EXHIBIT 10.37
SUBSCRIPTION AGREEMENT
This Subscription Agreement (the "Agreement") is made and entered into
as of December 31, 2000, among Valhi, Inc., a Delaware corporation ("Valhi"),
Tremont Holdings, LLC, a Delaware limited liability company ("TRE Holdings" and
together with Valhi, the "Purchasers"), and Tremont Group, Inc., a Delaware
corporation ("TGI").
Recitals
A. The Purchasers are beneficial owners of shares (the "Tremont
Shares") of the common stock, par value $1.00 per share, of Tremont Corporation,
a Delaware corporation ("Tremont").
B. Each of the Purchasers wishes to subscribe for and purchase one
thousandth of a share of common stock, par value $0.01 per share, of TGI (the
"TGI Shares"), for each Tremont Share they contribute to TGI on the terms and
subject to the conditions of this Agreement (each time a contribution is made
shall be referred to as a "Transaction").
C. The certificate of incorporation and the bylaws of TGI, to which the
Stockholders have agreed in connection with the transactions contemplated by
this Agreement are attached as Exhibits A and B, respectively, to this
Agreement.
Agreement
The parties agree as follows:
ARTICLE I.
THE TRANSACTION
Section 1.1. Initial Contribution of Tremont Shares for TGI Shares. In
consideration of TGI's issuance of one thousandth of a TGI Share for each
Tremont Share the Purchasers contribute to TGI on the date hereof, each of Valhi
and TRE Holdings hereby sells, transfers, assigns and delivers to TGI 4,113,421
and 1,028,000 Tremont Shares, respectively. Certificates representing such
Tremont Shares are hereby delivered accompanied by stock powers duly endorsed in
blank.
Section 1.2. Subsequent Contributions of Tremont Shares for TGI Shares.
In consideration of TGI's issuance of one thousandth of a TGI Share for each
Tremont Share the Purchasers may contribute to TGI in the future, each of the
Purchasers may in the future sell, transfer, assign and deliver Tremont Shares
to TGI. Certificates representing such Tremont Shares shall be delivered
accompanied by stock powers duly endorsed in blank on the date of the respective
contribution.
Section 1.3. Voting Agreement. Each of the parties as a condition to
all Transactions shall execute and deliver to the other parties a Voting
Agreement substantially in the form of Exhibit C attached hereto (the "Voting
Agreement").
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each of the Purchasers hereby individually represents and warrants to
TGI as of the date of this Agreement, and each time a Purchaser subsequently
contributes Tremont Shares to TGI as though made on the date of such
contribution, as follows.
Section 2.1. Authority. It is validly existing and in good standing
under the laws of the state of its incorporation or formation. It has the power
and authority, without the consent or approval of any other person, to execute
and deliver this Agreement and to consummate the respective Transaction. All
action required to be taken by or on behalf of it to authorize the execution,
delivery and performance of this Agreement and the respective Transaction has
been duly and properly taken.
Section 2.2. Validity. This Agreement is duly executed and delivered by
it and constitutes its lawful, valid and binding obligation, enforceable in
accordance with its terms. The execution and delivery of this Agreement and the
consummation of the respective Transaction by it are not prohibited by, do not
violate or conflict with any provision of, and do not result in a default under
(a) its charter, bylaws or company agreement, as applicable; (b) any material
contract, agreement or other instrument to which it is a party or by which it is
bound; (c) any order, writ, injunction, decree or judgment of any court or
governmental agency applicable to it; or (d) any law, rule or regulation
applicable to it, except in each case for such prohibitions, violations,
conflicts or defaults that would not have a material adverse consequence to the
respective Transaction.
Section 2.3. Ownership of Tremont Shares. It is the beneficial owner of
the Tremont Shares it will contribute to TGI in the respective Transaction and
upon consummation of the respective Transaction TGI will acquire good and
marketable title to such Tremont Shares free and clear of any liens,
encumbrances, security interests, restrictive agreements, claims or
imperfections of any nature whatsoever, other than restrictions on transfer
imposed by applicable securities laws.
Section 2.4. Purchase for Investment. It is purchasing the TGI Shares
issued and delivered to it in the respective Transaction for investment solely
for its own account and not with a view to, or for resale in connection with,
the distribution thereof. It understands that such TGI Shares are restricted
securities under the Securities Act of 1933, as amended (the "Securities Act"),
and that such TGI Shares must be held indefinitely unless they are registered
under the Securities Act and any applicable state securities or blue sky laws or
an exemption from such registration is available.
Section 2.5. Nature of Purchaser. It has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits
and risks of the purchase of TGI Shares issued and delivered to it in the
respective Transaction.
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF TGI
TGI hereby represents and warrants to each of the Purchasers as of the
date of this Agreement, and each time a Purchaser subsequently contributes
Tremont Shares to TGI as though made on the date of such contribution, as
follows.
Section 3.1. Authority. It is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of its incorporation.
It has the corporate power and authority, without the consent or approval of any
other person, to execute and deliver this Agreement and to consummate the
respective Transaction. All corporate action required to be taken by or on
behalf of it to authorize the execution, delivery and performance of this
Agreement and the respective Transaction has been duly and properly taken.
Section 3.2. Validity. This Agreement is duly executed and delivered by
it and constitutes its lawful, valid and binding obligation, enforceable in
accordance with its terms. The execution and delivery of this Agreement and the
consummation of the respective Transaction by it are not prohibited by, do not
violate or conflict with any provision of, and do not result in a default under
(a) its charter or bylaws; (b) any material contract, agreement or other
instrument to which it is a party or by which it is bound; (c) any order, writ,
injunction, decree or judgment of any court or governmental agency applicable to
it; or (d) any law, rule or regulation applicable to it, except in each case for
such prohibitions, violations, conflicts or defaults that would not have a
material adverse consequence to the respective Transaction.
Section 3.3. Issuance of TGI Shares. Upon the consummation of each
Transaction, the TGI Shares issued in such Transaction will be validly issued,
fully paid and non-assessable shares and the respective Purchaser receiving such
shares will acquire good and marketable title to such shares free and clear of
any liens, encumbrances, security interests, restrictive agreements, claims or
imperfections of any nature whatsoever, other than restrictions on transfer
imposed by applicable securities laws, except that Valhi's TGI Shares will be
subject to the restrictions of the Voting Agreement.
Section 3.4. Purchase for Investment. It is purchasing the Tremont
Shares sold and delivered to it in the respective Transaction for investment
solely for its own account and not with a view to, or for resale in connection
with, the distribution thereof. It understands that such Tremont Shares are
restricted securities under the Securities Act and that such Tremont Shares must
be held indefinitely unless they are registered under the Securities Act and any
applicable state securities or blue sky laws or an exemption from such
registration is available.
Section 3.5. Nature of TGI. It has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of the purchase of the Tremont Shares sold and delivered to it in the
respective Transaction.
