CONTRIBUTION AGREEMENT
THIS
CONTRIBUTION AGREEMENT (this “Contribution Agreement”), dated as of March 16,
2007, is made and entered into by and among Xxxxxxx Newco Corporation, a
Delaware corporation ( the “Purchaser”), Xxxxxxxxx X. Xxxxxxx, Xxxxxxx Asset
Management, L.P., The Non-Exempt Trust FBO Xxxxxxxx Xxxxxxx, The Xxxxxx X.
Xxxxxxx Xx. Separate Property Trust, The Annual Exclusion Trust FBO Xxxxxxxx
Xxxxxxx, The Xxxxxxx Family Generation Skipping Trust U/T/A Dtd. 12/04/91,
and
The Marital Trust Under The Xxxxxx X. Xxxxxxx Trust. (Xxxxxxxxx X. Xxxxxxx,
Xxxxxxx Asset Management, The Non-Exempt Trust FBO Xxxxxxxx Xxxxxxx, The Xxxxxx
X. Xxxxxxx Xx. Separate Property Trust, The Annual Exclusion Trust FBO Xxxxxxxx
Xxxxxxx, The Xxxxxxx Family Generation Skipping Trust U/T/A Dtd. 12/04/91,
and
The Marital Trust Under The Xxxxxx X. Xxxxxxx Trust are referred to herein
collectively as the “Continuing Stockholders” and individually as a “Continuing
Stockholder.”)
RECITALS:
WHEREAS,
in connection with the settlement of Franklin
Balance Sheet Investment Fund x. Xxxxxxx (the
“Settlement”), the Purchaser will commence a cash tender offer (the “Offer”) to
purchase all of the issued and outstanding shares of common stock, par value
$0.01 per share (the “Common Stock”), of Xxxxxxx Maritime Corporation (“Xxxxxxx
Maritime”) that are tendered and not withdrawn upon the expiration of the Offer
at a purchase price of $2,990 per share of Common Stock;
WHEREAS,
if the conditions to the Offer are satisfied or waived, the Purchaser will
merge
with and into Xxxxxxx Maritime (the “Merger”) pursuant to a certificate of
ownership and merger;
WHEREAS,
as of the date hereof, each Continuing Stockholder is the record owner of the
number of shares of Common Stock, Class N common shares, par value $.01 per
share (“Class N”), and/or Series A Junior Convertible Preferred Stock, par value
$100 per share (“Series A Preferred”) set forth opposite such Continuing
Stockholder’s name on Schedule II hereto. (The shares of Common Stock, Class N
and Series A Preferred are referred to herein collectively as the
“Shares”);
WHEREAS,
to allow the Settlement to be executed and the Offer to be undertaken, each
Continuing Stockholder has agreed that it will contribute all of its Shares
to
the Purchaser in exchange for the equity interest in the Purchaser provided
herein;
WHEREAS,
pursuant to a contribution agreement (the “Plan Contribution Agreement”), by and
among the Purchaser and the Plans (as defined below), each Plan (as defined
below) has agreed to contribute all of its shares of Common Stock to the
Purchaser in exchange for the equity interest in the Purchaser set forth in
the
Plan Contribution Agreement, in order to allow the Settlement to be executed
and
the Offer to be undertaken. (The Xxxxxxx Maritime Corporation Retirement Stock
Plan, the Xxxxxxx Maritime Corporation Stock Savings Plan and the Xxxxxxx
Maritime Corporation Employee Stock Ownership Plan are referred to herein
collectively as the “Plans” and individually as a “Plan”);
WHEREAS,
the certificate of incorporation (the “Certificate of Incorporation”) of
Purchaser is attached hereto as Exhibit A; and
WHEREAS,
the by-laws of the Purchaser are attached hereto as Exhibit B.
NOW,
THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as
follows:
1. Contribution
of Shares.
(a) The
Contribution.
Subject
to the satisfaction of the conditions of the Offer or the waiver of such
conditions, and at such time as the Purchaser accepts for payment the shares
of
Common Stock properly tendered and not withdrawn, each Continuing Stockholder
shall contribute all of its Shares (including in the definition of Shares for
this purpose any shares of capital stock of Xxxxxxx Maritime hereafter acquired
by such Continuing Stockholders) to the Purchaser in exchange for the numbers
of
shares of common stock par value $0.01 per share of the Purchaser (“Purchaser
Common Stock”) and, if applicable, the Class N common stock, par value $0.01 per
share of Purchaser (“Purchaser Class N”) set forth opposite such Continuing
Stockholder’s name on Schedule III hereto, as such numbers of shares of
Purchaser Common Stock and Purchaser Class N shall be increased to reflect
any
acquisitions of Common Stock and Class N by such Continuing Stockholder between
the date hereof and such time. (The shares of Purchaser Common Stock and
Purchaser Class N are referred to herein collectively as the “Purchaser
Shares”).
(b) The
Closing.
Such
contribution and exchange are hereinafter referred to as the “Closing” and the
date and time thereof as the “Closing Date.” At the Closing, each Continuing
Stockholder shall deliver to the Purchaser a certificate or certificates
representing all of its Shares, together with an equal number of stock powers,
endorsed in blank. At the Closing, Purchaser shall deliver to each Continuing
Stockholder a certificate or certificates representing the Purchaser Shares,
in
such denominations as the respective Continuing Stockholder shall
request.
2. Representations
and Warranties of Each Continuing Stockholder.
Each
Continuing Stockholder, severally and not jointly, hereby represents and
warrants to the Purchaser as follows:
(a) Power
and Authority.
Such
Continuing Stockholder has all necessary power and authority to execute and
deliver this Contribution Agreement and to consummate the transactions
contemplated hereby. This Contribution Agreement has been duly and validly
authorized, executed and delivered by such Continuing Stockholder and, assuming
its due authorization, execution and delivery by each other party hereto,
constitutes a legal, valid and binding obligation of such Continuing
Stockholder, enforceable against such Continuing Stockholder in accordance
with
its terms.
(b) Reliance
by Purchaser.
Such
Continuing Stockholder understands and acknowledges that the Purchaser is
executing the Settlement and making the Offer in reliance upon such Continuing
Stockholder’s execution and delivery of this Contribution
Agreement.
