the meeting and entitled to vote on the
election of directors.
SECTION 2.6 Conduct of Meetings of Stockholders. At each meeting of the
stockholders, the Chairman of the Board or, in his absence, the President or, in
his absence, a chairman chosen by a majority vote of the stockholders present in
person or represented by proxy and entitled to vote thereat, shall preside and
act as chairman of the meeting. The Secretary or, in his absence, an Assistant
Secretary, or, in the absence of the Secretary and all Assistant Secretaries, a
person whom the chairman of such meeting shall appoint, shall act as secretary
of such meeting and keep the minutes thereof. The Board of Directors may adopt
such rules and regulations as it determines are reasonably necessary or
appropriate in connection with the organization and conduct of any meeting of
the stockholders. Without limiting the generality of the foregoing, the Board of
Directors, in its discretion, or the person presiding at a meeting of the
stockholders, in his or her discretion, may require that any votes cast at such
meeting be cast by written ballot.
SECTION 2.7 Proxies. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him by proxy,
but no such proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power. A
proxy may be made irrevocable regardless of
----------
(4) If the Special Meeting Proposal is not approved, then this sentence
shall read as follows: "Unless otherwise prescribed by law or by the Certificate
of Incorporation, a special meeting of the stockholders, for any purpose or
purposes, may be called (i) by the President or (ii) by the Secretary if
requested to do so by a majority of the members of the Board of Directors."
B-2 - 2
whether the interest with which it is coupled is an interest in the stock itself
or an interest in the Corporation generally.
SECTION 2.8 Stockholder List. The officer or agent who has charge of
the stock ledger of the Corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept open at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present. In lieu of making and producing such list, the
Corporation may make the information therein available by any other means
permitted by law.
SECTION 2.9 Stock Ledger. The stock ledger shall be the only evidence
as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 2.8 or the books of the Corporation, or to vote in person or
by proxy at any meeting, of the stockholders.
SECTION 2.10 Stockholder Action by Written Consent. [No action required
to be taken or which may be taken at any annual or special meeting of the
stockholders of the Corporation may be taken by written consent, without a
meeting, as the power of the stockholders to take action by written consent is
specifically denied.](5)
SECTION 2.11 Stockholder Proposals at Annual or Special Meetings. At an
annual or special meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before a meeting, business must be specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the Board of
Directors, otherwise properly brought before the meeting by or at the direction
of the Board of Directors or otherwise properly brought before the meeting by a
stockholder. In addition to any other applicable requirements, for business to
be properly brought before a meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation. To
be timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation, not less than 90 days nor
more than 180 days prior to an annual meeting, or in the case of a special
meeting, not less than 30 days nor more than 60 days prior to such meeting;
provided, however, that in the event that less than 50 days notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the seventh day following the day on which such notice of
the date of the meeting was mailed or such public disclosure was made. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the 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 record address of the
stockholder proposing such business, (iii) the class and number of shares of the
Corporation that are beneficially owned by the stockholder and (iv) any material
interest of the stockholder in such business. Notwithstanding anything in these
Bylaws to the contrary, no business shall be conducted at an annual or special
meeting except in accordance with the procedures set forth in this Section 2.11;
provided, however, that nothing in this Section 2.11 shall be deemed to preclude
----------
(5) If the Written Consent Proposal is not approved, then this Section
2.10 shall read as follows: "Any action required to be taken or which may be
taken at any annual or special meeting of the stockholders of the Corporation
may be taken by written consent, without a meeting."
B-2 - 3
discussion by any stockholder of any business properly brought before the annual
meeting in accordance with said procedures.
SECTION 2.12 Stockholder Nominations of Persons for Election to the
Board of Directors. In addition to any other applicable requirements, only
persons who are nominated in accordance with the following procedures shall be
eligible for election as directors at an annual or special meeting of the
stockholders. Nominations of persons for election to the Board of Directors of
the Corporation may be made at a meeting of stockholders by or at the direction
of the Board of Directors, by any nominating committee or person appointed by
the Board of Directors or by any stockholder of the Corporation entitled to vote
for the election of directors at the meeting who complies with the notice
procedures set forth in this Section 2.12. Such nominations, other than those
made by or at the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 90 days nor more
than 180 days prior to an annual meeting or, in the case of a special meeting,
not less than 30 days nor more than 60 days prior to such meeting; provided,
however, that in the event that less than 50 days notice or prior public
disclosure of the date of the meeting is given or made to stockholders, notice
by the stockholder to be timely must be so received not later than the close of
business on the seventh day following the day on which such notice of the date
of the meeting was mailed or such public disclosure was made. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or re-election as a director, (i) the name, age, business
address and residence address of the person, (ii) the principal occupation or
employment of the person, (iii) the class and number of shares of the
Corporation beneficially owned by the person and (iv) any other information
relating to the person that is required to be disclosed in solicitations for
proxies for election of directors pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and (b) as to
the stockholder giving the notice, (i) the name and record address of the
stockholder and (ii) the class and number of shares of the Corporation
beneficially owned by the stockholder. The Corporation may require any proposed
nominee to furnish such other information as may reasonably be required by the
Corporation to determine the eligibility of such proposed nominee to serve as a
director of the Corporation. No person shall be eligible for election as a
director of the Corporation at an annual or special meeting of the stockholders
unless nominated in accordance with the procedures set forth herein. These
provisions shall not apply to the nomination of any persons entitled to be
separately elected by holders of any class or series of preferred stock.
