Exhibit 10.8
AMENDMENT TO
AGREEMENT OF MERGER
among
ENTERTAINMENT/MEDIA ACQUISITION CORPORATION
(a Delaware Corporation),
OVERSEAS FILMGROUP, INC.
(a Delaware Corporation),
and
XXXXX XXXXXXXX LITTLE and XXXXXX X. XXXXXX
September 20, 1996
This AMENDMENT TO AGREEMENT OF MERGER (the "Amendment") is
entered into as of the 20th day of September, 1996, by and among
Entertainment/Media Acquisition Corporation, a Delaware corporation, Overseas
Filmgroup, Inc., a Delaware corporation, and Xxxxx Xxxxxxxx Little and Xxxxxx
X. Xxxxxx (collectively, the "Parties").
Background
WHEREAS, the Parties have entered into an Agreement of
Merger, dated as of July 2, 1996 (the "Merger Agreement"); and
WHEREAS, the Parties desire to amend certain provisions,
including definitional provisions, of the Merger Agreement,
NOW, THEREFORE, in consideration of the respective covenants
contained herein and intending to be legally bound hereby, the Parties hereto
agree as follows:
1. Article I of the Merger Agreement is hereby amended
and restated as set forth below:
a. The definition of "Overseas Stockholders'
Employment Agreement" is hereby amended and restated to read in full as follows:
"Overseas Stockholders' Employment Agreement" means the form
of Employment Agreement to be entered into with each of the Overseas
Stockholders, attached hereto as Exhibit H (with such changes satisfactory to
the Overseas Stockholders in their reasonable judgment as are necessary to
indicate that Xxxxx Xxxxxxxx Little shall be the sole President of the
Surviving Corporation).
b. The definition of "Overseas Subsidiaries" is
hereby amended and restated to read in full as follows:
"Overseas Subsidiaries" means the following companies:
Jacaranda Music, Inc., a Delaware corporation; Walrus Pictures, Inc., a
California corporation; Overseas Filmgroup (U.K.) Ltd., a United Kingdom
corporation; Intrastate Film Distributors, Inc., a Delaware corporation, Alien
Towers, Inc., a California corporation; Code 99 Productions, Inc., a
California corporation; Enough Rope, Inc., a California corporation; Positive,
Inc., a California corporation; and Road to Ruin, Inc., a California
corporation.
2. Section 6.1 of the Merger Agreement is hereby amended
and restated to read in full as follows:
6.1 Operation of the Business. From the date hereof to the
Effective Time, except as set forth in Schedule 6.1, Overseas shall conduct
its Business solely in the ordinary course and, except as set forth in
Schedule 6.1, shall refrain from the following actions in furtherance of and
in addition to such restriction (except as contemplated by this Agreement or
as approved by EMAC in writing): amending its Certificate of Incorporation or
bylaws; merging or consolidating with, or acquiring all or substantially all
of, or otherwise acquiring any material business operations of, any Person;
selling or otherwise disposing of any material Assets other than in the
ordinary course; entering into, amending, modifying or supplementing any
Contract or otherwise incurring any Liability, other than in the ordinary
course, if Overseas' executory obligation in any such individual case, or
series of related cases, exceeds $100,000; discharging or satisfying any
material Encumbrance or paying or satisfying any material Liability except
pursuant to the terms thereof or otherwise in the ordinary course or
compromising, settling or otherwise modifying any material claim otherwise
than in the ordinary course or litigation; making any capital expenditure
other than in the ordinary course involving in any individual case, or series
of related cases, more than $50,000; or issuing any securities; and agreeing,
whether in writing or otherwise, to do any of the foregoing; provided,
however, that the foregoing shall not restrict Overseas' ability to enter into
any Contract or incur any Liability that is described on the Overseas
Disclosure Schedule or in the Proxy Statement. EMAC agrees that the Overseas
Stockholders may transfer their shares in Overseas to a living trust or other
estate planning vehicle; provided that such transferee agrees to be bound by
all the terms and conditions of the Transaction Documents to which the
Overseas Stockholders are a party.
3. A new Section 7.18 is hereby added to the Merger
Agreement as follows:
7.18 Restated Syndication Agreement. EMAC understands and
acknowledges that (i) Overseas has entered into a Restated and Amended
Syndication Agreement (the "Restated Syndication Agreement") with Xxxxxx & Co.
and Berliner Bank A.G. London Branch (the "Banks") which shall be effective
upon consummation of the Merger, (ii) in conjunction with the Merger and the
Restated Syndication Agreement, the Overseas Stockholders have agreed to
subordinate the Merger Note to the security interests granted to the Banks
pursuant to the Restated Syndication Agreement, and (iii) in connection with
the agreement to subordinate, the Overseas Stockholders have agreed not to
sell any shares of capital stock of the Surviving Corporation without the
prior written consent of the Banks (the "No Sale Provision"). EMAC
understands, acknowledges and agrees that the Overseas Stockholders may at any
time, or from time to time, request that the Banks consent to the sale of
shares of capital stock of the Surviving Corporation by the Overseas
Stockholders (a "Sale Consent") or modify or delete the No Sale Provision.
EMAC agrees to use its best efforts to assist the Overseas Stockholders in
making a request to the Banks for, and in obtaining, a Sale Consent or
modification or deletion of the No Sale Provision and EMAC agrees to execute
and deliver any and all documents and take any and all other actions that may
be necessary to obtain or effectuate such Sale Consent or modification or
deletion of the No Sale Provision (including, without limitation, requesting
in connection
2
with any renewal of the Restated Syndication Agreement that such No Sale
Provision be deleted). Overseas acknowledges that nothing in this paragraph
shall be deemed to modify or amend the Lock-Up and Registration Rights
Agreement.
4. Section 9.3(f) of the Merger Agreement is hereby amended
and restated to read in full as follows:
9.3(f) Legal Opinion. Overseas and the Overseas Stockholders
shall have received an opinion of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel to
EMAC, dated as of the Closing Date covering the matters set forth on Exhibit
Q.
5. Section 9.3(g) of the Merger Agreement shall be amended
and restated to read in full as follows:
9.3(g) Tax Opinion. Overseas and the Overseas Stockholders
shall have received an opinion of Xxxxxxx, Phleger & Xxxxxxxx LLP, counsel to
EMAC, dated as of the Closing Date, to the effect that for federal income tax
purposes (a) the Merger will constitute a "reorganization' within the meaning
of Section 368(a)(1)(A) of the Code; (b) each of EMAC and Overseas will be a
"party to the reorganization" within the meaning of Section 368(b) of the
Code; (c) no gain or loss will be recognized to the holders of Overseas Shares
upon the receipt of the Merger Shares in exchange for their Overseas Shares
pursuant to the Merger; (d) the tax basis of the Merger Shares received by the
holders of Overseas Shares will be the same as the basis of the Overseas
Shares exchanged therefor; (e) the holding period of the Merger Shares in the
hands of the holders of Overseas Shares will include the holding period of
their Overseas Shares exchanged therefor, provided that the Overseas Shares
are held as a capital asset at the Effective Time of the Merger and (f) no
gain or loss will be recognized by EMAC and Overseas in the Merger.
6. The following exhibits, which have been revised, shall replace
the corresponding documents attached to the Merger Agreement:
Exhibit E Lock-up and Registration Rights Agreement
(Version Dated September 20, 1996)
Exhibit N Amended and Restated Certificate of Incorporation Of
EMAC and Form of By-Laws
(Versions Dated September 20, 1996)
7. The representations and warranties made in the Merger Agreement,
dated as of July 2, 1996, and the Overseas Disclosure Schedules thereto
regarding the Overseas Subsidiaries shall not be deemed to include the
following subsidiaries: Intrastate Film Distributors, Inc., a Delaware
corporation, Alien Towers, Inc., a California corporation; Code 99
Productions, Inc., a California corporation; Enough Rope, Inc., a California
corporation; Positive, Inc., a California corporation; and Road to Ruin, Inc.,
a California
3
corporation; provided, however, that the Closing Overseas Disclosure Schedule
shall include all Overseas Subsidiaries as defined in this Amendment.