-2-
(c) Securities
Laws.
Such
Continuing Stockholder will acquire the Purchaser Shares set forth opposite
the
name of such Continuing Stockholder on Schedule III hereto for its account
for
the purpose of investment and not with a view to the distribution or resale
thereof. Such Continuing Stockholder has such knowledge and experience in
financial and business matters that such Continuing Stockholder is capable
of
evaluating the merits and risks of purchasing such Purchaser Shares. Such
Continuing Stockholder understands that such Purchaser Shares have not been
registered under the Securities Act of 1933, as amended (the “Securities Act”),
or under any state securities law or blue sky law of any jurisdiction (“Blue Sky
Law”) and, therefore, none of such Purchaser Shares can be sold, assigned,
transferred, pledged or otherwise disposed of without registration under the
Securities Act and under applicable Blue Sky Law unless an exemption from
registration thereunder is available. Such Continuing Stockholder shall not
sell, assign, transfer, pledge or otherwise dispose of any such shares (or
any
interest therein) without registration under the Securities Act and under
applicable Blue Sky Law, unless an exemption from registration thereunder is
available. The undersigned understands that the stock certificate evidencing
such Purchaser Shares will bear a legend to the effect of the
foregoing.
3. Restriction
on Transfer, Proxies, Etc.
Each
Continuing Stockholder covenants and agrees that such Continuing Stockholder
shall not (i) directly or indirectly, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to
the
offer for sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Shares or any interest therein; (ii) grant
any
proxies or powers of attorney, deposit any of the Shares into a voting trust
or
enter into a voting agreement with respect to any of the Shares; or (iii) take
any action that would make any representation or warranty of such Continuing
Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling such Continuing Stockholder from performing such
Continuing Stockholder’s obligations under this Contribution
Agreement.
4. Additional
Covenants.
The
Purchaser and each Continuing Stockholder agrees that at the time of the
contribution and exchange described in Section 1 hereof, the effective
certificate of incorporation of the Purchaser shall be in form and substance
identical to the Certificate of Incorporation attached hereto as Exhibit A
and
that, assuming the Plans have performed their obligations under the Plan
Contribution Agreement, the number of shares of Purchaser Common Stock and
the
number of shares of Purchaser Class N issued and outstanding and the record
owners thereof immediately following the contribution and exchange shall be
as
set forth in Schedule IV. Purchaser covenants and agrees that Purchaser’s
operations shall be limited to such activities as are necessary or appropriate
to consummate the Offer and the Merger and Purchaser shall not acquire any
assets or assume any liabilities which are not connected to or in furtherance
of
the Offer and the Merger
5. Miscellaneous.
(a) Further
Assurances.
From
time to time, at the Purchaser’s request and without further consideration, each
Continuing Stockholder shall execute, deliver and file such additional documents
and take all such further lawful action as may be necessary or desirable to
consummate and make effective, in the most expeditious manner practicable,
the
transactions contemplated by this Contribution Agreement, including, if and
to
the extent applicable,
-3-
executing,
delivering and filing any documents required to be filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder,
or
requested to be filed by the staff of the Securities and Exchange
Commission.
(b) Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed given if delivered personally, mailed, certified or registered mail
with
postage prepaid, sent by overnight courier or telecopied to the parties at
the
following addresses (or at such other address for a party as shall be specified
by like notice):
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(i)
|
if
to the Purchaser, to:
|
Xxxxxx
X.
Xxxxxxx, Xx.
Xxxxxxx
Newco Corporation
000
00xx
Xxxxxx
Xxxxx
0000
Xxxxxxx,
XX 00000
Facsimile
No.: (000) 000-0000
with
a
copy to:
Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP
The
Xxxxxx Building
000
Xxxxxx Xxxxxx
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxxxx X. Xxxxx, Esq.
Facsimile
No.: (000) 000-0000
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(ii)
|
if
to the Continuing Stockholders:
|
Xxxxxxxxx
X. Xxxxxxx
000
00xx
Xxxxxx
Xxxxx
0000
Xxxxxxx,
XX 00000
Facsimile
No.: (000) 000-0000
Xxxxxxx
Asset Management
Attn:
Xxxxxxxxx X. Xxxxxxx
000
00xx
Xxxxxx
Xxxxx
0000
Xxxxxxx,
XX 00000
Facsimile
No.: (000) 000-0000
-4-
The
Non-Exempt Trust FBO Xxxxxxxx Xxxxxxx
The
Xxxxxx X. Xxxxxxx Xx. Separate Property Trust
The
Annual Exclusion Trust FBO Xxxxxxxx Xxxxxxx
The
Xxxxxxx Family Generation Skipping Trust U/T/A Dtd. 12/04/91
000
00xx
Xxxxxx
Xxxxx
0000
Xxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxxx, Xx., Trustee
Facsimile
No.: (000) 000-0000
The
Marital Trust Under The Xxxxxx X. Xxxxxxx Trust
The
Mechanics Bank
Attn:
Xxxxx Xxxxxxxx
0000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Facsimile
No.: (000) 000-0000
(c) Interpretation.
When a
reference is made in this Contribution Agreement to a Section, such reference
shall be to a Section of this Contribution Agreement unless otherwise indicated.
The headings contained in this Contribution Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Contribution Agreement. Whenever the words “include,” “includes” or “including”
are used in this Contribution Agreement, they shall be deemed to be followed
by
the words “without limitation.”
(d) Counterparts.
This
Contribution Agreement may be executed in counterparts, all of which shall
be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to
the
other parties.
(e) Entire
Agreement; No Third-Party Beneficiaries.
This
Contribution Agreement, including the documents and instruments referred to
herein, (a) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to
the
subject matter hereof and (b) is not intended to confer upon any person or
entity other than the parties hereto any rights or remedies
hereunder.
(f) Governing
Law.
This
Contribution Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware, without regard to the conflict of laws rules
thereof.
(g) Assignment.
Neither
this Contribution Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties without the prior written
consent of the other parties.
-5-
(h) Severability.
If any
term or other provision of this Contribution Agreement is invalid, illegal
or
incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Contribution Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance
of
the transactions contemplated hereby are not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties shall negotiate
in good faith to modify this Contribution Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner
in
order that the transactions be consummated as originally contemplated to the
fullest extent possible.