ARTICLE III
DIRECTORS
SECTION 3.1 Number and Election of Directors. The business and affairs
of the Corporation shall be managed by or under the direction of the Board of
Directors. The number of directors that shall constitute the entire Board of
Directors of the Corporation shall be fixed from time to time exclusively by the
affirmative vote of a majority of the members at any time constituting the Board
of Directors, and such number may be increased or decreased from time to time;
provided, however, that (i) in no event shall the number of directors serving on
the Board of Directors be less than three nor more than fifteen and (ii) no
decrease in the number of directors shall have the effect of shortening the term
of any incumbent director. Except as provided in the Certificate of
Incorporation or in Section 3.2, directors shall be elected by a plurality of
the votes of the shares present or represented by proxy at annual meetings of
the stockholders. Except as provided in the Certificate of Incorporation, each
director shall hold office until the next annual meeting of the stockholders and
until his successor shall have been duly elected and qualified. [If the
Certificate of Incorporation so provides, (i) the directors of the Corporation
shall be divided into classes ("Term of Office Classes") based upon the
expiration of their terms of office and (ii) the directors of the Corporation
shall be divided into classes ("Voting Constituency Classes" ) based on the
class of capital stock the holders of which are entitled to elect such
directors. If the
B-2 - 4
Certificate of Incorporation provides for both Term of Office Classes and Voting
Constituency Classes, each director shall be assigned to a Term of Office Class
and a Voting Constituency Class in accordance with the terms of the Certificate
of Incorporation and the provisions set forth in the remainder of this Article
III. Notwithstanding anything to the contrary contained in this Article III, the
manner of election, terms of office and other provisions relating to directors
serving in any Term of Office Classes or Voting Constituency Classes shall be as
provided in the Certificate of Incorporation.](6)
SECTION 3.2 Vacancies and Newly Created Directorships. In addition to
any applicable requirements set forth in the Certificate of Incorporation, if at
a time when the Certificate of Incorporation provides for Voting Constituency
Classes(7) there occurs any vacancy in the office of a Voting Share Director (as
defined in Section B.(5)(i) of Article IV of the Certificate of Incorporation)
or Voting B Share Director (as defined in Section B.(5)(i) of Article IV of the
Certificate of Incorporation) due to the death, resignation, retirement,
disqualification or removal from office of such director or other cause, such
vacancy shall be filled by the vote of the majority of the Voting Share
Directors (or the sole remaining Voting Share Director) or a majority of the
Voting B Share Directors (or the sole remaining Voting B Share Director), as the
case may be, unless there are no such directors in such class, in which case
such vacancy shall be filled by the holders of the Voting Shares or Voting B
Shares, as the case may be. If at a time when the Certificate of Incorporation
does not provide for Voting Constituency Classes there occurs any vacancy in the
office of a director due to the death, resignation, retirement, disqualification
or removal from office of such director or other cause, such vacancy shall be
filled exclusively by the vote of the majority of the directors (or the sole
remaining director) then in office, even if less than a quorum, regardless of
any quorum requirements set out in these Bylaws.
All newly-created directorships resulting from an increase in the
authorized number of directors at a time when the Certificate of Incorporation
provides for Voting Constituency Classes shall be allocated between such classes
pursuant to in Section B.(5)(iii) of Article IV of the Certificate of
Incorporation. Once such newly-created directorships have been designated as
Voting Share Directors or Voting B Share Directors, such newly created
directorships shall be filled by the vote of the majority of the directors in
such class (or the sole remaining director in such class), as the case may be,
unless there are no such directors in such class, in which case such vacancy
shall be filled by the holders of the Voting Shares or Voting B Shares, as the
case may be. All newly-created directorships resulting from an increase in the
authorized number of directors at a time when the Certificate of Incorporation
does not provide for Voting Constituency Classes shall be filled exclusively by
the vote of the majority of the directors (or the sole remaining director) then
in office, even if less than a quorum, regardless of any quorum requirements set
out in these Bylaws.