8. This Amendment may be executed in one or more counterparts, any
one of which need not contain the signatures of more than one party, but all
such counterparts together will constitute one and the same Amendment.
9. Except as expressly modified by this Amendment, the Merger
Agreement shall remain in full force and effect.
4
IN WITNESS WHEREOF, this Amendment has been executed by the Parties
hereto as of the day and year first written above.
ENTERTAINMENT/MEDIA ACQUISITION
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Title: Chairman of the Board
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Title: Chief Executive Officer and
President
OVERSEAS FILMGROUP, INC.
By: /s/ Xxxxx Xxxxxxxx Little
-------------------------------------------
Title: President
OVERSEAS STOCKHOLDERS
/s/ Xxxxx Xxxxxxxx Little
------------------------------------------------
Xxxxx Xxxxxxxx Little
/s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Xxxxxx X. Xxxxxx
5
Exhibit A to the Amendment
to the Merger Agreement
RESTATED CERTIFICATE
OF
INCORPORATION
OF
ENTERTAINMENT/MEDIA ACQUISITION CORPORATION
(Original Certificate of Incorporation Filed December 9, 1993)
(Pursuant to Section 245 of the
Delaware General Corporation Law)
---------------------
ENTERTAINMENT/MEDIA ACQUISITION CORPORATION, a corporation organized
and existing under the Delaware General Corporation Law,
DOES HEREBY CERTIFY:
That this Restated Certificate of Incorporation was duly adopted in
accordance with Sections 242 and 245 of the Delaware General Corporation Law,
and that its original Certificate of Incorporation, as filed with the
Secretary of State of the State of Delaware on December 9, 1993, is hereby
further amended and restated to read in its entirety as follows:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is OVERSEAS FILMGROUP, INC.
SECOND: The address, including street, number, city and county, of
the registered office of the Corporation in the State of Delaware is 0000
Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000; and the name of the registered agent
of the Corporation in the State of Delaware at such address is Corporation
Service Company.
THIRD: The purpose of this Corporation is to engage in any lawful
act or activity for which corporations may now or hereafter be organized under
the General Corporation Law of the State of Delaware.
FOURTH: The aggregate number of shares of capital stock of the
Corporation (referred to herein as "Shares") which the Corporation shall have
authority to issue is 27,000,000 Shares, of which 25,000,000 will be common
stock having a par value of $0.001 per share (the "Common Stock") and
2,000,000 will be series preferred stock having a par value of $0.001 per
share (the "Series Preferred Stock"). The Series Preferred Stock may be
issued, from time to time, in one or more series as authorized by the Board of
Directors. Prior to issuance of a series, the Board of Directors by resolution
(the "Preferred Stock Designation") shall designate it from other series and
classes of stock of the Corporation, shall specify the number of shares to be
included in the series, and shall fix the terms, rights, restrictions and
qualifications of the shares of a series, including any preferences, voting
powers, dividend rights and redemption, sinking fund and conversion rights.
Subject to the express terms of the Series Preferred Stock outstanding at the
time, the Board of Directors may increase (but not above the total number of
authorized shares of the class) or decrease (but not below the number of
shares thereof then outstanding) the number of shares or alter the Preferred
Stock Designation or classify or re-classify any unissued shares of a
particular series of Series Preferred Stock by fixing or altering in any one
or
-1-
more respects from time to time before issuing the shares, any terms, rights,
restrictions and qualifications of the shares.
FIFTH:
A. Management Vested in the Board of Directors. The management of the
business and the conduct of the affairs of the Corporation shall be vested in
its Board of Directors. In furtherance of and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
repeal, alter, amend and rescind the Bylaws of the Corporation, subject to any
specific limitation on such power provided by the Bylaws. The number of
directors which shall constitute the whole Board of Directors shall be fixed
by, or in the manner provided in, the Bylaws of the Corporation from time to
time. The phrase "whole Board" and the phrase "total number of directors"
shall be deemed to have the same meaning, to wit, the total number of
directors which the Corporation would have if there were no vacancies.
Elections of directors need not be by written ballot.
B. Board of Directors Divided in Classes. The Board of Directors
shall be and is divided into three classes: Class I, Class II and Class III.
The number of directors in each class shall be the whole number contained in a
quotient arrived at by dividing the authorized number of directors by three.
If a fraction is also contained in such quotient and if such fraction is
one-third (1/3), the extra director shall be a member of Class III. If the
fraction is two-thirds (2/3), one of the extra directors shall be a member of
Class III and the other shall be a member of Class II. Each director shall
serve for a term ending on the date of the third annual meeting following the
annual meeting at which such director was elected (and until such director's
successor shall have been elected and qualified); provided, however, that the
first directors elected to Class I shall serve for a term ending on the date
of the first annual meeting next following January 1, 1997 (and until such
director's successor shall have been elected and qualified), the directors
elected to Class II shall serve for a term ending on the date of the second
annual meeting next following January 1, 1997 (and until such director's
successor shall have been elected and qualified), and the term of the
directors elected to Class III shall serve for a term ending on the date of
the third annual meeting next following January 1, 1997 (and until such
director's successor shall have been elected and qualified). Advance notice of
stockholder nominations for the election of directors shall be given in the
manner provided in the Bylaws of the Corporation.
C. Appointment of New Directors. Except as otherwise provided, newly
created directors resulting from any increase in the number of directors and
any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other causes shall be filled by the affirmative
vote of a majority of the remaining directors then in office, even though less
than a quorum of the Board of Directors. Any director elected in accordance
with the preceding sentence shall hold office for the remainder of the full
term of directors in the class of directors in which the new directorship was
created or the vacancy occurred and until such director's successor shall have
been elected and qualified. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
D. Removal of Directors. Subject to the rights of any shares having a
preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances, any director may be removed from
office, with or without cause, but only by the affirmative vote of the holders
of a majority of the combined voting power of all then outstanding shares
entitled to vote generally in the election of directors, voting together as a
single class.
-2-
E. Vote Required to Repeal or Amend this Article FIFTH.
Notwithstanding anything contained in this Restated Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the combined voting power of all
then outstanding shares entitled to vote, voting together as a single class,
shall be required to alter, amend or repeal this Article FIFTH or to adopt any
provision inconsistent therewith.
SIXTH: Meetings of stockholders may be held within or without the
State of Delaware, as the Bylaws 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 Bylaws of the Corporation.
SEVENTH: The Corporation is to have perpetual existence.
EIGHTH: No holder of any Shares shall be entitled as of right to
subscribe for, purchase, or otherwise acquire any Shares of any capital stock
of the Corporation which the Corporation proposes to issue or any rights or
options which the Corporation proposes to grant for the purchase of Shares of
any class of the Corporation or for the purchase of any Shares, bonds,
securities or obligations of the Corporation which are convertible into or
exchangeable for, or which carry any rights to subscribe for, purchase, or
otherwise acquire Shares of any class of capital stock of the Corporation; and
any and all of such Shares, bonds, securities or obligations of the
Corporation, whether now or hereafter authorized or created, may be issued, or
may be reissued or transferred if the same have been reacquired and have
treasury status, and any and all of such rights and options may be granted by
the Board of Directors to such persons, firms, corporations and associations,
and for such lawful consideration, and on such terms, as the Board of
Directors in its discretion may determine, without first offering the same, or
any thereof, to any said holder.