(i) Enforcement
of this Contribution Agreement.
The
parties agree that irreparable damage would occur in the event that any of
the
provisions of this Contribution Agreement were not performed in accordance
with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Contribution Agreement and to enforce specifically the terms
and provisions hereof, this being in addition to any other remedy to which
they
are entitled at law or in equity.
6. Termination.
This
Contribution Agreement shall terminate, and no party shall have any rights
or
obligations hereunder and this Contribution Agreement shall become null and
void
and have no effect upon expiration or termination of the Offer (as the same
may
be extended) if the conditions of the Offer have not been satisfied or waived,
except that nothing in this Section 6 shall relieve any party of liability
for
breach of this Contribution Agreement.
[Remainder
of page intentionally left blank.]
-6-
IN
WITNESS WHEREOF, the Purchaser and each Continuing Stockholder have caused
this
Contribution Agreement to be duly executed as of the day and year first above
written.
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XXXXXXX
NEWCO CORPORATION
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By:
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/s/
Xxxxxx X. Xxxxxxx, Xx.
|
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Name:
|
Xxxxxx
X. Xxxxxxx, Xx.
|
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Title:
|
Chairman
of the Board
|
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XXXXXXXXX
X. XXXXXXX
|
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|
/s/
Xxxxxxxxx X. Xxxxxxx
|
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XXXXXXX
ASSET MANAGEMENT, L.P.
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By:
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/s/
Xxxxxxxxx X. Xxxxxxx
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Name:
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Xxxxxxxxx
X. Xxxxxxx
|
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Title:
|
General
Partner
|
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THE
NON-EXEMPT TRUST FBO XXXXXXXX XXXXXXX
|
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By:
|
/s/
Xxxxxx X. Xxxxxxx, Xx.
|
||
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Name:
|
Xxxxxx
X. Xxxxxxx, Xx.
|
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Title:
|
Trustee
|
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-7-
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THE
XXXXXX X. XXXXXXX XX SEPARATE PROPERTY TRUST
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By:
|
/s/
Xxxxxx X. Xxxxxxx, Xx.
|
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Name:
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Xxxxxx
X. Xxxxxxx, Xx.
|
||
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Title:
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Trustee
|
||
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THE
ANNUAL EXCLUSION TRUST FBO XXXXXXXX XXXXXXX
|
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By:
|
/s/
Xxxxxx X. Xxxxxxx, Xx.
|
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Name:
|
Xxxxxx
X. Xxxxxxx, Xx.
|
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Title:
|
Trustee
|
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THE
XXXXXXX FAMILY GENERATION-SKIPPING TRUST U/T/A DTD.
12/04/91
|
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By:
|
/s/
Xxxxxx X. Xxxxxxx, Xx.
|
||
|
Name:
|
Xxxxxx
X. Xxxxxxx, Xx.
|
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Title:
|
Trustee
|
||
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THE
MARITAL TRUST UNDER THE XXXXXX X. XXXXXXX TRUST
|
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By:
|
Mechanics
Bank,
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|
Trustee
|
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By:
|
/s/
Xxxxx Xxxxxxxx, V.P.
|
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Name:
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Xxxxx
Xxxxxxxx
|
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Title:
|
Trust
Officer
|
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By:
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/s/
Xxxxx X. Xxxxxxx
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Xxxxx
X. Xxxxxxx, Trustee
|
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-8-
Schedule
I
Xxxxxxxxx
X. Xxxxxxx
Xxxxxxx
Asset Management, L.P.
The
Non-Exempt Trust FBO Xxxxxxxx Xxxxxxx
The
Xxxxxx X. Xxxxxxx Xx. Separate Property Trust
The
Annual Exclusion Trust FBO Xxxxxxxx Xxxxxxx
The
Xxxxxxx Family Generation Skipping Trust U/T/A Dtd. 12/04/91
The
Xxxxxxx Maritime Corporation Employee Stock Ownership Plan
The
Xxxxxxx Maritime Corporation Retirement Stock Plan
The
Xxxxxxx Maritime Corporation Stock Savings Plan
The
Marital Trust Under The Xxxxxx X. Xxxxxxx Trust
Schedule
II
|
Name
|
Shares
of Common Stock
|
|
Xxxxxxxxx
X. Xxxxxxx
|
684
|
|
Xxxxxxx
Asset Management, L.P.
|
4,355
|
|
The
Non-Exempt Trust FBO Xxxxxxxx Xxxxxxx
|
1,896
|
|
The
Xxxxxx X. Xxxxxxx Xx. Separate Property Trust
|
2,189
|
|
The
Annual Exclusion Trust FBO Xxxxxxxx Xxxxxxx
|
767
|
|
The
Xxxxxxx Family Generation Skipping Trust U/T/A Dtd. 12/04/91
|
1,500
|
|
The
Marital Trust Under The Xxxxxx X. Xxxxxxx Trust
|
32,601
|
|
Name
|
Shares
of Class N
|
|
The
Marital Trust Under The Xxxxxx X. Xxxxxxx Trust
|
46,138
|
|
Name
|
Shares
of Series A Preferred
|
|
Xxxxxxx
Asset Management, L.P.
|
15,211
|
|
The
Xxxxxx X. Xxxxxxx Xx. Separate Property Trust
|
63,889
|
|
The
Xxxxxxx Family Generation Shipping Trust U/T/A Dtd.
12/04/91
|
9,846
|
|
The
Marital Trust Under The Xxxxxx X. Xxxxxxx Trust
|
225,848
|
Schedule
III
|
Name
|
Shares
of Purchaser Common Stock
|
|
Xxxxxxxxx
X. Xxxxxxx
|
684
|
|
Xxxxxxx
Asset Management, L.P. (1)
|
5,622
|
|
The
Non-Exempt Trust FBO Xxxxxxxx Xxxxxxx
|
1,896
|
|
The
Xxxxxx X. Xxxxxxx Xx. Separate Property Trust (1)
|
7,513
|
|
The
Annual Exclusion Trust FBO Xxxxxxxx Xxxxxxx
|
767
|
|
The
Xxxxxxx Family Generation Skipping Trust U/T/A Dtd. 12/04/91 (1)
|
2,320
|
|
The
Marital Trust Under The Xxxxxx X. Xxxxxxx Trust (1)
|
31,478
|
|
Name
|
Shares
of Purchaser Class N
|
|
The
Marital Trust Under The Xxxxxx X. Xxxxxxx Trust
|
66,282
|
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(1)
|
Number
will be increased by a number of whole shares equal to the number
determined by dividing (1) the amount of the accrued but unpaid dividends
on the existing Xxxxxxx Maritime, Series A Junior Convertible Preferred
Stock, par value $100 per share, on the Closing Date by (2)
$1,200.