Any vacancies or newly-created directorships filled in accordance with
this Section 3.2 at a time when the Certificate of Incorporation provides for
Term of Office Classes shall be allocated among the Term of Office Classes
pursuant to Section B of Article V of the Certificate of Incorporation.
No decrease in the number of authorized directors constituting the
entire Board of Directors shall shorten the term of any incumbent director.
SECTION 3.3 Place of Meetings. The Board of Directors of the
Corporation may hold its meetings, both regular and special, at such place,
either within or without the State of Delaware, as shall be designated from time
to time by the Board of Directors, the Chairman of the Board or the President.
----------
(6) To be included only if the Staggered Board Proposal is approved.
(7) If the Staggered Board Proposal is not approved, the term "Voting
Constituency Classes" will be defined here.
B-2 - 5
SECTION 3.4 Regular Meetings. Promptly after each annual election of
directors, the Board of Directors shall meet for the purpose of the election of
officers and the transaction of other business, at the place where such annual
election is held. The Board of Directors may also hold other regular meetings at
such time or times and at such place or places as shall be designated by the
Board of Directors from time to time. Notice of regular meetings of the Board of
Directors need not be given.
SECTION 3.5 Special Meetings. Special meetings of the Board of
Directors may be called by (i) the Chairman of the Board or (ii) the Secretary,
if requested to do so by a majority of the members of the Board of Directors.
Notice shall be sent to the last known address of each director, by mail,
telegram, cable or telex, at least two days before the meeting, or oral notice
may be substituted for such written notice if received not later than the day
preceding such meeting, and the place and time of such special meeting shall be
as designated in the notice of such meetings.
SECTION 3.6 Quorum. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, at all meetings of the Board of
Directors a majority of the total number of directors in office shall constitute
a quorum for the transaction of business, and the vote of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until
quorum shall be present.
SECTION 3.7 Conduct of Meetings of the Board of Directors. The Board of
Directors may, in its discretion, elect from among its members a Chairman of the
Board, who may, but need not be, an officer of the Corporation. A person elected
as Chairman of the Board shall serve in such capacity for such term as is
specified by the Board of Directors at the time of his or her election. At each
meeting of the Board of Directors, the Chairman of the Board or, in his or her
absence, any other director chosen by a majority of the directors present, shall
preside and act as chairman of the meeting. The Secretary or, in his or her
absence, any other person whom the chairman of the meeting shall appoint, shall
act as secretary of such meeting and keep the minutes thereof.
SECTION 3.8 Meetings by Telephone Conference. Members of the Board of
Directors of the Corporation may participate in a meeting of such Board of
Directors or a committee thereof by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Section 3.8 shall constitute presence in person at such meeting.
SECTION 3.9 Action by Written Consent. Except as otherwise provided by
the Certificate of Incorporation, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting if all members of the Board of Directors or committee,
as the case may be, consent thereto in writing setting forth the action so
taken, and the writing or writings are filed with the minutes of proceedings of
the Board of Directors or committee.
SECTION 3.10 Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
or more committees, each committee to consist of one or more of the directors of
the Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or she or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors
establishing such committee, shall have and may exercise all the powers and
authority of the Board of Directors in the management of
B-2 - 6
the business and affairs of the Corporation. Notwithstanding the foregoing, no
committee shall have the power or authority to take any of the following
actions:
(a) amend the Certificate of Incorporation (except that a
committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of any series
of capital stock of the Corporation adopted by the Board of
Directors as permitted by the General Corporation Law of the
State of Delaware as set forth in Title 8 of the Delaware Code
(the "DGCL"), fix the designations and any of the preferences
or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation or
the conversion into, or the exchange of such shares for,
shares of any other class or classes or any other series of
the same or any other class or classes of stock of the
Corporation or fix the number of shares of any series of stock
or authorize the increase or decrease of the shares of any
series);
(b) adopt an agreement of merger or consolidation under the DGCL;
(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 the Bylaws of the Corporation.
In addition, unless the resolution of the Board of Directors
designating the committee expressly so provides, no such committee shall have
the power or authority to take any of the following actions:
(i) declare a dividend;
(ii) authorize the issuance of stock; or
(iii) adopt a certificate of ownership and merger pursuant to the
DGCL.
Each committee shall keep regular minutes of its meetings and report
the same to the Board of Directors when required.