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ARTICLE IV.
GENERAL PROVISIONS
Section 4.1. Restricted Shares. Each of the Purchasers hereby consents
to the placing of a legend on any stock certificates evidencing TGI Shares
issued to it in a Transaction stating that such TGI Shares are restricted
securities. Valhi agrees to the placing of a legend on any stock certificates
evidencing its TGI Shares stating that such TGI Shares are subject to the Voting
Agreement.
Section 4.2. Access to Information. Each of the Purchasers shall
provide TGI and its representatives access to all information with respect to
the business of Tremont possessed by such party and reasonably requested by TGI.
TGI shall provide each of the Purchasers and its respective representatives
access to all information with respect to the business of TGI possessed by TGI
and reasonably requested by such Purchaser.
Section 4.3. Survival. The representations and warranties set forth in
this Agreement shall survive the execution of this Agreement and the
consummation of the transactions contemplated herein.
Section 4.4. Amendment and Waiver. No amendment or waiver of any
provision of this Agreement shall in any event be effective unless the same
shall be in a writing referring to this Agreement and signed by the parties
hereto, and then such amendment, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
Section 4.5. Parties and Interest. This Agreement shall bind and inure
to the benefit of the parties named herein and their respective successors and
assigns.
Section 4.6. Entire Agreement. This Agreement contains the entire
understanding among the parties with respect to the transactions contemplated
hereby and supersedes all other agreements and understandings among the parties
with respect to the subject matter of this Agreement.
Section 4.7. Applicable Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the state of Delaware, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the state of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the state of Delaware.
Section 4.8. Severability. If any provision of this Agreement is found
to violate any statute, regulation, rule, order or decree of any governmental
authority, court, agency or exchange, such invalidity shall not be deemed to
effect any other provision hereof or the validity of the remainder of this
Agreement and such invalid provision shall be deemed deleted to the minimum
extent necessary to cure such violation.
Section 4.9. Notice. All notices and other communications that are
required to be or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when delivered in person or transmitted
by confirmed telecopy or upon receipt after dispatch by overnight courier or by
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certified or registered mail, postage prepaid, to the party to whom the notice
is given. Notices shall be given to the address for the respective party
appearing under the party's signature to this Agreement or to such other address
as such party may designate by giving notice of such change of address to the
other parties to this Agreement.
Section 4.10. Headings. The sections and other headings contained in
this Agreement are for reference purposes only and shall not effect in any way
the meaning or interpretation of this Agreement.
Section 4.11. Counterparts. This Agreement may be executed in
counterparts each of which will be an original and all of which taken together
shall constitute one and the same agreement.
Section 4.12. Expenses. Except as otherwise expressly provided herein,
each party to this Agreement shall pay its own costs and expenses in connection
with the transactions contemplated hereby.
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The parties hereto have caused this Agreement to be executed by their
duly authorized officers as of the date first written above.
VALHI, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx, President
Address: Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
FAX: 000.000.0000
Attention: General Counsel
TREMONT HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx, Vice President
Address: Two Greenspoint Plaza
00000 Xxxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
FAX: 000.000.0000
Attention: General Counsel
TREMONT GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx, President
Address: Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
FAX: 000.000.0000
Attention: General Counsel
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EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
TREMONT GROUP, INC.
--------------------------------------------------------------------------------
ARTICLE I.
NAME
The name of the corporation is TREMONT GROUP, INC. (the "Corporation").
ARTICLE II.
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the state of
Delaware is Corporation Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, city
of Xxxxxxxxxx, xxxxxx xx Xxx Xxxxxx, xxxxx xx Xxxxxxxx 00000. The name of the
Corporation's registered agent at such address is Corporation Service Company.
ARTICLE III.
PURPOSE
The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful business, act or activity for which
corporations may be organized under the General Corporation Law of the state of
Delaware.
ARTICLE IV.
AUTHORIZED STOCK
The Corporation shall have authority to issue six thousand five hundred
(6,500) shares of common stock having a par value of one cent ($0.01) per share
(the "Common Stock"). The rights of the holders of common stock are set forth
below.
Section 1. Voting Rights. The holders of Common Stock shall be
entitled to one vote per share on all matters to be voted on by the
stockholders of the Corporation.
Section 2. Dividends. The holders of Common Stock shall be
entitled to participate in such dividends and other distributions or
proceeds in cash, stock or property of the Corporation ratably on a per
share basis as the board of directors may declare out of assets or
funds legally available therefor.
Section 3. Liquidation. The holders of Common Stock shall be
entitled to participate ratably on a per share basis in all
distributions to the holders of Common Stock in any liquidation,
dissolution or winding up of the Corporation.
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Section 4. Redemption. The Corporation shall redeem shares of
Common Stock on a date (the "Redemption Date") that is on or prior to
the 45th day (if such 45th day is a business day, and if not, the next
successive business day) after the date (the "Redemption Notice Date")
that the Corporation and each other holder of shares of Common Stock
receives written notice (a "Redemption Notice") from a holder of shares
of Common Stock (the "Holder") setting forth the number of shares the
Holder wants the Corporation to redeem (the "Redemption Shares"). After
the Redemption Notice Date, the Holder shall only be entitled to
receive from the Corporation on the Redemption Date the fair market
value of the Redemption Shares on the Redemption Notice Date (the
"Redemption Price").
In the Redemption Notice, the Holder may elect (a "Tremont
Share Election") to receive as part of the Redemption Price such number
of shares of the common stock, par value $1.00 per share, of Tremont
Corporation, a Delaware Corporation (the "Tremont Common Stock"), equal
to the product of 1,000 and the number of Redemption Shares.
After a Redemption Notice Date but before the Redemption Date,
the board of directors shall determine in good faith and in its best
business judgment the Redemption Price. In determining the Redemption
Price, the board of directors shall value each share of Tremont Common
Stock held by the Corporation on the Redemption Notice Date at the
volume weighted average sales price of a share of Tremont Common Stock
as reported on the New York Stock Exchange composite transactions
reporting system for the ten trading days ending on the Redemption
Notice Date, if such date is a trading day, and if not, on the
immediately prior trading day (the "Tremont Common Stock Value").
If the Holder does not make a Tremont Share Election, on the
Redemption Date the Corporation may pay the Redemption Price, in whole
or in part, in cash, shares of Tremont Common Stock or other property,
which other property the board of directors shall value in good faith
and in its best business judgment. In determining the fair market value
of securities traded on an exchange that are used to pay the Redemption
Price, the board of directors shall value each such security on the
Redemption Notice Date at the volume weighted average sales price of
such security as reported on the applicable exchange for the ten
trading days ending on the Redemption Notice Date, if such date is a
trading day, and if not, on the immediately prior trading day.