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Schedule
IV
|
Name
|
Shares
of Purchaser Common Stock
|
|
Xxxxxxxxx
X. Xxxxxxx
|
684
|
|
Xxxxxxx
Asset Management, L.P. (1)
|
5,622
|
|
The
Non-Exempt Trust FBO Xxxxxxxx Xxxxxxx
|
1,896
|
|
The
Xxxxxx X. Xxxxxxx Xx. Separate Property Trust (1)
|
7,513
|
|
The
Annual Exclusion Trust FBO Xxxxxxxx Xxxxxxx
|
767
|
|
The
Xxxxxxx Family Generation Skipping Trust U/T/A Dtd. 12/04/91 (1)
|
2,320
|
|
The
Xxxxxxx Maritime Corporation Employee Stock Ownership Plan
(2)
|
3,003
|
|
The
Xxxxxxx Maritime Corporation Retirement Stock Plan (2)
|
8,089
|
|
The
Xxxxxxx Maritime Corporation Stock Savings Plan (2)
|
3,503
|
|
The
Marital Trust Under The Xxxxxx X. Xxxxxxx Trust (1)
|
31,478
|
|
Name
|
Shares
of Purchaser Class N
|
|
The
Marital Trust Under The Xxxxxx X. Xxxxxxx Trust
|
66,282
|
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(1)
|
Number
will be increased by a number of whole shares equal to the number
determined by dividing (1) the amount of the accrued but unpaid dividends
on the existing Xxxxxxx Maritime, Series A Junior Convertible Preferred
Stock, par value $100 per share, on the Closing Date by (2)
$1,200.
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(2)
|
Reflects
an increase in shares to be owned by each Plan if the Offer is
successfully completed and the contributions effected. Assumes no
repurchases of shares from Plan participants prior to the date of
contribution.
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Exhibit
A
Certificate
of Incorporation of Xxxxxxx Newco Corporation
[See
attached]
A-1
CERTIFICATE
OF INCORPORATION OF
XXXXXXX
NEWCO CORPORATION
I.
The
name
of the corporation is XXXXXXX NEWCO CORPORATION.
II.
The
address of the registered office of the corporation in the State of Delaware
is
Corporation Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, in the City
of
Xxxxxxxxxx, Xxxxxx xx Xxx Xxxxxx 00000. The name of its registered agent at
such
address is Corporation Service Company.
III.
The
nature of the business or purpose to be conducted or promoted 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.
IV.
A. The
total
number of shares of stock which the corporation shall have the authority to
issue is 200,000, of which 100,000 shares shall be designated Common Stock,
$.01
par value per share (the “Common Stock”) and 100,000 shares shall be designated
as Class N Common Shares, $.01 par value per share (the “Class N
Common Shares”).
B. The
rights, preferences, privileges, restrictions and other matters relating to
the
Common Stock and the Class N Common Shares are as follows:
1.
Dividends.
The
holders of the Common Stock and the Class N Common Shares shall be entitled
to receive dividends when and as declared by the Board of Directors, out of
any
funds of the corporation at the time legally available for the declaration
of
dividends. With respect to the declaration and payment of dividends the Common
Stock and the Class N Common Shares shall be treated equally, on a share
for share basis, and dividends shall be declared and paid on the Common Stock
and the Class N Common Shares without preference or distinction as between
or among the Common Stock and the Class N Common Shares.
2.
Voting
Rights.
The
holders of the Common Stock shall have and possess the sole and exclusive right
to notice of stockholders’ meetings (except as required by law) and the sole and
exclusive voting rights and powers. The Class N Common Shares shall have no
voting rights whatsoever, except that the corporation may not, without the
consent of the holders of at least a majority of the Class N Common Shares
outstanding, given in person or by proxy, either in writing or by vote at a
meeting called for that purpose at which the holders of the Class N Common
Shares shall vote as a class, alter or change the powers, preferences,
privileges or rights given to the holders of the Class N Common Shares so
as to affect such class of stock adversely. The Class N Common Shares (if
required by law) shall also be entitled to notice of the time, place, and
purpose of any meeting called to approve any merger or consolidation of the
corporation, but
shall
have no voting rights in connection with such merger or consolidation of the
corporation unless the Class N Common Shares would be adversely affected
thereby.
3.
Liquidation.
In
the
event of any liquidation, dissolution, or winding up of the corporation, whether
voluntary or involuntary, the holders of the Common Stock and the Class N
Common Shares shall be entitled to receive ratably, on a share for share basis
without preference or distinction as between or among the Common Stock and
the
Class N Common Shares, all the remaining assets of the
corporation.
V.
A. The
business and affairs of the corporation shall be managed by or under the
direction of the Board of Directors of the corporation.
B. In
furtherance and not in limitation of the powers conferred by law, the Board
of
Directors shall have the power to make, alter, amend or repeal the By-laws
of
the corporation. Any By-laws made by the Board of Directors under the powers
conferred hereby may be altered, amended or repealed by the stockholders of
the
corporation entitled to vote.
C. The
number of directors constituting the whole Board of Directors shall be fixed
from time to time by the Board of Directors, but shall not be less than one
(1)
nor greater than ten (10).