SECTION 3.11 Interested Directors. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or the committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof or the stockholders. Interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
B-2 - 7
SECTION 3.12 Resignation. Any director of the Corporation may resign at
any time by giving written notice of his resignation to the President or the
Secretary. Such resignation shall take effect at the date of receipt of such
notice by the President or the Secretary, or at any later time specified
therein. Unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 3.13 Compensation of Directors. The directors shall receive
such compensation for their services as the Board of Directors may from time to
time determine. No director shall be prevented from receiving compensation for
his services as a director by reason of the fact that he is also an officer of
the Corporation. All directors shall be reimbursed for their reasonable expenses
of attendance at each regular or special meeting of the Board of Directors.
Members of any committee of directors may be allowed like compensation and
reimbursement for expenses for serving as members of any such committee and for
attending committee meetings.
ARTICLE IV
OFFICERS
SECTION 4.1 General. The officers of the Corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary and a
Treasurer. The Board of Directors, in its discretion, may also elect a Chief
Executive Officer, one or more Vice Presidents (including Executive Vice
Presidents and Senior Vice Presidents), Assistant Secretaries, Assistant
Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or
these Bylaws. The officers of the Corporation need not be stockholders or
directors of the Corporation.
SECTION 4.2 Election and Terms. The Board of Directors at its first
meeting held after each annual meeting of stockholders shall elect the officers
of the Corporation, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors; and all officers of the Corporation shall hold
office until their successors are chosen and qualified or until their earlier
resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors.
SECTION 4.3 Salaries. The salaries of all officers of the Corporation
shall be fixed by the Board of Directors and may be altered from time to time,
except as otherwise provided by contract. No officer shall be prevented from
receiving a salary solely be reason of the fact that he is also a director.
SECTION 4.4 Chief Executive Officer and President. The Chief Executive
Officer, or if there be none, the President shall be the chief executive officer
of the Corporation. Subject to the supervision of the Board of Directors, the
Chief Executive Officer and, subject to the supervision of the Chief Executive
Officer, the President shall have general charge of the business, affairs and
property of the Corporation and shall have control over its officers, agents,
and employees. The President shall see that all orders and resolutions of the
Board of Directors and the Chief Executive Officer are carried into effect.
Either the Chief Executive Officer or the President may execute and deliver
certificates for shares of the Corporation, any deeds, mortgages, bonds,
contracts or other instruments that the Board of Directors has authorized to be
executed and delivered, except where required or permitted by law to be
otherwise executed and delivered and except that the other officers of the
Corporation may execute and deliver documents when authorized to do so by these
Bylaws, the Board of Directors or the President. The Chief Executive Officer and
the President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him or her by these Bylaws or by
the Board of Directors.
B-2 - 8
SECTION 4.5 Vice Presidents. Each Vice President shall perform such
duties and have such other powers as the Board of Directors from time to time
may prescribe. Certain Vice Presidents may from time to time be designated by
the Board of Directors as Executive Vice Presidents or Senior Vice Presidents,
which positions shall have such varying degrees of authority as the Board of
Directors shall prescribe.
SECTION 4.6 Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors, under
whose supervision he or she shall act. If the Secretary shall be unable or shall
refuse to cause to be given notice of all meetings of the stockholders and
special meetings of the Board of Directors, and if there be no Assistant
Secretary, then the Board of Directors may choose another officer to cause such
notice to be given. The Secretary shall have custody of the seal of the
Corporation and the Secretary or an Assistant Secretary, if there be one, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by the signature of the Secretary or by the
signature of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his or her signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records
required by law to be kept or filed are properly kept or filed, as the case may
be.
SECTION 4.7 Treasurer. The Treasurer shall be the chief financial
officer of the Corporation and shall have custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the Board of Directors, at its regular meeting, or when the Board of Directors
so requires, an account of all his or her transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors,
the Treasurer shall give the Corporation a bond in such sum and with such surety
or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his or her office and for the restoration to the
Corporation, in case of his or her death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his or her possession or under his or her control belonging to
the Corporation.
SECTION 4.8 Assistant Secretaries. Except as may be otherwise provided
in these Bylaws, Assistant Secretaries, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the President, any Vice President, if there be one, or the
Secretary, and in the absence of the Secretary or in the event of his or her
disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
SECTION 4.9 Assistant Treasurers. Assistant Treasurers, if there be
any, shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the President, any Vice President,
if there be one, or the Treasurer, and in the absence of the Treasurer or in the
event of his or her disability or refusal to act, shall perform the duties of
the Treasurer, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the Treasurer. If required by the Board of
Directors, an Assistant Treasurer shall give the Corporation a bond in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his or her office and
for the restoration to the Corporation, in case of his or her death,
B-2 - 9
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his or her possession or under his
or her control belonging to the Corporation.