If shares of Tremont Common Stock are used to pay all or part
of the Redemption Price, on the Redemption Date:
(a) if the Tremont Common Stock Value for such shares
is less than or equal to the Redemption Price, the Corporation
shall transfer such shares to the Holder and such additional
cash or property in an amount equal in value on the Redemption
Notice Date, as the board of directors determines in good
faith and in its best business judgment, to the excess, if
any, of the Redemption Price over the Tremont Common Stock
Value for such shares;
(b) if the Tremont Common Stock Value for such shares
is greater than the Redemption Price, the Corporation shall
transfer such shares to the Holder and the Holder shall pay in
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cash to the Corporation an amount equal to the excess of the
Tremont Common Stock Value for such shares over the Redemption
Price; and
(c) the Corporation shall deliver to the holder a
stock certificate representing the shares of Tremont Common
Stock comprising the Redemption Price accompanied by a stock
power duly endorsed in blank and the holder shall acquire good
and marketable title to such shares free and clear of any
liens, encumbrances, security interests, restrictive
agreements, claims or imperfections of any nature whatsoever,
other than restrictions on transfer imposed by applicable
securities laws.
On the Redemption Date, the Holder shall deliver to the
Corporation a stock certificate representing the Redemption Shares
accompanied by a stock power duly endorsed in blank and the Corporation
shall acquire good and marketable title to such shares free and clear
of any liens, encumbrances, security interests, restrictive agreements,
claims or imperfections of any nature whatsoever, other than
restrictions on transfer imposed by applicable securities laws.
After the Redemption Notice Date, the Redemption Shares shall
not be deemed to be outstanding and the Holder will only hold a
contractual right from the Corporation to receive the Redemption Price.
Section 5. Protective Provision. The Corporation shall not
amend this Article IV without obtaining the approval of the holders of
90% of the outstanding shares of Common Stock.
Section 6. Record Holders. The Corporation shall be entitled
to treat the person in whose name any share of its stock is registered
as the owner thereof for all purposes and shall not be bound to
recognize any equitable or other claim to, or interest in, such share
on the part of any other person, whether or not the Corporation shall
have notice thereof, except as expressly provided by applicable law.
ARTICLE V.
EXISTENCE
The Corporation is to have perpetual existence.
ARTICLE VI.
BYLAWS
In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to adopt, amend or
repeal the bylaws or adopt new bylaws.
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ARTICLE VII.
MEETINGS OF STOCKHOLDERS
BOOKS OF CORPORATION
ELECTION OF DIRECTORS
Meetings of stockholders may be held within or without the state of
Delaware, as the bylaws of the Corporation may provide. The books of the
Corporation may be kept outside the state of Delaware at such place or places as
may be designated from time to time by the board of directors or in the bylaws
of the Corporation. Election of directors need not by written ballot unless the
bylaws of the Corporation so provide.
ARTICLE VIII.
BOARD OF DIRECTORS
The number of directors constituting the board of directors of the
Corporation shall be five. The Corporation shall not change the number of
directors on the board of directors from five members without obtaining the
approval of the holders of 90% of the outstanding shares of Common Stock.
The name and address of each of the persons to serve as a director
until the first annual meeting of the stockholders or until his successor has
been duly elected and qualified or his earlier resignation, removal or death,
is:
Name Mailing Address
------------------------- ----------------------------------------
Xxxxxx X. Xxxxxxx Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Xxxxx X. Xxxxxxx Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Xxxxxx X. Xxxxxx Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Xxxxxxx X. Xxxxxxxxx Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
J. Xxxxxx Xxxxxx 0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
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ARTICLE IX.
INDEMNIFICATION
The Corporation shall, to the fullest extent permitted by law,
indemnify any and all officers and directors of the Corporation, and may, to the
fullest extent permitted by law or to such lesser extent as is determined in the
discretion of the board of directors, indemnify all other persons from and
against all expenses, liabilities or other matters and advance expenses to all
persons whom it shall have the power to indemnify.
ARTICLE X.
DIRECTOR LIABILITY
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 such liability as is expressly not subject to
limitation under the Delaware General Corporation Law, as the same exists or may
hereafter be amended to further limit or eliminate such liability. Any repeal or
modification of this ARTICLE by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
ARTICLE XI.
CERTAIN BUSINESS COMBINATIONS
The Corporation expressly elects not to be governed by Section 203 of
the General Corporation Law of the State of Delaware.
ARTICLE XII.
SETTLEMENTS WITH CREDITORS OR STOCKHOLDERS
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the state of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be, to
be summoned in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
the Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and said reorganization shall, if sanctioned by the
court to which the said application has been made, be binding on all creditors
or class of creditors, and/or on all the stockholders or class of stockholders,
of the Corporation, as the case may be, and also on the Corporation.
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ARTICLE XIII.
AMENDMENT
The Corporation shall have the right, subject to any express provisions
or restrictions contained in this certificate of incorporation or bylaws of the
Corporation, from time to time, to amend this certificate of incorporation or
any provision thereof in any manner now or hereafter provided by law, and all
rights and powers of any kind conferred upon a director or stockholder of the
Corporation by this certificate of incorporation or any amendment thereof are
conferred subject to such right.
ARTICLE XIV.
INCORPORATOR
The name and mailing address of the sole incorporator of the
Corporation is A. Xxxxxx X. Xxxxx, Three Lincoln Centre, 0000 XXX Xxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000-0000.
THE UNDERSIGNED, being the sole incorporator of the Corporation, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the state of Delaware, does make this certificate to acknowledge, declare and
certify that this certificate of incorporation is his act and deed and the facts
stated in this certificate of incorporation are true, and accordingly executes
this certificate of incorporation this 21st day of December, 2000.
/s/ A. Xxxxxx X. Xxxxx
-------------------------------------
A. Xxxxxx X. Xxxxx, Sole Incorporator
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EXHIBIT B
BYLAWS
OF
TREMONT GROUP, INC.