D. No
director of the corporation shall be personally liable to the corporation or
any
stockholder for monetary damages for breach of fiduciary duty as a director,
except for (1) any matter in respect of which such director shall be liable
under Section 174 of the General Corporation Law of the State of Delaware,
(2)
any breach of the director’s duty of loyalty to the corporation or its
stockholders, (3) intentional acts or omissions not in good faith or which
involved misconduct or a knowing violation of law, or (4) any transaction from
which the director derived an improper personal benefit. Neither the amendment
nor repeal of this Paragraph D of Article V, nor the adoption of any
provision of this Certificate of Incorporation inconsistent with this
Paragraph D of Article V, shall eliminate or reduce the effect of this
Paragraph D of Article V in respect of any matter occurring, or any
cause of action, suit or claim that, but for this Paragraph D of
Article VI, would accrue or arise, prior to such amendment or repeal or
adoption of an inconsistent provision. If the Delaware General Corporation
Law
is hereafter amended to authorize the further elimination or limitation of
the
liability of a director, the liability of a director of the corporation shall
be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
E. Each
person who was or is made a party or is threatened to be made a party to or
is
in any way involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a “proceeding”), including any appeal therefrom, by reason of the
fact that he or she, or a person of whom he or she is the legal representative,
is or was a director or officer of the corporation or of a direct or indirect
subsidiary of the corporation, or is or was serving at the request of the
corporation as a director or officer of another entity or enterprise, or was
a
director or officer of a foreign or domestic corporation which was a predecessor
corporation of the corporation or of another entity or enterprise at the request
of such predecessor corporation, shall be indemnified and held harmless by
the
corporation, and the corporation shall advance all expenses incurred by any
such
person in defense of any such proceeding prior to its final determination,
to
the fullest extent authorized by the General Corporation Law of the State of
Delaware. In any proceeding against the corporation to enforce these rights,
such person shall be presumed to be entitled to indemnification and the
corporation shall have the burden of proving that such person has not met the
standards of conduct for permissible
2
indemnification
set forth in the General Corporation Law of the State of Delaware. The rights
to
indemnification and advancement of expenses conferred by this Article V
shall be presumed to have been relied upon by the directors and officers of
the
corporation in serving or continuing to serve the corporation and shall be
enforceable as contract rights. Said rights shall not be exclusive of any other
rights to which those seeking indemnification may otherwise be entitled. The
corporation may, upon written demand presented by a director or officer of
the
corporation or of a direct or indirect subsidiary of the corporation, or by
a
person serving at the request of the corporation as a director or officer of
another entity or enterprise, enter into contracts to provide such persons
with
specific rights to indemnification, which contracts may confer rights and
protections to the maximum extent permitted by the General Corporation Law
of
the State of Delaware, as amended and in effect from time to time.
1. If
a
claim under this Article V is not paid in full by the corporation within
sixty (60) days after a written claim has been received by the corporation,
the
claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expenses of prosecuting
such
claim. It shall be a defense to any such action (other than an action brought
to
enforce the right to be advanced expenses incurred in defending any proceeding
prior to its final disposition where the required undertaking, if any, has
been
tendered to the corporation) that the claimant has not met the standards of
conduct which make it permissible under the General Corporation Law of the
State
of Delaware for the corporation to indemnify the claimant for the amount
claimed, but the claimant shall be presumed to be entitled to indemnification
and the corporation shall have the burden of proving that the claimant has
not
met the standards of conduct for permissible indemnification set forth in the
General Corporation Law of the State of Delaware.
2. If
the
General Corporation Law of the State of Delaware is hereafter amended to permit
the corporation to provide broader indemnification rights than said Law
permitted the corporation to provide prior to such amendment, the
indemnification rights conferred by this Article V shall be broadened to
the fullest extent permitted by the General Corporation Law of the State of
Delaware, as so amended.
F. Any
repeal or modification of the foregoing provisions of this Article V,
including without limitation any contractual rights arising under or authorized
by it, by the stockholders of the corporation shall not adversely affect any
right or protection of a director or officer of the corporation existing at
the
time of such repeal or modification.
VI.
Election
of directors need not be by written ballot, unless the By-laws of the
corporation shall so provide.
VII.
The
corporation reserves the right to mend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation. Notwithstanding the immediately preceding
sentence, in addition to any vote of the holders of any class or series of
the
stock of the corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of at least 80% of the voting
power of all of the then-outstanding shares of the stock of the corporation
entitled to vote generally in the election of directors, voting together as
a
single class, shall be required to alter, amend or repeal, or adopt any
provisions inconsistent with, Paragraphs D, E or F of
Article V.
3
VIII.
The
name
and mailing address of the incorporator are as follows:
Xxxxx
Xxxxxx-Xxxxxx, Xx.
Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP
000
Xxxxxx Xxxxxx
Xxx
Xxxxxxxxx, XX 00000
|
Executed
on February 21, 2007.
|
|
|
/s/
Xxxxx Xxxxxx-Xxxxxx,
Xx.
|
|
|
Name:
Xxxxx Xxxxxx-Xxxxxx, Xx.
|
4
Exhibit
B
By-laws
of Xxxxxxx Newco Corporation
[See
attached]
B-1
BY-LAWS
of
XXXXXXX
NEWCO CORPORATION
(Effective
February 21, 2007)
ARTICLE
I
Offices
Section
1. The
registered office shall be in the City of Wilmington, County of New Castle,
State of Delaware.
Section
2. 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
1. Meetings
of stockholders for any purpose may be held at such time and place, within
or
without the State of Delaware, as shall be stated in the notice of the meeting
or in a duly executed waiver of notice thereof.
Section
2. An
annual
meeting of stockholders shall be held on such day and at such time as may be
designated by the Board of Directors. Any previously scheduled annual meeting
of
stockholders may be postponed by resolution of the Board of Directors upon
public notice given on or prior to the date previously scheduled for such annual
meeting of stockholders. Except as otherwise provided by the certificate of
incorporation, as amended from time to time (the “certificate of
incorporation”), at the annual meeting of stockholders the holders of
Common
Stock
shall elect by a plurality vote a board of directors. Such other business shall
be transacted at the annual meeting of stockholders as shall properly come
before it.
Section
3. Written
notice of the annual meeting of stockholders stating the place, date and hour
of
the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) nor more than sixty (60) days before the date of the
meeting and to non-voting stockholders as required by law.