NINTH: No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived
an improper personal benefit. If the Delaware General Corporation Law is
amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extend permitted by
the Delaware General Corporation Law, as so amended. Any repeal or
modification of this Article NINTH by the stockholders of the Corporation
shall not adversely affect any right or protection of a director of the
Corporation with respect to events occurring prior to the time of such repeal
or modification.
TENTH: The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as the
same may be amended and supplemented, indemnify any and all persons whom it
shall have the power to indemnify under said section from and against any and
all of the expenses, liabilities or other matters referred to in or covered by
said section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any 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, and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such
person.
-3-
ELEVENTH: From time to time any of the provisions of this Restated
Certificate of Incorporation may be amended, altered or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in
force may be added or inserted in the manner and at the time prescribed by
said laws, and all rights at any time conferred upon the stockholders of the
Corporation by this Restated Certificate of Incorporation are granted subject
to the provisions of this Article ELEVENTH.
Signed as of [ ], 1996
ENTERTAINMENT/MEDIA ACQUISITION CORPORATION
By: _______________________________________
Name:
Title:
ATTEST:
____________________________________
Name:
Title:
-4-
BYLAWS
for the regulation, except as otherwise provided
by statute or the Certificate of Incorporation
of
OVERSEAS FILMGROUP, INC.
(formerly known as ENTERTAINMENT/MEDIA ACQUISITION CORPORATION)
ARTICLE I
General Provisions
Section 1.01 Principal Executive Office
The registered office of the corporation shall be located at 0000
Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000. 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.
Section 1.02 Number of Directors
The affairs of the corporation shall be managed by a Board of
Directors (the "Board") consisting of seven (7) directors until such number of
directors is changed by an amendment to these Bylaws duly adopted by the Board
or by the Stockholders. Directors need not be Stockholders or citizens or
residents of the United States.
Section 1.03 Registration of Shares
The corporation shall recognize each person registered in its stock
ledger as the exclusive owner and holder of the shares registered in his or
her name as the "Stockholder" for all purposes hereunder with the exclusive
rights inter alia to vote the shares, to receive dividends declared with
respect to the shares, to transfer the shares to others, and to exercise any
other rights of Stockholders. The corporation shall have no obligation to
recognize any equitable or other claim or interest in any shares on the part
of any person or persons other than the registered owner, as set forth in the
stock ledger, whether or not the corporation shall have any notice thereof,
except as may otherwise be provided by the laws of the State of Delaware.
"Shares" for purposes hereof, shall mean shares of the corporation's stock
authorized by its Certificate of Incorporation and registered in the stock
ledger as issued and outstanding, including any one or more classes of stock
so authorized, and whether or not such share is deemed to have voting or other
privileges.
-1-
ARTICLE II
Shares and Stockholders
Section 2.01 Share Certificates
A. In General
The corporation shall issue a certificate or certificates
representing shares of its capital stock. Each certificate so issued shall be
signed by or in the name of the corporation by the Chairman or Vice Chairman of
the Board or the President or a Vice President and by the Chief Financial
Officer, Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the corporation and shall state the name of the record owner
thereof and represent the number of shares registered in certificate form. Any
or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person were an
officer, transfer agent or registrar at the date of issue.
B. Form of Certificates
There shall be set forth on the face or back of a
certificate which the corporation shall issue to represent a class or series
of stock one of the following:
1. A statement of the powers, designations, preferences and
relative participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights; or
2. A summary of the statement described in Subsection
2.01(B)(1) above.
If a security of the corporation is subject to a restriction on the transfer
or registration thereof, such restriction shall be noted, in writing,
conspicuously upon the certificate representing the security.
C. Fractional Share Interests
The corporation may, but shall not be required to, issue
certificates representing a fraction of share and, in this event, the holder
thereof shall have the rights appurtenant to ownership of that interest in the
corporation. If the corporation elects not to issue certificates representing
a fraction of a share to the persons entitled thereto, it shall, at its
election, either:
1. Arrange for disposition of the fractional interest by
those entitled thereto.
2. Pay in cash the fair value of fractions of a share as of
the time when those entitled to receive such fractions are determined.
3. Issue scrip or warrants in registered or bearer form
which entitles the holder to receive a full share upon surrender of such scrip
or warrants aggregating one or more full shares, which
-2-
scrip or warrants may, if the Board elects, either become (i) void if not so
surrendered on or before a specified date, or (ii) subject to such other
conditions or limitations as may be designated by the Board.
Section 2.02 Transfer of Certificates
Where a certificate for shares is presented to the corporation or its
transfer clerk or transfer agent with a request to register a transfer of
shares, the corporation is under a duty to register the transfer, cancel the
certificate presented, and issue a new certificate if:
A. The certificate is endorsed or the instructions originated by the
appropriate person or persons;
B. Reasonable assurance is given that those endorsements or
instructions are genuine and effective;
C. The corporation has no duty to inquire into adverse claims or has
discharged any such duty;
D. Any applicable law relating to the collection of taxes has been
complied with; and
E. The transfer is in fact rightful or is to a bona fide purchaser.
Section 2.03 Lost Certificates
Where a certificate is alleged to have been lost, destroyed or
stolen, the corporation shall issue a new certificate in place of the original
if the owner:
A. So requests, in writing, before the corporation has notice that
the certificate has been acquired by a bona fide purchaser; and
B. If so requested by the Board, gives the corporation a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, destruction or theft of such certificate or the
issuance of such new certificate.
Except as provided above, no new certificate for shares shall be issued in
lieu of an old certificate unless the corporation is ordered to do so by a
court in a judgment in an action brought in a court of appropriate
jurisdiction.
Section 2.04 Meetings of Stockholders
A. Place of Meetings
Meetings of Stockholders shall be held at any place within
or without the State of Delaware designated by the Board. In the absence of
any such designation, Stockholders' meetings shall be held at the principal
executive office of the corporation.
-3-
B. Annual Meetings
An annual meeting of the Stockholders of the corporation
shall be held for the election of directors on the date and at the time fixed,
from time to time, by the Board. Subject to the other terms and provisions of
these Bylaws, any other proper subject for Stockholder consideration may be
transacted which may be presented at the meeting.
C. Special Meetings
Special meetings of the Stockholders may be called by the
Board, the Chairman of the Board, the President, or by the holders of shares
entitled to cast not less than thirty-three percent (33%) of the votes at the
meeting. Upon request in writing to the Chairman of the Board, the President,
any Vice President or the Secretary by any person (other than the Board)
entitled to call a special meeting of Stockholders, the officer forthwith
shall cause notice to be given to the Stockholders entitled to vote that a
meeting will be held at a time and for the purposes requested by the person or
persons calling the meeting not less than thirty-five (35) nor more than sixty
(60) days after the receipt of the request. If the notice is not given within
twenty (20) days after receipt of the request, the persons entitled to call
the meeting may give the notice. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting
pursuant to the notice.
D. Notice of Meetings
1. Except to the extent otherwise provided by applicable law
or unless lapse of time shall be waived, written notice of any Stockholders'
meeting 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 thereat.
Each notice shall state the place, date and hour of the meeting and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. The notice of any meeting may be accompanied by any additional
documents, statements or information which may be selected by the persons
calling the meeting or which may be prescribed by any applicable law or
regulation.
2. If mailed, notice is given when deposited in the United
States mail, postage prepaid, a directed to the Stockholder at his or her
address as it appears on the records of the corporation. An affidavit of the
Secretary or an Assistant Secretary or of the transfer agent of the
corporation that the notice has been given shall, in the absence of fraud, be
prima facie evidence of the facts stated therein.
E. Adjourned Meetings and Notice Thereof
Any meeting of Stockholders may be adjourned from time to
time by a vote of a majority of the shares represented either in person or by
proxy whether or not a quorum is present. When a Stockholders' meeting is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which
the adjournment is taken. At the adjourned meeting the corporation may
transact any business which might have been transacted at the original
meeting. However, 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.