a Delaware Corporation
(Incorporated on December 21, 2000)
As of December 31, 2000
TABLE OF CONTENTS
Page
TABLE OF CONTENTS.................................................................................................i
ARTICLE I. REGISTERED AGENT AND OFFICES..........................................................................1
Section 1.1. Registered Agent and Office................................................................1
Section 1.2. Other Offices..............................................................................1
ARTICLE II. MEETINGS OF STOCKHOLDERS.............................................................................1
Section 2.1. Place and Time of Meetings.................................................................1
Section 2.2. Notice.....................................................................................1
Section 2.3. List of Stockholders.......................................................................1
Section 2.4. Quorum.....................................................................................1
Section 2.5. Proxies....................................................................................2
Section 2.6. Order of Business..........................................................................2
Section 2.7. Appointment of Inspectors of Election......................................................2
Section 2.8. Informal Action............................................................................2
Section 2.9. Fixing A Record Date.......................................................................3
Section 2.10. Telephone Meetings........................................................................4
Section 2.11. Minutes...................................................................................4
ARTICLE III. DIRECTORS...........................................................................................4
Section 3.1. Number, Qualifications and Term of Office..................................................4
Section 3.2. Removals...................................................................................4
Section 3.3. Vacancies..................................................................................4
Section 3.4. Annual Meeting.............................................................................4
Section 3.5. Other Meetings and Notice..................................................................4
Section 3.6. Quorum.....................................................................................4
Section 3.7. Committees.................................................................................4
Section 3.8. Committee Rules............................................................................5
Section 3.9. Telephonic Meetings........................................................................5
Section 3.10. Presumption of Assent.....................................................................5
Section 3.11. Informal Action...........................................................................5
Section 3.12. Compensation..............................................................................5
Section 3.13. Minutes...................................................................................5
ARTICLE IV. OFFICERS.............................................................................................5
Section 4.1. Number.....................................................................................5
Section 4.2. Election and Term of Office................................................................5
Section 4.3. The Chairman of the Board..................................................................6
Section 4.4. The Vice Chairman of the Board.............................................................6
Section 4.5. The President..............................................................................6
Section 4.6. Vice Presidents............................................................................6
Section 4.7. The Secretary and Assistant Secretary......................................................6
Section 4.8. The Treasurer and Assistant Treasurer......................................................7
Section 4.9. Vacancies..................................................................................7
Section 4.10. Other Officers, Assistant Officers and Agents.............................................7
ARTICLE V. INDEMNIFICATION AND INSURANCE OF DIRECTORS, OFFICERS AND OTHERS.......................................7
Section 5.1. Indemnification............................................................................7
Section 5.2. Advancement of Expenses....................................................................7
Section 5.3. Expenses of Contested Indemnification Claims...............................................8
Section 5.4. Indemnification Not Exclusive..............................................................8
Section 5.5. Survival of Indemnification and Advancement of Expenses....................................8
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Section 5.6. Permissive Indemnification of Employees, Agents and Others.................................8
Section 5.7. Contract Right.............................................................................8
Section 5.8. Insurance..................................................................................8
Section 5.9. Certain References Under Article V.........................................................8
ARTICLE VI. CERTIFICATES OF STOCK................................................................................8
Section 6.1. Form.......................................................................................8
Section 6.2. Transfers..................................................................................9
Section 6.3. Lost or Destroyed Certificates.............................................................9
Section 6.4. Registered Stockholders....................................................................9
ARTICLE VII. CERTAIN BUSINESS COMBINATIONS.......................................................................9
ARTICLE VIII. GENERAL PROVISIONS..................................................................................9
Section 8.1. Dividends..................................................................................9
Section 8.2. Moneys.....................................................................................9
ARTICLE IX. NOTICES..............................................................................................9
Section 9.1. General....................................................................................9
Section 9.2. Waivers...................................................................................10
Section 9.3. Attendance as Waiver......................................................................10
Section 9.4. Omission of Notice to Stockholders........................................................10
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BYLAWS
OF
TREMONT GROUP, INC.
a Delaware Corporation
(Incorporated on December 21, 2000)
As of December 31, 2000
--------------------------------------------------------------------------------
ARTICLE I.
REGISTERED AGENT AND OFFICES
Section 1.1. Registered Agent and Office. The registered agent and
office of the corporation shall be such person or entity and located at such
place within the state of Delaware as the board of directors may from time to
time determine.
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
corporation's 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 and Time of Meetings. All meetings of the
stockholders shall be held on such date and at such time and place, within or
without the state of Delaware, as shall be determined from time to time, by the
board of directors. The place at which a meeting of stockholders shall be held
shall be stated in the notice and call of the meeting or a duly executed waiver
of notice thereof. Special meetings of stockholders may be called by the
chairman of the board, the president, the board of directors or the holders of
at least ten percent of the shares of the corporation that would be entitled to
vote at such a meeting.
Section 2.2. Notice. Notice of the time and place of an annual meeting
of stockholders and notice of the time, place and purpose or purposes of a
special meeting of the stockholders shall be given by mailing written or printed
notice of the same not less than ten, nor more than sixty, days prior to the
meeting, with postage prepaid, to each stockholder of record of the corporation
entitled to vote at such meeting, and addressed to the stockholder's last known
post office address or to the address appearing on the corporate books of the
corporation.
Section 2.3. List of Stockholders. The officer or agent having charge
of the stock transfer books of the corporation shall make, at least ten days
before every meeting of the stockholders, a complete list of the stockholders
entitled to vote at such meeting arranged in alphabetical order, specifying the
address of 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 at the time and place of the meeting
during the whole time thereof and may be inspected by any stockholder who is
present. The original stock transfer books shall be the only evidence as to who
are the stockholders entitled to examine such list or transfer book or to vote
at any such meeting of stockholders.
Section 2.4. Quorum. The holders of a majority of the votes entitled to
be cast at any meeting of stockholders, counted as a single class if there be
more than one class of stock entitled to vote at such meeting, present in person
or represented by proxy, shall constitute a quorum at all meetings of the
stockholders except as otherwise provided by statute or by the certificate of
incorporation. Once a quorum is present at a meeting of the stockholders, the
stockholders represented in person or by proxy at the meeting may conduct such
business as may be properly brought before the meeting until it is adjourned,
and the subsequent withdrawal from the meeting by any stockholder or the refusal
of any stockholder represented in person or by proxy to vote shall not affect
the presence of a quorum at the meeting. If a quorum is not present, the holders
of the shares present in person or represented by proxy at the meeting, and
entitled to vote thereat, shall have the power, by the affirmative vote of the
holders of a majority of such shares, to adjourn the meeting to another time
and/or place. Unless the adjournment is for more than thirty days or unless a
new record date is set for the adjourned meeting, no notice of the adjourned
meeting need be given to any stockholder provided that the time and place of the
adjourned meeting were announced at the meeting at which the adjournment was
taken. At the adjourned meeting the corporation may transact any business that
might have been transacted at the original meeting.
Section 2.5. Proxies. 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 him by
proxy. A telegram, telex, cablegram or similar transmission by the stockholder,
or a photographic, photostatic, facsimile or similar reproduction of a writing
executed by the stockholder shall be treated as an execution in writing for
purposes of this section. No proxy shall be valid after three years from the
date of its execution unless otherwise provided in the proxy. Each proxy shall
be revocable unless the proxy form conspicuously states that the proxy is
irrevocable and the proxy is coupled with an interest.
Section 2.6. Order of Business. The order of business at each such
stockholders meeting shall be as determined by the chairman of the meeting. One
of the following persons, in the order in which they are listed (and in the
absence of the first, the next, and so on), shall serve as chairman of the
meeting: the chairman of the board, vice chairman of the board, president, vice
presidents (in the order of their seniority if more than one) and secretary. The
chairman of the meeting shall have the right and authority to prescribe such
rules, regulations and procedures and to do all such acts and things as are
necessary or desirable for the proper conduct of the meeting, including, without
limitation, the establishment of procedures for the maintenance of order and
safety, limitations on the time allotted to questions or comments on the affairs
of the corporation, restrictions on entry to such meeting after the time
prescribed for the commencement thereof, and the opening and closing of the
voting polls.