Section
4. Special
meetings of the stockholders entitled to vote, unless otherwise prescribed
by
statute or by the certificate of incorporation, may be called at any time by
the
Chairman of the Board and shall be called by the Chairman of the Board or the
Secretary at the request in writing of a majority of the board of directors,
or
at the request in writing of stockholders owning not less than one-tenth (1/10)
in voting power of the Common Stock of the corporation issued and outstanding.
Such request shall state the purpose or purposes of the proposed meeting.
Special meetings of stockholders may be called under other circumstances as
provided in the certificate of incorporation.
Section
5. 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 (10) nor more than sixty (60) days before the date of the meeting,
to
each stockholder entitled to vote at such meeting and to non-voting stockholders
as required by law.
Section
6. Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
Section
7. The
officer who has charge of the stock ledger of the corporation shall prepare
and
make, at least ten (10) days before every meeting of stockholders, a complete
list of the
2
stockholders
entitled to notice of the stockholders’ meeting. The list must be arranged by
voting group and within each voting group arranged in alphabetical order, and
showing the address of each stockholder and the number of shares registered
in
the name of each stockholder. Such list shall be open to the examination of
any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting in the manner
provided by law. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section
8. The
holders of a majority of the stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
at
all meetings of the stockholders for the transaction of business except as
otherwise provided by statute or by the certificate of incorporation. If,
however, such quorum shall not be present or represented at any meeting of
the
stockholders, the stockholders entitled to vote thereat, present in person
or
represented by proxy, shall have power to adjourn the meeting from time to
time,
without notice other than announcement at the meeting, until a quorum shall
be
present or represented. At such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is for
more
than thirty (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
9. When
a
quorum is present at any meeting, the vote of the holders of a majority of
the
stock entitled to vote present in person or represented by proxy shall decide
any questions brought before such meeting, unless the question is one upon
which
by express provision of the statutes, the certificate of incorporation or of
these by-laws, a different vote is required in which
3
case
such
express provision shall govern and control the decision of such question. All
elections of directors shall be determined by a plurality of the votes
cast.
Section
10. Unless
otherwise provided in the certificate of incorporation, each holder of Common
Stock shall at every meeting of the stockholders be entitled to one (1) vote
for
each share of Common Stock held by such stockholder.
Section
11. Unless
otherwise provided in the certificate of incorporation, any action required
to
be taken at any annual or special meeting of stockholders of the corporation,
or
any action which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and without
a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be (i) signed by the holders of outstanding stock having not less than
the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted, and (ii) delivered to the corporation in accordance with Section 228(a)
of the General Corporation Law of Delaware. Prompt notice of the taking of
the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
Section
12. Each
stockholder entitled to vote at a meeting of stockholders or to express consent
or dissent to corporate action in writing without a meeting may authorize
another person or persons to act for such stockholder by an instrument in
writing or by an electronic transmission permitted by law filed with the
secretary of the corporation, 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 proxy shall be deemed signed if the stockholder’s name is placed on the proxy
(whether by manual signature, typewriting, facsimile, electronic or telegraphic
transmission or otherwise) by the stockholder or the stockholder’s
attorney-in-fact. The revocability of a proxy
4
that
states on its face that it is irrevocable shall be governed by the provisions
of
Section 212(e) of the General Corporation Law of Delaware.
ARTICLE
III
Directors
Section
1. Upon
the
adoption of these by-laws, the number of directors constituting the entire
board
of directors shall be one (1). Thereafter, except as otherwise provided in
the
certificate of incorporation, the number of directors constituting the whole
board may be changed by the board of directors, but shall not be less than
one
(1) nor greater than ten (10). Except as otherwise provided in the certificate
of incorporation, the directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section
2. Except
as
provided in the certificate of incorporation, vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office although less than
a
quorum, or by a sole remaining director, and the directors so chosen shall
hold
office until the next annual election and until their successors are duly
elected and shall qualify, unless he sooner resigns or is removed. If there
are
not directors in office, then an election of directors may be held in the manner
provided by statute.
Section
3. The
business and affairs of the corporation shall be managed by or under the
direction of its board of directors which may exercise all such powers of the
corporation and do
5
all
such
lawful acts and things as are not by statute or by the certificate of
incorporation or by these by-laws directed or required to be exercised or done
by the stockholders.
Meetings
of the Board of Directors
Section
4. The
board
of directors of the corporation may hold meetings, both regular and special,
either within or without the State of Delaware.
Section
5. The
annual meeting of the board of directors shall be held immediately after the
annual stockholders’ meeting and at the place where such meeting is held or at
the place announced by the chairman of such meeting. No notice of an annual
meeting of the board of directors shall be necessary and such meeting shall
be
held for the purpose of electing officers and transacting such other business
as
may lawfully come before it.
Section
6. Regular
meetings of the board of directors may be held without notice at such time
and
at such place as shall from time to time be determined by the board of
directors.
Section
7. Special
meetings of the board may be called by the Chairman of the Board on not less
than two (2) days’ notice to each director; special meetings shall be called by
the Chairman of the Board or Secretary in like manner and on like notice on
the
written request of two directors.
Section
8. At
all
meetings of the board a majority of directors shall constitute a quorum for
the
transaction of business and the act of a majority of the directors present
at
any meeting at which there is a quorum shall be the act of the board of
directors, except as may be otherwise specifically provided by statute or by
the
certificate of incorporation. 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
a quorum shall be present.
6
A
meeting
at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is approved
by
at least a majority of the required quorum for that meeting.
Section
9. Unless
otherwise restricted by the certificate of incorporation or these by-laws,
any
action required or permitted to be taken at any meeting of the board of
directors or of any committee thereof may be taken without a meeting, if all
members of the board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the board or committee.
Section
10. Unless
otherwise restricted by the certificate of incorporation or these by-laws,
members of the board of directors, or any committee designated by the board
of
directors, may participate in a meeting of the board of directors, or any
committee, by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and such participation in a meeting shall constitute presence in person at
the
meeting.
Committees
of Directors
Section
11. The
board
of directors may designate one (1) or more committees, each committee to consist
of one (1) or more of the directors of the corporation. The board of directors
may designate one (1) 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 present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another member of the board of directors to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in
7
the
resolution of the board of directors, or in these by-laws, shall have and may
exercise all the powers and authority of the board of directors in the
management of the business and affairs of the corporation, and may authorize
the
seal of the corporation to be affixed to all papers which may require it; but
no
such committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders,
any action or matter expressly required by the General Corporation Law of
Delaware to be submitted to stockholders for approval or (ii) adopting,
amending or repealing any by-law of the corporation. Such committee or
committees shall have such name or names as may be determined from time to
time
by resolution adopted by the board of directors.