SECTION 4.10 Other Officers. Such other officers as the Board of
Directors may appoint shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
SECTION 4.11 Delegation of Authority. In the case of the absence of any
officer of the Corporation or for any other reason that the Board of Directors
may deem sufficient, the Board of Directors may delegate some or all of the
powers or duties of such officer to any other officer or to any director,
employee, stockholder or agent for whatever period of time the Board of
Directors determines is necessary or appropriate.
SECTION 4.12 Removal. Any officer may be removed, either with or
without cause, by the affirmative vote of a majority of the Board of Directors,
or, except in the case of any officer elected by the Board of Directors, by any
officer upon whom the powers of removal may be conferred by the Board of
Directors.
SECTION 4.13 Resignation. Any officer of the Corporation may resign at
any time by giving written notice of his resignation to the Corporation. Such
resignation shall take effect at the date of receipt of such notice by the
Corporation, or at any later time specified therein. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
ARTICLE V
STOCK AND STOCK CERTIFICATES
SECTION 5.1 Certificates Evidencing Shares. Every holder of stock in
the Corporation shall be entitled to have a certificate evidencing the number of
shares owned by such holder signed by or in the name of the Corporation by (i)
the President or a Vice President and (ii) the Secretary or an Assistant
Secretary.
SECTION 5.2 Transfer Agents and Registrars. The Board of Directors may
appoint, or authorize any officer or officers to appoint, one or more transfer
agents and one or more registrars.
SECTION 5.3 Signatures. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or an employee thereof or (ii) a
registrar other than the Corporation or an employee thereof, any other signature
on the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such certificate may be issued by the
Corporation with the same effect as if such officer, transfer agent or registrar
continued to discharge said office or function at the date of issuance.
SECTION 5.4 Lost, Stolen or Destroyed Stock Certificates. The
Corporation may issue a new stock certificate in place of any certificate
theretofore issued by it which is alleged to have been lost, stolen or destroyed
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing such
issuance of a new certificate or certificates, the Board of Directors may, in
its discretion and as a condition precedent to the issuance thereof, require
that the owner of such lost, stolen or destroyed certificate or certificates, or
his legal representative give the Corporation a bond sufficient to indemnify the
Corporation against any claim that may be made
B-2 - 10
against the Corporation on account of the alleged loss, theft or destruction of
any such certificate or the issuance of such new certificate.
SECTION 5.5 Transfers. Stock of the Corporation shall be transferable
in the manner prescribed by law and in these Bylaws. Transfers of stock shall be
made on the books of the Corporation only by the person named in the certificate
or by his or her attorney lawfully constituted in writing and upon the surrender
of the certificate therefor, which shall be cancelled before a new certificate
shall be issued.
SECTION 5.6 Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to express consent to corporate action
in writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of 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, which shall not be more then 60 days nor less than ten days
before the date of such meeting, nor more than 60 days prior to any other
action. A determination of stockholders of record entitled to notice or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
SECTION 5.7 Registered Stockholders. Except as otherwise required by
law, the Corporation shall be entitled to recognize the exclusive right of the
person registered on its books as the owner of shares to receive dividends in
respect of such shares and to vote as the owner thereof, and shall not be bound
to recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have notice thereof.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1 General. The Corporation shall indemnify, and advance
Expenses (as this and all other capitalized words used in this Article VI and
not otherwise defined shall have the respective meanings set forth in Section
6.14) to, each Indemnitee to the fullest extent permitted by applicable law in
effect on the date of the adoption of these Bylaws, and to such greater extent
as applicable law may thereafter permit. The rights of an Indemnitee provided
under the preceding sentence shall include, but not be limited to, the right to
be indemnified to the fullest extent permitted by Section 145(b) of the DGCL in
the case of Proceedings by or in the right of the Corporation and to the fullest
extent permitted by Section 145(a) of the DGCL in the case of all other
Proceedings. The provisions set forth below in this Article VI are provided in
furtherance, and not by way of limitation, of the obligations expressed in this
Section 6.1.
SECTION 6.2 Expenses Related to Proceedings. If an Indemnitee is, by
reason of his or her Corporate Status, a witness in or a party to and is
successful, on the merits or otherwise, in any Proceeding, he or she shall be
indemnified against all Expenses actually and reasonably incurred by him or her
or on his or her behalf in connection therewith. If an Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as
to any Matter in such Proceeding, the Corporation shall indemnify such
Indemnitee against all Expenses actually and reasonably incurred by him or her
or on his or her behalf relating to such Matter. The termination of any Matter
in such a Proceeding by dismissal, with or without prejudice, shall be deemed to
be a successful result as to such Matter.