Section 2.7. Appointment of Inspectors of Election. The board of
directors shall appoint one or more inspectors of election ("inspectors") to act
at such meeting or any adjournment or postponement thereof and make a written
report thereof. The board of directors may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is so appointed or if no inspector or alternate is able to act, the
chairman of the board shall appoint one or more inspectors to act at such
meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors may be directors, officers or employees of the
corporation.
Section 2.8. Informal Action.
(a) Any action to be taken at a meeting of the 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 signed by the holder or holders of shares having not
less than the minimum number of votes that would be necessary to take
such action at a meeting at which the holders of all shares entitled to
vote on the action were present and voted.
(b) Every written consent of the stockholders shall bear the
date of signature of each stockholder who signs the consent. No written
consent shall be effective to take the action that is the subject of
the consent unless, within sixty days after the date of the earliest
dated consent delivered to the corporation as provided below, a consent
or consents signed by the holder or holders of shares having not less
than the minimum number of votes that would be necessary to take the
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action that is the subject of the consent are delivered to the
corporation by delivery to its registered office, its principal place
of business, or an officer or agent of the corporation having custody
of the books in which proceedings of meetings of the stockholders are
recorded. Such delivery shall be made by hand or by certified or
registered mail, return receipt requested, and in the case of delivery
to the corporation's principal place of business, shall be addressed to
the president of the corporation.
(c) A telegram, telex, cablegram or similar transmission by a
stockholder, or a photographic, photostatic, facsimile or other similar
reproduction of a writing signed by a stockholder, shall be regarded as
signed by the stockholder for the purposes of this section.
(d) Prompt notice of the taking of any action by stockholders
without a meeting by less than unanimous written consent shall be given
to those stockholders who did not consent in writing to the action and
who, if the action had been taken at a meeting, would have been
entitled to notice of the meeting if the record date for such meeting
had been the date that written consents signed by a sufficient number
of holders to take the action were delivered to the corporation.
Section 2.9. Fixing A Record Date.
(a) 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 or 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 nor less
than ten days before the date of such meeting. If no record 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; providing, however, that the board of directors may fix a new
record date for the adjourned meeting.
(b) 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 days after the date upon 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 this chapter, shall be 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 this State, its principal place of business, or an officer or
agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. 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 this chapter, the record date for determining
stockholders entitled to consent to corporate action in writing without
a meeting shall be at the close of business on the day on which the
board of directors adopts the resolution taking such prior action.
(c) 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 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.
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Section 2.10. Telephone Meetings. Stockholders may participate in and
hold a meeting by means of conference telephone or similar communication
equipment by means of which all persons participating in the meeting can hear
each other. Participation in such a meeting shall constitute presence in person
at the meeting, except where a person participates in the meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
Section 2.11. Minutes. The stockholders shall keep regular minutes of
their proceedings, and such minutes shall be placed in the minute book of the
corporation.
ARTICLE III.
DIRECTORS
Section 3.1. Number, Qualifications and Term of Office. The business
and affairs of the corporation shall be managed by a board of directors
consisting of five members. Each director shall be elected at the annual meeting
of the stockholders, except as provided in Section 3.3, and each director
elected shall hold office until the next annual meeting of stockholders and
until his or her successor is duly elected and qualified or until his or her
earlier death, resignation or removal.
Section 3.2. Removals. Subject to the preferential voting rights of the
holders of preferred stock or any other class of capital stock of the
corporation or any series of any of the foregoing that is then outstanding, each
director may be removed from office at any time by the stockholders, with or
without cause, by the affirmative vote of the holders of at least a majority of
the voting power of all of the shares of the corporation entitled to vote for
the election of such director.
Section 3.3. Vacancies. Subject to the preferential voting rights of
the holders of preferred stock or any other class of capital stock of the
corporation or any series of any of the foregoing that is then outstanding and
except as otherwise required by law, all vacancies in the board of directors,
whether caused by resignation, death or otherwise, may be filled by a majority
of the remaining directors though less than a quorum. Each director so chosen
shall hold office for the unexpired term of his or her predecessor and until his
or her successor is elected and qualified or until his or her earlier death,
resignation or removal.
Section 3.4. Annual Meeting. The annual meeting of the board of
directors may be held without notice immediately after the annual meeting of
stockholders at the location of the stockholders' meeting. If not held
immediately after the annual meeting of the stockholders, the annual meeting of
the board of directors shall be held as soon thereafter as may be convenient.
Section 3.5. Other Meetings and Notice. 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. Special meetings of
the board of directors may be called by or at the request of the chairman of the
board or the president and shall be called by the chairman of the board on the
written request of a majority of directors, in each case on at least twenty-four
hours notice to each director.
Section 3.6. Quorum. A majority of the total number of directors shall
be necessary at all meetings to constitute a quorum for the transaction of
business. 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. At such adjourned meeting at which a quorum shall be present,
any business may be transacted that might have been transacted at the meeting as
originally notified and called.
Section 3.7. Committees. Standing or temporary committees consisting of
one or more directors of the corporation may be appointed by the board of
directors from time to time, and the board of directors may from time to time
invest such committees with such powers as it may see fit, subject to
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limitations imposed by statute and such conditions as may be prescribed by the
board of directors. An executive committee may be appointed by resolution passed
by a majority of the entire board of directors and if appointed it shall have
all the powers provided by statute, except as specially limited by the board of
directors. All committees so appointed shall keep regular minutes of the
transactions of their meetings and shall cause them to be recorded in books kept
for that purpose in the office of the corporation, and shall report the same to
the board of directors at its next meeting. 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. The board shall
have the power at any time to change the membership of, to increase or decrease
the membership of, to fill all vacancies in and to discharge any committee of
the board, or any member thereof, either with or without cause.
Section 3.8. Committee Rules. Each committee of the board of directors
may fix its own rules of procedure and shall hold its meetings as provided by
such rules, except as may otherwise be provided by the resolution of the board
of directors designating such committee, but in all cases the presence of at
least a majority of the members of such committee shall be necessary to
constitute a quorum.
Section 3.9. Telephonic Meetings. Members of the board of directors or
any committee designated by the board of directors may participate in any
meeting of the board of directors or such committee by means of a conference
telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in such a
meeting shall constitute presence in person at such meeting.
Section 3.10. Presumption of Assent. A director of the corporation who
is present at a meeting of the board of directors or any committee thereof at
which action on any corporate matter is taken shall be deemed to have assented
to the action taken unless his or her dissent shall be entered in the minutes of
the meeting or unless he or she shall file his or her written dissent to such
action with the person acting as the secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
secretary of the corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a director who voted in favor of such
action.