-4-
F. Waiver of Notice
The transactions of any meeting of Stockholders, however
called and noticed, and wherever held, are as valid as though had at a meeting
duly held after regular call and notice, if a quorum is present either in
person or by proxy, and if, either before or after the meeting, each of the
persons entitled to vote, not present in person or by proxy, signs a written
waiver of notice or a consent to the holding of the meeting or an approval of
the minutes thereof. No Stockholder may object to any failure to comply with
the provisions of this Section if either (i) at any time before or after the
meeting he or she exercises a written waiver of notice or (ii) he or she
attends one meeting in person or by proxy, except if he or she attends solely
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. Any waiver of notice or consent need not specify either the business
to be transacted or the purpose of any annual or special meeting of
Stockholders. All such waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
G. Quorum/Majority Vote
Except as otherwise provided by the laws of the State of
Delaware, a majority of shares entitled to vote, present in person, or
represented by proxy, shall constitute a quorum for the transaction of
business. If a quorum is present, the affirmative vote of the majority of the
voting shares represented at the meeting and entitled to vote on any matter
shall be the act of the Stockholders, unless the vote of a greater number, or
voting by classes, is required by law, under the Certificate of Incorporation
of the corporation or these Bylaws. The Stockholders present at a duly called
or held meeting at which a quorum is present may continue to transact business
until adjournment notwithstanding the withdrawal of enough Stockholders to
leave less than a quorum, provided that any action taken (other than
adjournment) must be approved by at least a majority of the shares required to
constitute a quorum.
H. Conduct of Meetings
Meetings of Stockholders shall be presided over by one of the
following officers in the following order by seniority, if present and acting:
Chairman of the Board, Vice Chairman of the Board, if any, Chief Executive
Officer, the President or any Vice President selected in the order of
chronological age. The Secretary of the corporation or, in his or her absence,
any Assistant Secretary shall act as Secretary of the meeting. In lieu of the
foregoing persons, the Board may designate a Chairman and/or Secretary at any
meeting of the Stockholders. All meetings shall be conducted by reference to
Xxxxxxx Rules of Order or other parliamentary system selected by the chairman
of the meeting and not inconsistent with these Bylaws, the Certificate of
Incorporation or any applicable law.
I. Nominations for Directors; Business to be Brought Before
Meeting
1. Nominations of persons for election to the Board of
Directors and the proposal of business to be considered by the Stockholders
may be made at an annual meeting of Stockholders (a) pursuant to the
corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any Stockholder of the corporation who was a Stockholder
of record at the time of giving of notice provided for in this Section I, who
is entitled to vote at the meeting and who complies with the notice procedures
set forth in this Section I.
-5-
2. For nominations or other business to be properly brought
before an annual meeting by a Stockholder pursuant to clause (c) of paragraph
1 of this Section I, the Stockholder must have given timely notice thereof in
writing to the Secretary of the corporation and such other business must
otherwise be a proper matter for Stockholder action. To be timely, a
Stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the corporation not later than the close of business on
the one hundred twentieth (120th) day nor earlier than the close of business
on the one hundred fiftieth (150th) day prior to the first anniversary of the
date of the proxy statement delivered to Stockholders in connection with the
preceding year's annual meeting; provided, however, that if either (i) the
date of the annual meeting is more than thirty (30) days before or more than
sixty (60) days after such an anniversary date or (ii) no proxy statement was
delivered to Stockholders in connection with the preceding year's annual
meeting, notice by the Stockholder to be timely must be so delivered not
earlier than the close of business on the ninetieth (90th) day prior to such
annual meeting and not later than the close of business on the later of the
sixtieth (60th) day prior to such annual meeting or the close of business on
the tenth (10th) day following the day on which public announcement of the
date of such meeting is first made by the corporation. Such Stockholder's
notice shall set forth (a) as to each person whom the Stockholder proposes to
nominate for election or reelection as a director, all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected); (b) as
to any other business that the Stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting and any
material interest in such business of such Stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
Stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
Stockholder, as they appear on the corporation's books, and of such beneficial
owner and (ii) the class and number of shares of capital stock of the
corporation that are owned beneficially and held of record by such Stockholder
and such beneficial owner.
3. Notwithstanding anything in the second sentence of
paragraph 2 of this Section I to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the corporation is
increased and there is no public announcement by the corporation naming all of
the nominees for director or specifying the size of the increased Board of
Directors at least seventy (70) days prior to the first anniversary of the
preceding year's annual meeting (or, if the annual meeting is held more than
thirty (30) days before or sixty (60) days after such anniversary date, at
least seventy (70) days prior to such annual meeting), a Stockholder's notice
required by this Section I shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive office of the
corporation not later than the close of business on the tenth (10th) day
following the day on which such public announcement is first made by the
corporation.
4. For purposes of this Section I, "public announcement"
shall mean disclosure in a press release reported by the Dow Xxxxx News
Service, Associated Press or comparable national news service or in a document
publicly filed by the corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 and 15(d) of the Exchange Act.
5. Notwithstanding the foregoing provisions of this Section
I, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder
-6-
with respect to the matters set forth in this Section I. Nothing in this
Section I shall be deemed to affect any rights (i) of stockholders to request
inclusion of proposals in the corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act or (ii) of the holders of any series of Preferred
Stock to elect directors under specified circumstances.
Section 2.05 Voting of Shares
A. In General
Except as may otherwise be prescribed by the provisions of
the Certificate of Incorporation, each share of stock shall entitle the holder
thereof to one vote. In the election of directors, a plurality of the votes
cast shall elect. Any other action shall be authorized by a majority of the
votes cast except where the applicable law in the State of Delaware prescribes
a different percentage of votes and/or a different exercise of voting power,
and except as may be otherwise prescribed by the provisions of the Certificate
of Incorporation or these Bylaws.
B. Secret Voting by Ballot
Elections for directors and voting in other matters need not
be by secret ballot unless any Stockholder demands voting by secret ballot on
the applicable issues at the meeting and before the voting begins.
C. Voting of Shares by Certain Holders
Shares of capital stock of the corporation standing in the
name of another corporation, domestic or foreign, and entitled to vote may be
voted by such officer, agent or proxy as the bylaws of such other corporation
may prescribe or, in the absence of such provision, as the board of directors
of such other corporation may determine.
Shares of capital stock of the corporation standing in the
name of a deceased person, a minor, an incompetent or a corporation declared
bankrupt and entitled to vote may be voted by an administrator, executor,
guardian, conservator or trustee, as the case may be, either in person or by
proxy, without transfer of such other corporation into the name of the
official so voting.
A Stockholder whose shares of capital stock of the
corporation are pledged shall be entitled to vote such shares unless on the
transfer books of the corporation the pledgor has expressly empowered the
pledgee to vote such shares, in which case only the pledgee, or such pledgee's
proxy, may represent such shares and vote thereon.
Shares of capital stock of the corporation belonging to the
corporation, or to another corporation if a majority of the shares entitled to
vote in the election of directors of such other corporation shall be held by
the corporation, shall not be voted at any meeting of Stockholders and shall
not be counted in determining the total number of outstanding shares for the
purpose of determining whether a quorum is present. Nothing in this Section
2.05C shall be construed to limit the right of the corporation to vote shares of
capital stock of the corporation held by it in a fiduciary capacity.
-7-
D. Action Without a Meeting
Except as provided in Sections 3.04 and 3.05 hereof, the
Stockholders of the corporation may not take any action by written consent in
lieu of a meeting.