SECTION 6.3 Advancement of Expenses. To the fullest extent permitted by
Section 145(e) of the DGCL, each Indemnitee shall be entitled to payment of, and
the Corporation shall pay, Expenses in
B-2 - 11
advance of the final disposition of any Proceeding within ten days after receipt
by the Corporation of a written notice requesting the advancement of such
Expenses, which notice shall contain an undertaking by or on behalf of such
Indemnitee to repay such amount if it shall ultimately be determined that he or
she is not entitled to be indemnified by the Corporation as authorized by
Section 145 of the DGCL.
SECTION 6.4 Request for Indemnification. To obtain indemnification
hereunder, an Indemnitee shall submit to the Corporation a written request with
such information pertinent to such request as is reasonably available to the
Indemnitee. The Secretary of the Corporation shall promptly advise the Board of
Directors of any such request.
SECTION 6.5 Determining Entitlement to Indemnification Prior to a
Change of Control. If a Change of Control has not occurred prior to or at the
time a request for indemnification hereunder is submitted to the Corporation, an
Indemnitee's entitlement to indemnification shall be determined in accordance
with Section 145(d) of the DGCL. If entitlement to indemnification is to be
determined by Independent Counsel, the Corporation shall furnish notice to the
Indemnitee within ten days after receipt of the request for indemnification,
specifying the identity and address of Independent Counsel. The Indemnitee may,
within 14 days after receipt of such written notice of selection, deliver to the
Corporation a written objection to such selection. Such objection may be
asserted only on the ground that the Independent Counsel so selected does not
meet the requirements of Independent Counsel and the objection shall set forth
with particularity the factual basis of such assertion. If there is an objection
to the selection of Independent Counsel, either the Corporation or the
Indemnitee may petition the Court of Chancery of the State of Delaware or any
other court of competent jurisdiction for a determination that the objection is
without a reasonable basis or for the appointment of Independent Counsel
selected by the court.
SECTION 6.6 Determining Entitlement to Indemnification After a Change
of Control. If a Change of Control has occurred prior to or at the time a
request for indemnification hereunder is submitted to the Corporation, an
Indemnitee's entitlement to indemnification shall be determined in a written
opinion of Independent Counsel selected by the Indemnitee. The Indemnitee shall
give the Corporation written notice advising of the identity and address of the
Independent Counsel so selected. The Corporation may, within seven days after
receipt of such written notice of selection, deliver to the Indemnitee a written
objection to such selection. The Indemnitee may, within five days after the
receipt of such objection from the Corporation, submit the name of another
Independent Counsel and the Corporation may, within seven days after receipt of
such written notice of selection, deliver to Indemnitee a written objection to
such selection. Any objection is subject to the limitations set forth in Section
6.5. The Indemnitee may petition the Court of Chancery of the State of Delaware
or any other court of competent jurisdiction for a determination that the
Corporation's objection to any selection of Independent Counsel is without a
reasonable basis or for the appointment as Independent Counsel of a person
selected by the court.
SECTION 6.7 Procedures of Independent Counsel. If a Change of Control
has occurred prior to or at the time the request for indemnification hereunder
is submitted to the Corporation, an Indemnitee shall be presumed (except as
otherwise expressly provided in this Article VI) to be entitled to
indemnification upon submission of a request for indemnification in accordance
with Section 6.4, and thereafter the Corporation shall have the burden of proof
to overcome the presumption in reaching a determination contrary to the
presumption. The presumption shall be used by Independent Counsel as a basis for
a determination of entitlement to indemnification unless the Corporation
provides information sufficient to overcome such presumption by clear and
convincing evidence or the investigation, review and analysis of Independent
Counsel convinces him or her by clear and convincing evidence that the
presumption should not apply.
B-2 - 12
Except where the determination of entitlement to indemnification is to
be made by Independent Counsel, if the person or persons empowered under Section
6.5 or 6.6 to determine entitlement to indemnification shall not have made and
furnished to the Indemnitee in writing a determination within 60 days after
receipt by the Corporation of the request therefor, the requisite determination
of entitlement to indemnification shall be deemed to have been made and the
Indemnitee shall be entitled to such indemnification unless the Indemnitee
knowingly misrepresented a material fact in connection with the request for
indemnification. The termination of any Proceeding or of any Matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not (except as otherwise expressly provided in this
Article VI) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that (a) the Indemnitee did not act in
good faith and in a manner that he or she reasonably believed, in the case of
conduct in his or her official capacity as a director of the Corporation, to be
in the best interests of the Corporation, or, in all other cases, that at least
his or her conduct was not opposed to the Corporation's best interests, or (b)
with respect to any criminal Proceeding, the Indemnitee had reasonable cause to
believe that his or her conduct was unlawful.