Section 3.11. Informal Action. 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 such
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 of directors or
committee. Action taken pursuant to such written consent of the board of
directors or of any committee thereof shall have the same force and effect as if
taken by the board of directors or the committee, as the case may be, at a
meeting thereof.
Section 3.12. Compensation. The board of directors shall have the
authority to fix the compensation of directors.
Section 3.13. Minutes. The board of directors shall keep regular
minutes of its proceedings, and such minutes shall be placed in the minute book
of the corporation.
ARTICLE IV.
OFFICERS
Section 4.1. Number. The officers of the corporation shall be a
chairman of the board, a vice chairman of the board, a president, one or more
vice presidents, a secretary, a treasurer, and such other officers and assistant
officers as the board of directors may, by resolution, appoint. Any two or more
offices may be held by the same person. In its discretion, the board of
directors may choose not to fill any office for any period as it may deem
advisable, except the offices of president and secretary.
Section 4.2. Election and Term of Office. The officers of the
corporation shall be elected annually by the board of directors at the annual
meeting of the board of directors. If the election of officers shall not be held
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at such meeting, such election shall be held as soon thereafter as may be
convenient. Each officer shall hold office until the next annual meeting of the
board of directors and until his or her successor is duly elected and qualified
or until his or her earlier death, resignation or removal as hereinafter
provided.
Section 4.3. The Chairman of the Board. The chairman of the board shall
preside at all meetings of the stockholders and directors. He or she shall be
the chief executive officer of the corporation and shall have general and active
management of the business of the corporation, shall see that all orders and
resolutions of the board of directors are carried into effect and, in connection
therewith, shall be authorized to delegate to the vice chairman of the board,
president and other officers such of his or her powers and duties as chairman of
the board at such time and in such manner as he or she may deem to be advisable.
The chairman of the board shall be an ex officio member of all standing
committees and he or she shall have such other powers and duties as may from
time to time be assigned by the board of directors.
The chairman of the board may, from time to time, appoint an
attorney-in-fact or attorneys-in-fact, or an agent or agents, of the corporation
in the name and on behalf of the corporation to cast as a stockholder, in any
other corporation, any of the securities that may be held by the corporation, at
meetings of the holders of such securities of such corporation, or to consent in
writing to any such action by any such other corporation, and may instruct the
person or persons so appointed as to the manner of casting such votes or the
giving of any consent, or may execute or cause to be executed on behalf of the
corporation and under its corporate seal or otherwise such written proxies,
consents, waivers, or other instruments as he or she may deem necessary or
proper, or he or she may attend any meeting of the holders of such securities of
any such other corporation and thereat vote or exercise any or all other powers
of the corporation as the holder of such securities of such corporation.
Section 4.4. The Vice Chairman of the Board. The vice chairman of the
board shall be the corporation's executive officer next in authority to the
chairman of the board. The vice chairman of the board shall assist the chairman
of the board in the management of the business of the corporation, and, in the
absence or disability of the chairman of the board, shall preside at all
meetings of the stockholders and the board of directors and exercise the other
powers and perform the other duties of the chairman of the board or designate
the executive officers of the corporation by whom such other powers shall be
exercised and other duties performed. The vice chairman of the board shall be an
ex officio member of all standing committees and he or she shall have such other
powers and duties as may from time to time be assigned by the board of directors
or by the chairman of the board. In addition to the foregoing, the vice chairman
of the board shall have such other powers, duties and authority as may be set
forth elsewhere in these bylaws.
Section 4.5. The President. The president shall be the corporation's
executive officer next in authority to the vice chairman of the board and shall
be its chief operating officer unless otherwise determined by the board of
directors. The president shall assist the chairman of the board in the
management of the business of the corporation, and, in the absence or disability
of the chairman of the board and the vice chairman of the board, shall preside
at all meetings of the stockholders and the board of directors and exercise the
other powers and perform the other duties of the chairman of the board or
designate the executive officers of the corporation by whom such other powers
shall be exercised and other duties performed. The president shall be an ex
officio member of all standing committees and he or she shall have such other
powers and duties as may from time to time be assigned by the board of directors
or by the chairman of the board. In addition to the foregoing, the president
shall have such other powers, duties, and authority as may be set forth
elsewhere in these bylaws. If the board of directors does not elect a chairman
or vice chairman of the board, the president shall also have the duties and
responsibilities, and exercise all functions, of the chairman and the vice
chairman of the board as provided in these bylaws.
Section 4.6. Vice Presidents. Each vice president shall have such
powers and discharge such duties as may be assigned from time to time by the
chairman of the board. During the absence or disability of the president, one
such vice president, when designated by the board of directors, shall exercise
all the functions of the president.
Section 4.7. The Secretary and Assistant Secretary. The secretary or
the chairman of the board shall issue notices for all meetings. The secretary
shall keep minutes of all meetings, shall have charge of the seal and the
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corporate books and shall make such reports and perform such other duties as are
incident to the office, and perform such other duties designated or properly
required by the chairman of the board. The assistant secretary shall be vested
with the same powers and duties as the secretary, and any act may be done or
duty performed, by the assistant secretary with like effect as though done or
performed by the secretary. The assistant secretary shall have such other powers
and perform such other duties as may be assigned by the chairman of the board.
Section 4.8. The Treasurer and Assistant Treasurer. The treasurer shall
have the custody of all moneys and securities of the corporation and shall keep
regular books of account. He or she shall disburse the funds of the corporation
in payment of just demands against the corporation, or as may be ordered by the
chairman of the board or by the board of directors, taking proper vouchers for
such disbursements, and shall render to the board of directors from time to time
as may be required of him or her, an account of all transactions as treasurer
and of the financial condition of the corporation. The treasurer shall perform
all duties incident to the office, and perform such other duties designated or
properly required by the chairman of the board. The assistant treasurer shall be
vested with the same powers and duties as the treasurer, and any act may be
done, or duty performed by the assistant treasurer with like effect as though
done or performed by the treasurer. The assistant treasurer shall have such
other powers and perform such other duties as may be assigned by the chairman of
the board.
Section 4.9. Vacancies. Vacancies in any office arising from any cause
may be filled by the directors for the unexpired portion of the term with a
majority vote of the directors then in office. In the case of the absence or
inability to act of any officer of the corporation and of any person herein
authorized to act in his or her place, the board of directors may from time to
time delegate the powers or duties of such officer to any other officer or any
director or other person whom it may select.
Section 4.10. Other Officers, Assistant Officers and Agents. Officers,
assistant officers, and agents, if any, other than those whose duties are
provided for in these bylaws 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. Unless the board of directors decides otherwise,
if an officer title is one commonly used for officers of a business corporation
formed under the Delaware General Corporation Law or any successor or similar
statute, the assignment of such title shall constitute the delegation to such
officer of the authority and duties that are normally associated with that
office, subject to any specific delegation of authority and duties made to such
officer by the board of directors.
ARTICLE V.