Section 2.06 Proxies
Every person entitled to vote for directors or any other matter shall
have the right to do so either in person or by one or more agents authorized
by a written proxy signed by the person and filed with the Secretary of the
corporation. A proxy shall be deemed signed if the Stockholder's name is
placed on the proxy (whether by manual signature, typewriting, telegraphic
transmission, or otherwise) by the Stockholder or Stockholder's attorney in
fact. A validly executed proxy which does not state that it is irrevocable
shall continue in full force and effect unless (i) revoked by the person
executing it, before the vote pursuant to that proxy, by a writing signed by
the person and delivered to the corporation stating that the proxy is revoked,
or by a subsequent proxy executed by, or attendance at the meeting and voting
in person by the person executing the proxy; or (ii) written notice of the
death or incapacity of the maker of that proxy is received by the corporation
before the vote pursuant to that proxy is counted; provided, however, that no
proxy shall be valid after the expiration of eleven (11) months from the date
of the proxy, unless otherwise provided in the proxy. The revocability of a
proxy that states on its face that it is irrevocable shall be governed by the
provisions of the law applicable in the State of Delaware.
Section 2.07 Inspectors of Election
A. Appointment
The Board shall, in advance of any meeting of Stockholders,
appoint one or more inspectors (individually an "Inspector" and collectively,
the "Inspectors") to act at such meeting and make a written response thereof.
The Board may designate one or more persons as alternate Inspectors to replace
any Inspector who shall fail to act. If no Inspector or alternate shall be
able to act at such meeting, the person presiding at such meeting shall
appoint one or more other persons to act as Inspectors thereat. Each
Inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath faithfully to execute the duties of an Inspector with strict
impartiality and according to the best or his or her ability.
B. Duties
The Inspectors shall (i) ascertain the number of shares of
capital stock of the corporation outstanding and the voting power of each,
(ii) determine the shares of capital stock of the corporation represented at
such meeting and the validity of proxies and ballots, (iii) count all votes
and ballots, (iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the Inspectors and
(v) certify their determination of the number of such shares represented at
such meeting and their count of all votes and ballots. The Inspectors may
appoint or retain other persons or entities to assist them in the performance
of their duties.
The date and time of the opening and closing of the polls
for each matter upon which the Stockholders will vote at such meeting shall be
announced at such meeting. No ballots, proxies or votes, nor duly revocations
thereof or changes thereto, shall be accepted by the Inspectors after the
closing of
-8-
the polls unless the Court of Chancery of the State of Delaware upon application
by any Stockholder shall determine otherwise.
In determining the validity and counting of proxies and
ballots, the Inspectors shall be limited to an examination of the proxies,
ballots and the regular books and records of the corporation, except that the
Inspectors may consider other reliable information for the limited purpose of,
reconciling proxies and ballots submitted by or on behalf of banks, brokers,
their nominees or similar persons which represent more votes than the holder
of a proxy is authorized by a Stockholder of record to cast or more votes than
such Stockholder holds of record. If the Inspectors consider other reliable
information for the limited purpose permitted herein, the Inspectors, at any
time they make their certification pursuant to this Section 2.07(B), shall
specify the precise information considered by them, including the person or
persons from whom they obtained such information, when the information was
obtained, the means by which such information was obtained and the basis for
the Inspectors' belief that such information is accurate and reliable.
Section 2.08 Record Date
In order that the corporation may determine the Stockholders entitled
to notice of or to vote at any meeting or entitled to express consent to any
corporate action without a meeting or entitled to receive payment of any
dividend or other distribution or allotment of any rights or entitled to
exercise any rights in respect of any other lawful action, the Board may fix,
in advance, a record date, which shall not be more than sixty (60) nor less
than ten (10) days prior to the date of such meeting nor more than sixty (60)
days prior to any such action. If no record date is fixed:
A. 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 business day next preceding the day on which notice is given or, if notice
is waived, at the close of business on the business day next preceding the day
on which the meeting is held.
B. The record date for determining Stockholders entitled to give
consent to corporate action in writing without a meeting, when no prior action
by the Board has been taken, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered
(by hand or by certified or registered mail, return receipt requested) to the
corporation's registered agent in the State of Delaware, its principal place
of business, or to the Secretary.
C. The record date for determining Stockholders for any other
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.
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 unless
the Board fixes a new record date for the adjourned meeting, but the Board
shall fix a new record date if the meeting is adjourned for more than thirty
(30) days from the date set for the original meeting. The stock ledger shall
be the only evidence as to who are the Stockholders entitled to examine the
stock ledger, the stock list or the books of the corporation, or to vote in
person or by proxy at any meeting of Stockholders.
-9-
ARTICLE III
Directors
Section 3.01 Powers
Subject to the provisions of the laws of the State of Delaware and
the Certificate of Incorporation, the business and affairs of the corporation
shall be managed and all corporate powers shall be exercised by or under the
direction of the Board. The Board may delegate the management of the
day-to-day operations of the business of the corporation to a management
company or other person provided that the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised under
the ultimate direction of the Board.
Section 3.02 Committees of the Board
A. The Board shall, by resolution adopted by a majority of the whole
Board, designate an Executive Committee consisting of three (3) directors, to
serve at the pleasure of the Board. The Chairman of the Board, or Co-Chairmen
of the Board, shall be members of the Executive Committee. The resolution
adopted by the Board shall provide that during intervals between meetings of
the Board, the Executive Committee shall have and may exercise all the powers
and authority of the Board in the management of the business and affairs of
the corporation in all cases; provided, however, that the Executive Committee
shall not have the power or authority to (i) take any of the actions set forth
in subsection B, nos. 1-6, below, (ii) contravene any specific actions or
directions of the Board, or (iii) act on any matter upon which committees may
not act as otherwise provided in the Delaware General Corporation Law. A
majority of the authorized number of directors on the Executive Committee
shall constitute a quorum for the transaction of such committee's business.
B. The Board may, by resolution adopted by a majority of the whole
Board designate one (1) or more committees, each consisting of one (1) or more
directors, to serve at the pleasure of the Board. Any such committee, to the
extent provided in the resolution of the Board and subject to the provisions
of the applicable law in the state of Delaware, shall have and may exercise
all the powers and authority of the Board in the management of the business
and affairs of the corporation, and may authorize the corporate seal to be
affixed to all papers which may require it, but no such committee shall have
the power or authority with respect to:
1. Amending the Certificate of Incorporation (except that a
Committee may, to the extent provided in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board is provided
in Section 151(a) of the Delaware General Corporation Law, fix the
designations and any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of shares for, shares of
any other class or classes of stock of the corporation or fix the number of
shares of any series of stock or authorize the increase or decrease of the
shares of any series).
2. Adopting an agreement of merger or consolidation under
Sections 251 or 252 of the Delaware General Corporation Law.
3. Recommending to the Stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets.
-10-
4. Recommending to the Stockholders a dissolution of the
Corporation or a revocation of a dissolution.
5. Amending the Bylaws of the Corporation.
6. Unless the resolutions, Bylaws, or Certificate of
Incorporation expressly so provide, declaring a dividend, authorizing the
issuance of stock or adopting a certificate of ownership and merger pursuant
to Section 253 of the Delaware General Corporation Law.
C. In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting may not appoint another
member of the Board to act at the meeting in place of any such absent or
disqualified member.
Section 3.03 Election and Term of Office
The directors shall be elected at each annual meeting of Stockholders,
but, if any such annual meeting is not held or the directors are not elected
thereat, the directors may be elected at any special meeting of Stockholders
held for that purpose. All directors shall hold office until the expiration of
the term for which elected and until their respective successors are elected
and qualified.