SECTION 6.8 Expenses of Independent Counsel. The Corporation shall pay
any and all reasonable fees and expenses of Independent Counsel acting pursuant
to this Article VI and in any proceeding to which it is a party or witness in
respect of its investigation and written report and shall pay all reasonable
fees and expenses incident to the procedures in which such Independent Counsel
was selected or appointed. No Independent Counsel may serve if a timely
objection has been made to his or her selection until a court has determined
that such objection is without a reasonable basis.
SECTION 6.9 Trial De Novo. In the event that (a) a determination is
made pursuant to Section 6.5 or 6.6 that an Indemnitee is not entitled to
indemnification under this Article VI, (b) advancement of Expenses is not timely
made pursuant to Section 6.3, (c) Independent Counsel has not made and delivered
a written opinion determining the request for indemnification (i) within 90 days
after being appointed by a court, (ii) within 90 days after objections to his or
her selection have been overruled by a court or (iii) within 90 days after the
time for the Corporation or the Indemnitee to object to his or her selection or
(d) payment of indemnification is not made within five days after a
determination of entitlement to indemnification has been made or deemed to have
been made pursuant to Section 6.5, 6.6 or 6.7, the Indemnitee shall be entitled
to an adjudication in any court of competent jurisdiction of his or her
entitlement to such indemnification or advancement of Expenses. In the event
that a determination shall have been made that the Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 6.9 shall be conducted in all respects as a de novo trial on the
merits, and Indemnitee shall not be prejudiced by reason of that adverse
determination. If a Change of Control shall have occurred, in any judicial
proceeding commenced pursuant to this Section 6.9, the Corporation shall have
the burden of proving that the Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be. If a determination shall have been
made or deemed to have been made that the Indemnitee is entitled to
indemnification, the Corporation shall be bound by such determination in any
judicial proceeding commenced pursuant to this Section 6.9, or otherwise, unless
the Indemnitee knowingly misrepresented a material fact in connection with the
request for indemnification.
The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 6.9 that the procedures and
presumptions of this Article VI are not valid, binding and enforceable and shall
stipulate in any such court that the Corporation is bound by all provisions of
this Article VI. In the event that an Indemnitee, pursuant to this Section 6.9,
seeks a judicial adjudication to enforce his or her rights under, or to recover
damages for breach of, this Article VI, the Indemnitee shall be entitled to
recover from the Corporation, and shall be indemnified by the Corporation
against, any and all Expenses actually and reasonably incurred by him or her in
such judicial adjudication, but only if he or she prevails therein. If it shall
be determined in such judicial adjudication that an Indemnitee is entitled to
receive part but not all of the indemnification or advancement of Expenses
sought, the Expenses incurred by the Indemnitee in connection with such judicial
adjudication or arbitration shall be appropriately prorated.
B-2 - 13
SECTION 6.10 Non-Exclusivity. The rights of indemnification and to
receive advancement of Expenses provided by this Article VI shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Certificate of Incorporation, these Bylaws, any
agreement, vote of stockholders, resolution of the Board of Directors or
otherwise. The provisions of this Article VI shall continue as to an Indemnitee
whose Corporate Status has ceased and shall inure to the benefit of his or her
heirs, executors and administrators.
SECTION 6.11 Insurance and Subrogation. To the extent the Corporation
maintains an insurance policy or policies providing liability insurance for
directors or officers of the Corporation or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person serves at the request of the Corporation, each Indemnitee
shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of coverage available for any such director or
officer under such policy or policies.
In the event of any payment hereunder, the Corporation shall be
subrogated to the extent of such payment to all the rights of recovery of the
Indemnitee, who shall execute all papers required and take all action necessary
to secure such rights, including execution of such documents as are necessary to
enable the Corporation to bring suit to enforce such rights.
The Corporation shall not be liable under this Article VI to make any
payment of amounts otherwise indemnifiable hereunder if, and to the extent that,
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
SECTION 6.12 Severability. If any provision or provisions of this
Article VI shall be held to be invalid, illegal or unenforceable for any reason
whatsoever, the validity, legality and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired thereby; and, to
the fullest extent permitted by law, the provisions of this Article VI shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
SECTION 6.13 Certain Persons Not Entitled to Indemnification. Subject
to the provisions of Section 6.9, no person shall be entitled to indemnification
or advancement of Expenses under this Article VI with respect to any Proceeding,
or any Matter therein, brought or made by such person against the Corporation.