INDEMNIFICATION AND INSURANCE OF DIRECTORS, OFFICERS AND OTHERS
Section 5.1. Indemnification. To the fullest extent permitted by
Delaware law the corporation shall, indemnify any and all officers and directors
of the corporation, from and against all expenses (including attorneys' fees),
liabilities or other matters arising out of their status as such or their acts,
omissions or services rendered by such persons in such capacities or otherwise
while serving at the request of the corporation. Unless specifically addressed
in a repeal or amendment of Delaware law with regard to a corporation's ability
to indemnify its officers and directors, no such repeal or amendment shall
adversely affect any indemnification rights of any person existing at the time
of such repeal or amendment.
Section 5.2. Advancement of Expenses. Reasonable expenses (including
attorneys' fees) incurred by a director or officer who was, is or is threatened
to be made a named defendant or respondent in a proceeding by reason of his or
her status as a director or officer of the corporation or services rendered by
such persons in such capacities or otherwise at the request of the corporation
or incurred by a director or officer for prosecuting a claim under Section 5.3
shall be paid by the corporation in advance of the final disposition of such
proceeding upon receipt of a written affirmation by the director or officer of
his or her good faith belief that he or she has met the standard of conduct
necessary for indemnification and a written undertaking by or on behalf of the
director or officer 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 in this Article.
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Section 5.3. Expenses of Contested Indemnification Claims. If a
claimant makes a claim on the corporation under Section 5.1 or 5.2 and the
corporation does not pay such claim in full within thirty days after it has
received such written claim, 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 also be entitled to be paid
the expenses of prosecuting such claim.
Section 5.4. Indemnification Not Exclusive. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any other
bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office.
Section 5.5. Survival of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Article shall continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 5.6. Permissive Indemnification of Employees, Agents and
Others. To the fullest extent of Delaware law, the corporation may grant rights
of indemnification and advancement of expenses to any person who is not at the
time a current director or officer of the corporation.
Section 5.7. Contract Right. Each of the rights of indemnification and
advancement of expenses provided by, or granted pursuant to, this Article shall
be a contract right and any repeal or amendment of the provisions of this
Article shall not adversely affect any such right of any person existing at the
time of such repeal or amendment with respect to any act or omission occurring
prior to the time of such repeal or amendment, and further, shall not apply to
any proceeding, irrespective of when the proceeding is initiated, arising from
the service of such person prior to such repeal or amendment.
Section 5.8. Insurance. To the fullest extent of Delaware law, the
corporation shall have power to purchase and maintain insurance on behalf of any
person, including one who is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another enterprise against any liability
asserted against him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the corporation would
have the power to indemnify him or her against such liability under the
provisions of this Article.
Section 5.9. Certain References Under Article V. For purposes of this
Article, references to "the corporation," "proceeding" and "serving at the
request of the corporation" shall have the meanings given such terms in Section
145 of the Delaware General Corporation Law or any successor or similar statute.
ARTICLE VI.
CERTIFICATES OF STOCK
Section 6.1. Form. Certificates of stock shall be issued in numerical
order, and each stockholder shall be entitled to a certificate signed by the
chairman of the board, the president or any vice president and the secretary,
any assistant secretary, the treasurer or any assistant treasurer, certifying to
the number of shares owned by such stockholder. Where, however, such certificate
is signed by a transfer agent or an assistant transfer agent or by a transfer
clerk acting on behalf of the corporation, and a registrar or by an agent acting
in the dual capacity of transfer agent and registrar, the signatures of any of
the above-named officers may be facsimile signatures. In the event that any
officer who has signed, or whose facsimile signature has been used on, a
certificate has ceases to be an officer before the certificate has been
delivered, such certificate may nevertheless be adopted and issued and delivered
by the corporation, as though the officer who signed such certificate or
certificates, or whose facsimile signature or signatures shall have been used
thereon, had not ceased to be such officer of the corporation.
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Section 6.2. Transfers. Transfers of stock shall be made only upon the
transfer books of the corporation or respective transfer agents designated to
transfer the several classes of stock, and before a new certificate is issued,
the old certificate shall be surrendered for cancellation.
Section 6.3. Lost or Destroyed Certificates. The corporation may issue
a new certificate of stock in place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the corporation shall,
except as otherwise determined by the board of directors, the chairman of the
board, the president, any vice president or other authorized officer, require
the owner of the lost, stolen or destroyed certificate, or his or her 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.
Section 6.4. Registered Stockholders. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such shares on the part of another person, whether or not the
corporation shall have express or other notice thereof, except as otherwise
provided by the laws of the state of Delaware.
ARTICLE VII.
CERTAIN BUSINESS COMBINATIONS
The provision of Section 203 of the Delaware General Corporation Law
shall not apply to the corporation.
This Article VII shall be amended, altered or repealed only as provided
in Section 203 of the Delaware General Corporation Law.
ARTICLE VIII.
GENERAL PROVISIONS
Section 8.1. Dividends. Dividends upon the capital stock of the
corporation, subject to any applicable provisions of the certificate of
incorporation, may be declared by the board of directors at any regular or
special meeting, pursuant to law. Dividends may be paid in cash, in property or
in shares of the capital stock, subject to the applicable provisions of the
certificate of incorporation. 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 in the best interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 8.2. Moneys. The moneys of the corporation shall be deposited
in the name of the corporation in such bank or banks or trust company or trust
companies as the board of directors shall designate, and shall be drawn out only
by check signed by the chairman of the board or the president and countersigned
by the secretary, assistant secretary, treasurer or the assistant treasurer, or
signed and countersigned by such other persons as shall be designated by
resolution of the board of directors, except that the chairman of the board may
designate one or more officers to transfer by letter or wire funds from an
account of the corporation in one bank to an account of the corporation or a
subsidiary in another bank and the chairman of the board shall have the
authority on bank accounts to designate that one signature of an officer or
other person shall be sufficient.
ARTICLE IX.
NOTICES
Section 9.1. General. Whenever the provisions of any statute or these
bylaws require notice to be given to any director, officer or stockholder, such
notice may be given personally or in writing by facsimile, by telegraph or by
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depositing the same in the United States mail with postage prepaid addressed to
each director, officer or stockholder at his or her address, as the same appears
in the books of the corporation, and the time when the same shall be personally
given, sent by facsimile or telegraph or mailed shall be deemed to be the time
of the giving of such notice.
Section 9.2. Waivers. Whenever any notice whatever is required to be
given under provisions of law or of the certificate of incorporation or of these
bylaws, a waiver thereof in writing signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
Section 9.3. Attendance as Waiver. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except where a person
attends a 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.
Section 9.4. Omission of Notice to Stockholders. Any notice required to
be given to any stockholder under any statutory provision, the certificate of
incorporation or these bylaws need not be given to the stockholder if:
(a) notice of two consecutive annual meetings and all notices
of meetings held or actions by written consent taken during the period
between those annual meetings, if any, or
(b) all, and at least two, payments (if sent by first class
mail) of distributions or interest on securities during a twelve month
period
have been mailed to that person, addressed at his or her address as shown on the
share transfer records of the corporation, and have been returned undeliverable.