Section 3.04 Vacancies
A vacancy or vacancies in the Board shall be deemed to exist in case
of death, resignation or removal of any director, or if the authorized number
of directors be increased, or if the Stockholders fail, at any annual or
special meeting of Stockholders, at which any director or directors are
elected, to elect to fill the full authorized number of directorships. Except
for a vacancy created by the removal of a director, vacancies on the Board may
be filled by a majority of the directors then in office, whether or not less
than a quorum, or by a sole remaining director, and each director so elected
shall hold office until his successor is elected. A vacancy on the Board
created by the removal of a director may only be filled by the vote of a
majority of the shares entitled to vote represented at a duly held meeting at
which a quorum is present, or, notwithstanding anything to the contrary
contained in these Bylaws, by the written consent of a majority of the
outstanding shares entitled to vote (obtained in accordance with the second
paragraph of Section 3.05 hereof). The Stockholders may elect a director or
directors at any time to fill any vacancy or vacancies not filled by the
directors. Insofar as a director or directors are elected by a class or series
of stock, vacancies or newly created directorships are to be filled only by
the remaining director or directors elected by such class or series or by the
vote of a majority of the shares of such class or series.
Section 3.05 Removal
Subject to the rights of any shares having a preference over the
Common Stock of the corporation as to dividends or upon liquidation to elect
directors under specified circumstances, any director may be removed from
office, with or without cause, but only by the affirmative vote of the holders
of a majority of the combined voting power of all then outstanding shares
entitled to vote generally in the election of directors, voting together as a
single class.
Notwithstanding anything to the contrary contained in these Bylaws,
such action may be taken at any annual or special meeting of Stockholders or
such action may be taken without a meeting, without
-11-
prior notice, and without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of outstanding shares
having not less than the minimum number of votes that would be necessary to
take such action at a meeting at which all shares entitled to vote thereon were
present and vote and shall be delivered to the corporation by delivery (by hand
or by certified and registered mail, return receipt requested) to its
registered office in the State of Delaware, its principal place of business or
to the Secretary of the corporation. Where the approval of Stockholders is
given without a meeting by less than unanimous written consent, unless the
consents of all Stockholders entitled to vote have been solicited in writing,
the Secretary shall give prompt notice of the corporate action approved by the
Stockholders without a meeting. Such notice shall be given in the same manner
as notice of Stockholders' meetings.
Section 3.06 Resignation
Any director may resign effective upon giving written notice to the
Chairman of the Board, the Chief Executive Officer, the President, the
Secretary or the Board of the corporation, unless the notice specifies a later
time for the effectiveness of such resignation. If the resignation is
effective at a future time the Board or the Stockholders shall have the power
to elect a successor to take office when the resignation is to become
effective.
Section 3.07 Meetings of the Board
A. Regular Meetings
Regular meetings of the Board shall be held at such time and
place within or without the State of Delaware as may be determined from time
to time by resolution of the Board or by written consent of all members of the
Board or in these Bylaws. Regular meetings shall be held upon oral or written
notice given by any means in sufficient time for the convenient assembly of
directors; forty-eight (48) hours' notice delivered by mail or twelve (12)
hours' notice delivered personally or by telephone, telegraph or telecopier or
other similar means shall be deemed sufficient for the foregoing purpose. Any
notice shall state the date, place and hour of the meeting. Notice of a
meeting need not be given to any director 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.
B. Organization Meetings
Immediately following each annual meeting of Stockholders,
the Board shall hold a regular meeting for the purpose of organization,
election of officers and the transaction of other business.
Notice of such meetings is hereby dispensed with.
C. Special Meetings
Special meetings of the Board for any purpose or purposes
shall be called at any time or place by the Chairman of the Board or the Chief
Executive Officer or the President or by any Vice President or the Secretary
or any two directors. Special meetings shall be held upon oral or written
notice given by any means in sufficient time for the convenient assembly of
directors; seventy-two (72) hour's notice delivered by mail or twenty-four
(24) hour's notice delivered personally or by telephone or telegraph or other
similar means shall be deemed sufficient for the foregoing purpose. Any notice
shall state the date, place and hour of the meeting. Notice of a meeting need
not be given to any director
-12-
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.
D. Notice of Adjournment
A majority of the directors present, whether or not a quorum
is present, may adjourn any meeting to another time and place. If the meeting
is adjourned for more than twenty-four (24) hours, notice of such adjournment
to another time and place shall be given prior to the time of the adjourned
meeting to the directors who were not present at the time of adjournment, in
the same manner set forth above for special meetings in Section 3.07.C.
E. Place of Meeting
Meetings of the Board may be held at any place within or
without the State of Delaware which has been designated in the notice of the
meeting or, if not stated in the notice or there is no notice, then such
meeting shall be held at the principal executive office of the corporation, or
such other place designated by resolution of the Board.
F. Presence by Conference Telephone Call
Members of the Board or any committee designated by the
Board may participate in a meeting through use of conference telephone or
similar communications equipment, so long as all members participating in such
meeting can hear each other. Such participation constitutes presence in person
at such meeting.
G. Quorum/Voting
Five (with the composition of such five subject to the terms
of any stockholder voting agreement to which the Company is a party) of the
seven authorized directors constitutes a quorum of the Board for the
transaction of business; provided, however, that in the absence of a quorum, a
majority of the directors present at any directors' meeting, either regular or
special, may adjourn any meeting to another time and place. If the meeting is
adjourned for more than twenty-four (24) hours, notice of any adjournment to
another time or place shall be given prior to the time of the adjourned
meeting to the directors who were not present at the time of adjournment, in
the same manner as set forth above for special meetings in Section 3.07.C.
Every act or decision done or made by a majority of the directors present at a
meeting duly held at which a quorum is present is the act of the Board, unless
a greater number be required by law, by the Certificate of Incorporation or by
the provisions of these Bylaws; provided, however, that these Bylaws hereby
authorize the Board of Directors to adopt operating resolutions requiring a
greater than majority vote with respect to certain actions. 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 such meeting.
H. Waiver of Notice
Whenever notice is required to be given to any director
pursuant to Delaware law, the corporation's Certificate of Incorporation or
these Bylaws, a written waiver thereof, signed by such director, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a director at a meeting shall constitute a waiver of notice of
such meeting except when the director
-13-
attends the meeting for the express and sole purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. All such waivers, consents and
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section 3.08 Action Without Meeting
Any action required or permitted to be taken at any meeting of the
Board or any committee thereof may be taken without a meeting if all members
of the Board or any committee, as the case may be, consent in writing to such
action and the writing or writings are filed with the minutes or proceedings
of the Board or committee, as the case may be.
Section 3.09 Fees and Compensation
Directors and members of the committees may receive such
compensation, if any, for their services, and such reimbursement of expenses,
as may be fixed or determined by resolution of the Board.
Section 3.10 Interested Directors
The presence of a director, who is directly or indirectly a party in
a contract or transaction with the corporation, or between the corporation and
any other corporation, partnership, association or other organization in which
such director is a director or officer or has a financial interest, may be
counted in determining whether a quorum is present at any meeting of the Board
of Directors or a committee thereof at which such contract or transaction is
discussed or authorized, and such director may participate in such meeting to
the extent permitted by applicable law, including Section 144 of the Delaware
General Corporation Law.
ARTICLE IV
Officers
Section 4.01 Officers
The officers of the corporation shall consist of a Chairman (or
Co-Chairmen) of the Board or a Chief Executive Officer (or Co-Chief Executive
Officers), or both, a President, a Secretary, a Chief Financial Officer, and
such additional officers as may be elected or appointed in accordance with
Section 4.03 of these Bylaws and as may be necessary to enable the corporation
to sign instruments and share certificates. Any number of offices may be held
by the same person.
Section 4.02 Elections
All officers of the corporation, except such officers as may be
otherwise appointed in accordance with Section 4.03, shall be chosen by the
Board, and each shall hold his or her office until he or she shall resign or
be removed or is otherwise disqualified to serve, or until his or her
successor is chosen and qualified.