Section
12. Each
committee shall keep regular minutes of its meetings and report the same to
the
board of directors when required.
Compensation
of Directors
Section
13. Unless
otherwise restricted by the certificate of incorporation, the board of directors
shall have the authority to fix the compensation of directors. The directors
may
be paid their expenses, if any, of attendance at each meeting of the board
of
directors and may be paid a fixed sum for attendance at each meeting of the
board of directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees
may
be allowed like compensation for attending committee meetings.
ARTICLE
IV
Notices
Section
1. Whenever,
under the provisions of applicable law, the certificate of incorporation or
these by-laws, notice is required to be given to any director or stockholder,
it
shall be given by
8
personal
delivery, mail, facsimile or telegraphic communication addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, and such notice shall be deemed to be given at the time when the
same shall be delivered personally, deposited in the United States mail or
transmitted as appropriate. Notice to directors may also be made by telephone,
electronic mail or other electronic transmission. Without limiting the manner
by
which notice otherwise may be given effectively to stockholders, any notice
to
stockholders may be given by electronic mail or other electronic transmission,
in the manner provided in Section 232 of the General Corporation Law of
Delaware.
Section
2. Notice
of
a meeting need not be given to any director or stockholder who signs a waiver
of
notice, whether before or after the meeting, or who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to such
director or stockholder.
ARTICLE
V
Officers
Section
1. The
officers of the corporation shall be chosen by the board of directors and shall
be a Chairman of the Board, a President, a Secretary and a Treasurer. The board
of directors may also choose one (1) or more Vice-Presidents, Assistant
Secretaries and Assistant Treasurers. Any number of offices may be held by
the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section
2. The
board
of directors at its first meeting after each annual meeting of stockholders
shall choose a Chairman of the Board, a President, a Secretary and a
Treasurer.
9
Section
3. The
board
of directors may appoint such other officers and agents as it shall deem
necessary 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.
Section
4. The
compensation of all officers of the corporation shall be fixed in a manner
authorized by the board of directors.
Section
5. The
officers of the corporation shall hold office until their successors are chosen
and qualify. Any officer elected or appointed by the board of directors may
be
removed at any time by the affirmative vote of a majority of the board of
directors. Any vacancy occurring in any office of the corporation shall be
filled by the board of directors.
Section
6. The
Chairman of the Board, the President, any Vice-President, the Treasurer or
Assistant Treasurer, the Secretary or Assistant Secretary of this corporation,
or any other person authorized by the board of directors or the Chairman of
the
Board or the President or a Vice-President, is authorized to vote, represent,
and exercise on behalf of this corporation all rights incident to any and all
shares of any other corporation or corporations standing in the name of this
corporation. The authority granted herein may be exercised either by such person
directly or by any other person authorized to do so by proxy or power of
attorney duly executed by the person having such authority.
Chairman
of the Board
Section
7. The
Chairman of the Board shall be the chief executive officer of the corporation,
shall preside at all meetings of the stockholders and the board of directors
and
shall have general supervision over the business and affairs of the corporation
and shall see that all orders and resolutions of the board of directors are
carried into effect and exercise and perform such other
10
powers
and duties as may be from time to time assigned to him by the board of directors
and prescribed by these by-laws.
Section
8. The
Chairman of the Board shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required
or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors or the Chairman of the Board to some other officer or agent of the
corporation.
The
President
Section
9. The
President shall be the chief operating officer of the corporation, shall in
the
absence of the Chairman of the Board, perform the duties and exercise the powers
of the Chairman of the Board, and shall exercise and perform such other powers
and duties as may be from time to time assigned to him by the board of directors
or the Chairman of the Board, or prescribed by these by-laws.
The
Vice-Presidents
Section
10. The
Vice-Presidents shall perform such duties and have such powers as the board
of
directors, the Chairman of the Board, or the President from time to time
prescribe.
The
Secretary and Assistant Secretary
Section
11. The
Secretary shall attend all meetings of the board of directors and all meetings
of the stockholders and record all the proceedings of the meetings of the
corporation and of the board of directors in a book to be kept for that purpose
and shall perform like duties for the standing committees when required. He
shall give, or cause to be given, notice of all meetings of the stockholders
and, except as otherwise provided in these by-laws, special meetings of the
board of directors, and shall perform such other duties as may be prescribed
by
the board of
11
directors,
Chairman of the Board or President, under whose supervision he shall be. He
shall have custody of the corporate seal of the corporation and he, or an
Assistant Secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature or by
the
signature of such Assistant Secretary. The board of directors may given general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his signature.
Section
12. The
Assistant Secretary, or if there be more than one (1), the Assistant Secretaries
in the order determined by the board of directors (or if there be no such
determination, then in the order of their election) shall, in the absence of
the
Secretary or is the event of his inability or refusal to act, perform the duties
and exercise the powers of the Secretary and shall perform such other duties
and
have such other powers as the board of directors, Chairman of the Board or
President may from time to time prescribe.
The
Treasurer and Assistant Treasurers
Section
13. The
Treasurer shall have the custody of the corporate funds and securities and
shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the corporation and shall deposit all moneys and other valuable effects
in
the name and to the credit of the corporation in such depositories as may be
designated by the board of directors.
Section
14. He
shall
disburse the funds of the corporation as may be ordered by the board of
directors, taking proper vouchers for such disbursements, and shall render
to
the President and the board of directors, at its regular meetings, or when
the
board of directors so requires, an account of all his transactions as Treasurer
and of the financial condition of the corporation.
Section
15. The
Assistant Treasurer, or if there shall be more than one (1), the Assistant
Treasurers in the order determined by the board of directors (or if there be
no
such
12
determination,
then in the order of their election), shall, in the absence of the Treasurer
or
in the event of his inability or refusal to act, perform the duties and exercise
the powers of the Treasurer and shall perform such other duties and have such
other powers as the board of directors, Chairman of the Board, or President
may
from time to time prescribe.