SECTION 6.14 Definitions. As used in this Article VI, the terms set
forth below shall have the following respective meanings:
"Affiliate" means, with respect to any person, any other person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such person.
"Change of Control" means the occurrence after __________ ___, 2003(8)
of any of the following events: (a) an event required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar
item or any similar schedule or form) promulgated under the Exchange Act,
whether or not the Corporation is then subject to such reporting requirement;
(b) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) shall become the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Corporation representing 50% or more of the combined voting power of the then
outstanding voting securities of the
----------
(8) The date of the spin-off.
B-2 - 14
Corporation without prior approval of at least two-thirds of the members of the
Board of Directors in office immediately prior to such person's attaining such
percentage interest; or (c) the Corporation is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board of Directors in office immediately
prior to such transaction or event constitute less than a majority of the Board
of Directors thereafter.
"Corporate Status" describes the status of (i) an individual who is or
was a director or officer of the Corporation, (ii) an individual who is an
employee or agent of the Corporation (who is not also director or officer of the
Corporation), if the Board of Directors adopts a resolution that specifically
states that such employee or agent shall be entitled to the benefits of this
Article VI to the same extent as if he were an officer or director, or (iii) an
individual identified in clause (i) or (ii) above who is serving at the request
of the Corporation as a director, officer or administrator of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise.
"Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating or being or preparing to be a witness in a
Proceeding.
"Indemnitee" includes any person who is, or is threatened to be made, a
witness in or a party to any Proceeding as described in Section 6.1 or 6.2 by
reason of his or her Corporate Status.
"Independent Counsel" means a law firm, or member of a law firm, that
is experienced in matters of corporation law and neither presently is, nor in
the five years prior to his or her selection or appointment has been, retained
to represent: (a) the Corporation or the Indemnitee in any matter material to
either such party, (b) any other party to the Proceeding giving rise to a claim
for indemnification hereunder or (c) the beneficial owner, directly or
indirectly, of securities of the Corporation representing 5% or more of the
combined voting power of the then outstanding voting securities of the
Corporation.
"Matter" is a claim, a material issue or a substantial request for
relief.
"Proceeding" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative, except one
initiated by an Indemnitee pursuant to Section 6.9 to enforce his or her rights
under this Article VI.
SECTION 6.15 Notices. Any notice or other communication required or
permitted to be sent to the Corporation pursuant to this Article VI shall be
addressed to the Secretary of the Corporation and any such notice or other
communication to an Indemnitee shall be given in writing by depositing the same
in the United States mail, with postage thereon prepaid, addressed to the person
to whom such notice is directed at the address of such person on the records of
the Corporation, and such notice shall be deemed given at the time when the same
shall be so deposited in the United States mail.
SECTION 6.16 Contractual Rights. The right to be indemnified and to the
advancement or reimbursement of Expenses in accordance with this Article VI (i)
is a contract right based upon good and valuable consideration, pursuant to
which Indemnitee may xxx as if these provisions were set forth in a separate
written contract between him or her and the Corporation, (ii) is and is intended
to be retroactive and shall be available as to events occurring prior to the
adoption of these provisions and (iii) shall continue after any rescission or
restrictive modification of such provisions as to events occurring prior to such
rescission or modification.
B-2 - 15
ARTICLE VII
NOTICES
SECTION 7.1 Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws to be given to any director, member
of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it
appears on the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice may also be given personally
or by telegram, telecopy, telex or cable and such notice shall be deemed given
at the time when the same is sent.
SECTION 7.2 Waiver of Notice. Whenever notice is required by law, the
Certificate of Incorporation or these Bylaws to be given to any director, member
of a committee or stockholder, a written waiver, signed by the person entitled
to notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting of stockholders, in
person or by proxy, or at a meeting of the Board of Directors or committee
thereof shall constitute a waiver of notice of such meeting, except when the
person attends such meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders,
directors, or members of a committee of directors need be specified in any
written waiver of notice unless so required by the Certificate of Incorporation
or these Bylaws.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 Amendments by Stockholders. These Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted, by the
affirmative vote of the holders of record of at least 66?% of the combined
voting power of all the outstanding stock of the Corporation entitled to vote in
respect thereof, voting together as a single class.
SECTION 8.2 Amendments by Directors. These Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted, by
action of a majority of directors then in office.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1 Fiscal Year. The fiscal year of the Corporation shall end
on the 31st day of March of each year, unless otherwise provided by resolution
of the Board of Directors.
SECTION 9.2 Disbursements. All checks or demands for money and notes of
the Corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
SECTION 9.3 Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal Delaware." The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced.
B-2 - 16