-14-
Section 4.03 Other Officers
The Board, at their discretion, may appoint, or empower the Chief
Executive Officer to appoint a Chief Operating Officer, one or more Vice
Presidents, one or more Assistant Secretaries, a Treasurer, one or more
Assistant Treasurers, or such other officers as the business of the
corporation may require, each of whom shall hold office for such period, have
such authority and perform such duties as the Board or the Chief Executive
Officer may from time to time determine.
Section 4.04 Removal
Any officer may be removed, either with or without cause, by the
Board, at any regular or special meeting thereof or by any officer upon whom
such power of removal may be conferred by the Board (subject, in each case, to
the rights, if any, of an officer under contract of employment).
Section 4.05 Resignation
Any officer may resign at any time by giving written notice to the
Board or to the Chief Executive Officer, or to the Secretary of the
corporation without prejudice to the rights, if any, of the corporation under
any contract to which the officer is a party. Any such resignation shall take
effect at the time of the receipt of such notice or at any later time
specified thereon and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 4.06 Vacancies
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed
in these Bylaws for regular appointments to such office.
Section 4.07 Chairman of the Board
The Board may choose a Chairman (or Co-Chairmen) of the Board from
among its members. The Chairman of the Board, if there shall be such an
officer, shall, if present, preside at all meetings of the Board and at all
meetings of the Stockholders and exercise and perform such other powers and
duties as may be from time to time assigned to him or her by the Board. If
there is no Chief Executive Officer or President, the Chairman of the Board
shall in addition be the Chief Executive Officer of the corporation and shall
have the powers and duties prescribed in Section 4.08 below. The Chairman of
the Board shall hold office until the organization meeting of the Board next
succeeding his or her election and until his or her successor is elected and
qualified or until his or her earlier resignation or removal.
Section 4.08 Chief Executive Officer
Subject to such supervisory powers, if any, as may be given by the
Board to the Chairman of the Board, if there be such an officer, the Chief
Executive Officer (or Co-Chief Executive Officers) shall be the general
manager and Chief Executive Officer of the corporation and shall, subject to
the control of the Board, have general supervision, direction and control of
the business and affairs of the corporation. In the absence of the Chairman of
the Board, or if there be none, he or she shall preside at all meetings of the
Board. He or she shall be ex-officio a member of all the standing committees,
including the Executive Committee, if any, and shall have the general powers
and duties of management usually vested
-15-
in the office of Chief Executive Officer of a corporation, and shall have such
other powers and duties as may be prescribed by the Board or these Bylaws.
Section 4.09 President
In the absence or disability of the Chief Executive Officer (or both
Co-Chief Executive Officers if there are Co-Chief Executive Officers), the
President shall perform all the duties of the Chief Executive Officer and when
so acting shall have all the powers of, and be subject to the restrictions
upon, the Chief Executive Officer. The President (or Co-Presidents) shall have
such other powers and duties as may be prescribed by the Board or these Bylaws.
Section 4.10 Secretary
The Secretary shall keep, or cause to be kept, at the principal
executive office or such other place as the Board may order, a book of minutes
of all meetings of Stockholders, the Board and committees of the Board, with
the time and place of holding, whether regular or special, and if special, how
authorized, the notice thereof given, the names of those present at the
directors' or committee meetings, the number of shares present or represented
at Stockholders' meetings, and the proceedings thereof.
The Secretary shall keep or cause to be kept, at the principal
executive office or at the office of the corporation's transfer agent or
registrar, a record of its Stockholders giving the names and addresses of all
Stockholders and the number and class of shares held by each, the number and
date of certificates issued for shares, and the number and date of
cancellation of every certificate surrendered for cancellation. This
information may be kept in written form or in any other form capable of being
converted into written form.
The Secretary shall give, or cause to be given, notice of all
meetings of the Stockholders and of the Board required by the Bylaws or by law
to be given, and shall have such other powers and perform such other duties as
may be prescribed by the Board or by the Bylaws.
Section 4.11 Chief Financial Officer
The Chief Financial Officer shall have general supervision, direction
and control of the financial affairs of the corporation and shall have such
other powers and duties as may be prescribed by the Board or these Bylaws. In
the absence of a named Treasurer, the Chief Financial Officer shall also have
the powers and duties of the Treasurer as hereinafter set forth and shall be
authorized and empowered to sign as Treasurer in any case where such officer's
signature is required.
Section 4.12 Treasurer
The Treasurer shall keep or cause to be kept the books and records of
account as provided for and in accordance with Section 6.01 of these Bylaws.
The books of account shall at all reasonable times be open to inspection by
any director. The Treasurer shall deposit all moneys and other valuables in
the name and to the credit of the corporation with such depositaries as may be
designated by the Board. He or she shall disburse the funds of the corporation
as may be ordered by the Board, shall render to the Chief Executive Officer
and directors, whenever they request it, an account of all of his transactions
as Treasurer and of the financial condition of the corporation, and shall have
such other powers and perform such other duties as may be prescribed by the
Board or these Bylaws.
-16-
Section 4.13 Vice President
In the absence or disability of the President (or both Co-Presidents
if there are Co-Presidents), the Vice Presidents, in order of their rank as
fixed by the Board, or, if not ranked, the Vice President designated by the
Board, shall perform all the duties of the President and when so acting shall
have all the powers of, and be subject to the restrictions upon, the
President. The Vice Presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them.
Section 4.14. Chief Operating Officer.
The Chief Operating Officer shall have such authority and perform
such duties as the Board may from time to time determine.
Section 4.15. Co-Officers.
If any office is held by two persons as co-officers, each such person
shall independently have the full power and authority vested in such office,
unless otherwise prescribed.
ARTICLE V
Indemnification and Insurance
The corporation shall, to the fullest extend permitted by Section 145
of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have the
power to indemnify under said section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any 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, and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such
person. Expenses incurred by any such person in connection with a proceeding
shall be paid by the corporation in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amounts, upon such terms and conditions as the Board of Directors
deems appropriate, if it shall ultimately be determined that such person is
not entitled to be indemnified by the corporation.
ARTICLE VI
Miscellaneous
Section 6.01 Books of Account and Proceedings
The corporation shall keep adequate and correct books and records of
account and shall keep minutes of the proceedings of its Stockholders, Board
and committees of the Board and shall keep at its principal executive office,
or at the office of its transfer agent or registrar, a record of its
Stockholders, giving the names and addresses of all Stockholders and the
number and class of shares held by each. Such minutes shall be kept in written
form. Such other books and records shall be kept either in written form or in
any other form capable of being converted into written form.
-17-
Section 6.02 Rights of Inspection
A. By Stockholders
1. Record of Stockholders
The Secretary shall prepare and make, at least ten (10) days
before every meeting of Stockholders, a complete list of Stockholders entitled
to vote at the meeting, arranged in alphabetical order, and showing the
address of each Stockholder and the number of shares registered in the name of
such 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, at such
place 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. Further, any Stockholder,
in person or by attorney or other agent, upon written demand under oath
stating the purposes thereof, has the right, during usual business hours, to
inspect for any proper purpose the corporation's list of Stockholders. Such
Stockholder has the right to make copies or extracts therefrom. A proper
purpose for this Section 6.02 shall mean a purpose reasonably related to such
person's interest as a Stockholder. In every instance where an attorney or
other agent shall be the person who seeks the right to inspection, the demand
under oath shall be accompanied by a power of attorney or such other writing
which authorizes the attorney or other agent to so act on behalf of the
Stockholder. The demand under oath shall be directed to the corporation at its
principal place of business. The corporation shall either permit the right to
inspection or reply to the written demand within five (5) business days of
receiving the demand.