ARTICLE
VI
Certificate
of Stock
Section
1. Every
holder of stock in the corporation shall be entitled to have a certificate,
signed by, or in the name of the corporation by, the Chairman of the Board,
the
President or a Vice-President and the Treasurer or an Assistant Treasurer,
or
the Secretary or an Assistant Secretary of the corporation, representing the
number of shares owned by him in the corporation.
Section
2. Any
of or
all the signatures on the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent
or
registrar at the date of issue.
Lost
Certificates
Section
3. The
corporation may direct a new certificate or certificates to be issued in place
of any certificate or certificates previously issued by it, alleged to have
been
lost, stolen or destroyed, and the corporation may require the owner of the
lost, stolen or destroyed certificate, or the owner’s legal representative, to
give the corporation a bond sufficient to indemnify it against any claim that
may be made against it on account of the alleged loss, theft or destruction
of
any such certificate or the issuance of such new certificate or uncertificated
shares.
13
Transfers
of Stock
Section
4. Upon
surrender to the corporation or the transfer agent of the corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
Fixing
Record Date
Section
5. In
order
that the corporation may determine the stockholders entitled to notice of or
to
vote at any meeting of stockholders or any adjournment thereof, the board of
directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the board of
directors, and which record date shall not be more than sixty (60) nor less
than
ten (10) days before the date of such meeting. If no record date is fixed by
the
board of directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or if
notice is waived, at the close of business on the day next preceding the day
on
which the meeting is held. A determination of stockholders of record entitled
to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the board of directors may fix a new
record date for the adjourned meeting.
Section
6. In
order
that the corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the board of directors may fix
a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the board of directors, and
which date shall not be more than ten (10) days after the date upon
14
which
the
resolution fixing the record date is adopted by the board of directors. If
no
record date has been fixed by the board of directors, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the board of directors is required
by
applicable law, shall the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the corporation
by delivery to its registered office in the State of Delaware, its principal
place of business, or the Secretary. Delivery made to a corporation’s registered
office shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the board of directors and prior
action by the board of directors is required by applicable law, the record
date
for determining stockholders entitled to consent to corporate action in writing
without a meeting shall be a the close of business on the day on which the
board
of directors adopts the resolution taking such prior action.
Section
7. In
order
that the corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the board of directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which
the
board of directors adopts the resolution relating thereto.
Registered
Stockholders
Section
8. The
corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, and to
vote
as such owner,
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and
to
hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE
VII
General
Provisions
Dividends
Section
1. Dividends
upon the capital stock of the corporation, subject to the provisions of the
certificate of incorporation, if any, may be declared by the board of directors
at any regular or special meeting, pursuant to applicable law. Dividends may
be
paid in cash, in property, or in shares of the capital stock, subject to the
provisions of the certificate of incorporation.
Section
2. Before
payment of any dividend, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the directors from
time
to time, in their absolute discretion, think proper as a reserve or reserves
to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the corporation, or for such other purpose as the directors
shall think conducive to the interest of the corporation, and the directors
may
modify or abolish any such reserve in the manner in which it was
created.
Annual
Statement
Section
3. The
board
of directors shall present at each annual meeting, and at any special meeting
of
the stockholders when called for by vote of the stockholders entitled to vote
thereat, a full and clear statement of the business and condition of the
corporation.
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Checks
Section
4. 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.
Fiscal
Year
Section
5. The
fiscal year of the corporation shall be fixed by resolution of the board of
directors.
Seal
Section
6. The
corporate seal shall have inscribed thereon the name of the corporation, the
date of its organization and the word “Delaware.” The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced
or
otherwise.
ARTICLE
VIII
Indemnification
Section
1. The
corporation shall indemnify any person who was or is made a party or is
threatened to be made a party to or is in any way involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, including any appeal therefrom, by reason
of
the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the corporation or of a
direct or indirect subsidiary of the corporation, or is or was serving at the
request of the corporation as a director or officer of another entity or
enterprise, or was a director or officer of a corporation which was a
predecessor corporation of the corporation or of another entity or enterprise
at
the request of such predecessor corporation against expenses (including
attorney’s fees), judgments,
17
fines
and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding to the fullest extent authorized by
applicable law.
The
foregoing right of indemnification shall not be deemed exclusive of any other
rights to which those seeking indemnification may be entitled under, any
provision of the certificate of incorporation, agreement, vote of stockholders
or disinterested directors or otherwise, and shall continue as to a person
who
has ceased to be a director, officer, employee, trustee, fiduciary, advisor
or
agent and shall inure to the benefit of the heirs, executors and administrators
of such person.
Section
2. The
corporation may indemnify any other person who was or is made a party or is
threatened to be made a party to or is in any way involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, including any appeal therefrom, by reason
of
the fact that he is or was an employee or agent of the corporation or of a
subsidiary of the corporation or is or was serving at the request of the
corporation or of a subsidiary of the corporation as an employee, trustee,
fiduciary, advisor or agent of another company, partnership, joint venture,
trust or other enterprise against expenses (including attorney’s fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding to the fullest extent
authorized by applicable law.
Section
3. Expenses
incurred in defending any action or proceeding for which indemnification is
required pursuant to Section 1 of this Article or for which indemnification
is
permitted pursuant to Section 2 of this Article following authorization thereof
by the board of directors shall be paid by the corporation in advance of the
final disposition of such action or proceeding upon receipt of an undertaking
by
or on behalf of the indemnified party to repay such
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amount
if
it shall ultimately be determined by final judicial decision from which there
is
no further right to appeal that the indemnified party is not entitled to be
indemnified as authorized in this Article VIII.
ARTICLE
IX
Amendments
Section
1. These
by-laws may be altered, amended or repealed or new by-laws may be adopted by
the
stockholders entitled to vote or by the board of directors, when such power
is
conferred upon the board of directors by the certificate of incorporation,
at
any regular meeting of the stockholders or of the board of directors or at
any
special meeting of the stockholders or of the board of directors if notice
of
such alteration, amendment, repeal or adoption of new by-laws be contained
in
the notice of such special meeting.
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