Any action or meeting taken or held without notice to such a person shall have
the same force and effect as if the notice had been duly given. If such a person
delivers to the corporation a written notice setting forth his or her then
current address, the requirement that notice be given to that person shall be
reinstated.
ADOPTED BY THE BOARD OF DIRECTORS AS
OF DECEMBER 31, 2000
/s/ A. Xxxxxx X. Xxxxx
---------------------------------------------
A. Xxxxxx X. Xxxxx, Secretary
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EXHIBIT C
VOTING AGREEMENT
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
December 31, 2000, among Valhi, Inc., a Delaware corporation ("Valhi"), Tremont
Holdings, LLC, a Delaware limited liability company ("TRE Holdings" and together
with Valhi, the "Stockholders"), and Tremont Group, Inc., a Delaware corporation
("TGI"). Unless otherwise provided in this Agreement, certain capitalized terms
used herein are defined in Section 8.
Recitals
The parties hereto desire to enter into this Agreement to establish a
mechanism to elect as a director of TGI one person designated in writing by TRE
Holdings.
Agreement
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as follows.
Section 1. Voting for Directorship. Valhi agrees to vote all of its TGI
Shares, and will take all other necessary or desirable actions within its
control, to elect as a director of TGI one person designated in writing by TRE
Holdings. The parties agree that the initial person designated by TRE Holdings
to be elected a director of TGI is J. Xxxxxx Xxxxxx. If in the future more than
one person holds TRE Holdings' TGI Shares, such persons must jointly agree on
one designee that they desire to have Valhi elect as a director of TGI and
notify Valhi in writing of such designee before Valhi is obligated to elect such
designee under this section.
Section 2. Size of Board of Directors; Governing Instruments. The
Stockholders hereby agree (a) that the board of directors shall be comprised of
five (5) persons as directors, and each Stockholder shall take or cause to be
taken all action to require that the certificate of incorporation and bylaws of
TGI shall so provide and (b) to ensure at all times that the certificate of
incorporation and bylaws of TGI are not at any time inconsistent with the
provisions of this Agreement.
Section 3. Impairment. Valhi agrees that it will not vote or otherwise
consent or take action with respect to its TGI Shares to amend TGI's certificate
of incorporation or bylaws in a manner that would affect the voting rights of
TGI's stockholders.
Section 4. Transfer of Shares. Valhi agrees that the agreement relating
to the voting of its TGI Shares evidenced by this Agreement shall encumber such
shares, and that any permitted successor, assignee, or transferee shall take
such shares subject to this Agreement. In addition, each party agrees to cause
any permitted successor, assignee, or transferee of such party to become a party
to this Agreement.
Section 5. Term. Unless earlier terminated by agreement of the parties,
this Agreement shall remain in effect for as long as TRE Holdings or its
permitted successors, assigns and transferees hold TGI Shares.
Section 6. Legend. Each certificate evidencing Valhi's TGI Shares and
each certificate issued in exchange for or upon the transfer of such TGI Shares
(if such shares remain subject to the terms of this Agreement after such
transfer) shall be stamped or otherwise imprinted with a legend in substantially
the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A VOTING
AGREEMENT ("AGREEMENT") DATED AS OF DECEMBER 31, 2000 AMONG THE ISSUER
OF SUCH SECURITIES (THE "ISSUER") AND THE ISSUER'S SECURITY HOLDERS. A
COPY OF SUCH AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER
TO THE HOLDER HEREOF UPON WRITTEN REQUEST.
The legend set forth above shall be removed from the certificates evidencing TGI
Shares that cease to be subject to the terms of this Agreement or the
termination of this Agreement.
Section 7. Specific Performance. Valhi agrees that the remedy at law
for any breach by it of this Agreement will be inadequate and that, in addition
to any other remedies TRE Holdings might have, TRE Holdings shall be entitled,
without the necessity of proving actual damages, to specific performance and
injunctive relief to prevent the breach of any provisions of this Agreement.
Section 8. Definitions.
"Common Stock" means TGI's common stock, par value $0.01 per
share.
"Stockholder" means any stockholder of TGI who is subject to
the terms of this Agreement.
"TGI Shares" means any Common Stock and any other voting
securities of TGI purchased or otherwise acquired by any Stockholder.
As to any particular shares constituting TGI Shares, such shares will
cease to be subject to this Agreement if and when they have been
repurchased by TGI.
Section 9. Miscellaneous.
(a) Amendment and Waiver. Except as otherwise provided herein,
no modification, amendment or waiver of any provision of this Agreement
will be effective against a Stockholder, unless such modification,
amendment or waiver is approved in writing by such Stockholder. The
failure of any party to enforce any of the provisions of this Agreement
will in no way be construed as a waiver of such provisions and will not
affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
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(b) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement is
held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality
or unenforceability will not affect any other provision or any other
jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
(c) Entire Agreement. This Agreement contains the entire
understanding among the parties with respect to the transactions
contemplated hereby and supersedes all other agreements and
understandings among the parties with respect to the subject matter of
this Agreement.
(d) Successors and Assigns. Except as otherwise provided
herein, this Agreement will bind and inure to the benefit of and be
enforceable by TGI and its successors and assigns, and the Stockholders
and any subsequent holders of TGI Shares, and the respective successors
and assigns of each of them, so long as they hold TGI Shares.
(e) Counterparts. This Agreement may be executed in
counterparts each of which will be an original and all of which taken
together shall constitute one and the same agreement.
(f) Notice. All notices and other communications that are
required to be or may be given under this Agreement shall be in writing
and shall be deemed to have been duly given when delivered in person or
transmitted by confirmed telecopy or upon receipt after dispatch by
overnight courier or by certified or registered mail, postage prepaid,
to the party to whom the notice is given. Notices shall be given to the
address for the respective party appearing under the party's signature
to this Agreement or to such other address as such party may designate
by giving notice of such change of address to the other parties to this
Agreement.
(g) Applicable Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the state of
Delaware, without giving effect to any choice of law or conflict of law
provision or rule (whether of the state of Delaware or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the state of Delaware.
(h) Headings. The sections and other headings contained in
this Agreement are for reference purposes only and shall not effect in
any way the meaning or interpretation of this Agreement.
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The parties hereto have caused this Agreement to be executed by their
duly authorized officers as of the date first written above.
TREMONT GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx, President
Address: Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
FAX: 000.000.0000
Attention: General Counsel
VALHI, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx, President
Address: Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
FAX: 000.000.0000
Attention: General Counsel
TREMONT HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx, Vice President
Address: Two Greenspoint Plaza
00000 Xxxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
FAX: 000.000.0000
Attention: General Counsel
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