2. Corporate Records
Any Stockholder, in person or by attorney or other agent,
shall upon written demand under oath stating the purpose thereof, have the
right during business hours to inspect for any proper purpose the accounting
books and records and minutes of proceedings of the Stockholders and the Board
and committees of the Board. This right of inspection shall also extend to the
records of any subsidiary of the corporation.
B. By Directors
Every director shall have the right at any reasonable time
to examine the corporation's stock ledger, a list of its Stockholders and its
other books and records for a purpose reasonably related to his or her
position as a director Such inspection by a director may be made in person or
by agent or attorney and the right of inspection includes the right to copy
and make extracts.
Section 6.03 Checks, Drafts, Etc.
All checks, drafts or other orders for payment of money, notes or
other evidences of indebtedness, issued in the name of or payable to the
corporation, shall be signed or endorsed by such person or persons and in such
manner as, from time to time, shall be determined by resolution of the Board.
Section 6.04 Authority to Execute Contracts
-18-
The Board may authorize any officer or officers, agent or agents, to
enter into any contract or execute any instrument in the name of and on behalf
of the corporation, and subject to the applicable laws of the State of
Delaware. Such authority may be general or confined to specific instances and,
unless so authorized by the Board, no officer, agent or employee shall have
the power or authority to bind the corporation by any contract or engagement
or to pledge its credit or to render it liable for any purpose or to any
amount.
Section 6.05 Representation of Shares of Other Corporations
The Chairman of the Board, if any, the Chief Executive Officer,
President or any Vice President and the Secretary or any Assistant Secretary
of this corporation are 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 the corporation. The
authority herein granted to said officers to vote or represent on behalf of
this corporation any and all shares held by this corporation in any other
corporation or corporations may be exercised either by such officers in person
or by any other person authorized so to do by proxy or power of attorney duly
executed by said officers.
Section 6.06 Construction and Definitions
Unless the context otherwise requires, the general provisions, rules
of construction and definition contained in the corporation laws of the State
of Delaware shall govern the construction of these Bylaws. Without limiting
the generality of the foregoing, the singular number includes the plural and
the plural number includes the singular, and the term "person" includes a
corporation as well as a natural person.
ARTICLE VII
Amendments
Section 7.01 Power of Stockholders
New Bylaws may be adopted or these Bylaws may be amended or repealed
by the vote of Stockholder entitled to exercise a majority of the voting power
of the corporation or by the written consent of such Stockholders, except as
otherwise provided by law or by the Certificate of Incorporation.
Section 7.02 Power of Directors
Subject to the right of Stockholders as provided in Section 7.01 to
adopt, amend or repeal Bylaws, any Bylaw, including this Section 7.02, may be
adopted, amended or repealed by the affirmative vote of at least sixty-six and
two-thirds percent (66-2/3%) of the authorized number of members of the Board
of Directors.
ARTICLE VIII
Emergency Provisions
Section 8.01 General
The provisions of this Article shall be operative only during any
emergency resulting from an
-19-
attack on the United States or on a locality in which the corporation conducts
its business or customarily holds meetings of the Board or Stockholders, or
during any nuclear or atomic disaster, or during the existence of any
catastrophe or other similar emergency condition, as a result of which a quorum
of the Board or a standing committee thereof cannot be convened. Said
provisions in such event shall override all other Bylaws of the corporation in
conflict with any provisions of this Article, and shall remain operative so
long as it remains impossible or impracticable to continue the business of the
corporation otherwise, but thereafter shall be inoperative; provided that all
actions taken in good faith pursuant to such provisions shall thereafter remain
in full force and effect unless and until revoked by action taken pursuant to
the provisions of the Bylaws other than those contained in this Article. No
officer, director or employee acting in accordance with any provision of this
Article shall be liable except for willful misconduct.
Section 8.02 Unavailable Directors
All directors of the corporation who are not available to perform
their duties as directors by reason of physical or mental incapacity or for
any other reason or who are unwilling to perform their duties or whose
whereabouts are unknown shall automatically cease to be directors, with like
effect as if such persons had resigned as directors, so long as such
unavailability continues.
Section 8.03 Authorized Number of Directors
The authorized number of directors shall be the number of directors
remaining after eliminating those who have ceased to be directors pursuant to
Section 8.02, or the minimum number required by law, whichever number is
greater.
Section 8.04 Quorum
The number of directors necessary to constitute a quorum shall be
one-third (1/3) of the authorized number of directors as specified in the
foregoing Section, or such other minimum number as, pursuant to the law or
lawful decree then in force, it is possible for the Bylaws of a corporation to
specify.
Section 8.05 Creation of Emergency Committee
In the event the number of directors remaining after eliminating
those who have ceased to be directors pursuant to Section 8.02 is less than
the minimum number of authorized directors required by law, then until the
appointment of additional directors to make up such required minimum, all the
powers and authorities which the Board could by law delegate, including all
powers and authorities which the Board could delegate to a committee, shall be
automatically vested in an emergency committee, and the emergency committee
shall thereafter manage the affairs of the corporation pursuant to such powers
and authorities and shall have all other powers and authorities as may by law
or lawful decree be conferred on any person or body of persons during a period
of emergency.
Section 8.06 Constitution of Emergency Committee
The emergency committee shall consist of all the directors remaining
after eliminating those who have ceased to be directors pursuant to Section
8.02, provided that such remaining directors are not less than three (3) in
number. In the event such remaining directors are less than three (3) in
number, the
-20-
emergency committee shall consist of three (3) persons, who shall be the
remaining director or directors and either one (1) or two (2) officers or
employees of the corporation, as the remaining director or directors may in
writing designate. If there is no remaining director, the emergency committee
shall consist of the three (3) most senior officers of the corporation who are
available to serve, and if and to the extent that officers are not available,
the most senior employees of the corporation. Seniority shall be determined in
accordance with any designation of seniority in the minutes of the proceedings
of the Board, and in the absence of such designation, shall be determined by
rate of remuneration. In the event that there are no remaining directors and no
officers or employees of the corporation available, the emergency committee
shall consist of three (3) persons designated in writing by the Stockholder
owning the largest number of shares of record as of the date of the last record
date.
Section 8.07 Powers of Emergency Committee
The emergency committee, once appointed, shall govern its own
procedures and shall have power to increase the number of members thereof
beyond the original number, and in the event of a vacancy or vacancies
therein, arising at any time, the remaining member or members of the emergency
committee shall have the power to fill such vacancy or vacancies. In the event
at any time after its appointment all members of the emergency committee shall
die or resign or become unavailable to act for any reason whatsoever, a new
emergency committee shall be appointed in accordance with the foregoing
provisions of this Article.
Section 8.08 Directors Becoming Available
Any person who has ceased to be a director pursuant to the provisions
of Section 8.02 and who thereafter becomes available to serve as a director
shall automatically become a member of the emergency committee.
Section 8.09 Election of Board
The emergency committee shall, as soon after its appointment as is
practicable, take all requisite action to secure the election of a Board, and
upon such election all the powers and authorities of the emergency committee
shall cease.
Section 8.10 Termination of Emergency Committee
In the event, after the appointment of an emergency committee, a
sufficient number of persons who ceased to be directors pursuant to Section
8.02 become available to serve as directors, so that if they had not ceased to
be directors as aforesaid, there would be enough directors to constitute the
minimum number of directors required by law, then all such persons shall
automatically be deemed to be reappointed as directors and the powers and
authorities of the emergency committee shall be at an end.
The undersigned, being the Secretary of OVERSEAS FILMGROUP, INC.
hereby certifies that the foregoing Bylaws were adopted as the Amended and
Restated Bylaws of said corporation by its Board of Directors on [ ]
Dated: [ ] _______________________________
[ ]
-21-
