-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IUPt2FPUimARZwg9Gb923/KBFvnb9yuZdnsi6bYGZluG25RpPc8ak8AbuubfOI+b KfLNyqv9UyrrjrVF0l1Oqw== 0000912057-02-017519.txt : 20020430 0000912057-02-017519.hdr.sgml : 20020430 ACCESSION NUMBER: 0000912057-02-017519 CONFORMED SUBMISSION TYPE: 10-K/A PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20011231 FILED AS OF DATE: 20020430 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CORNELL COMPANIES INC CENTRAL INDEX KEY: 0001016152 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-FACILITIES SUPPORT MANAGEMENT SERVICES [8744] IRS NUMBER: 760433642 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-14472 FILM NUMBER: 02628022 BUSINESS ADDRESS: STREET 1: 1700 WEST LOOP SOUTH STREET 2: STE 1500 CITY: HOUSTON STATE: TX ZIP: 77027 BUSINESS PHONE: 7136230790 MAIL ADDRESS: STREET 1: 1700 WEST LOOP SOUTH STREET 2: STE 1500 CITY: HOUSTON STATE: TX ZIP: 77027 FORMER COMPANY: FORMER CONFORMED NAME: CORNELL CORRECTIONS INC DATE OF NAME CHANGE: 19960604 10-K/A 1 a2078315z10-ka.txt 10-K/A UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-K/A AMENDMENT NO. 1 ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 2001 Commission File Number 1-14472 CORNELL COMPANIES, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) Delaware 76-0433642 (State or other jurisdiction of (IRS Employer Identification No.) Incorporation or organization) 1700 West Loop South, Suite 1500, Houston, Texas 77027 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (713) 623 - 0790 Securities registered pursuant to Section 12(b) of the Act: TITLE OF EACH CLASS NAME OF STOCK EXCHANGE --------------------- ------------------------ Common Stock, $.001 par value per share New York Stock Exchange Preferred Stock Purchase Rights New York Stock Exchange Securities registered pursuant to Section 12(g) of the Act: NONE Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months and (2) has been subject to such filing requirements for the past 90 days. YES X NO ___ Indicate by check mark if disclosure of delinquent files pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the Registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [ ] At March 28, 2002, Registrant had outstanding 13,056,903 shares of its common stock. The aggregate market value of the Registrant's voting stock held by non-affiliates at this date was approximately $134,805,000 based on the closing price of $10.80 per share as reported on the New York Stock Exchange. For purposes of the foregoing calculation, all directors and officers of the Registrant have been deemed to be affiliates, but the Registrant disclaims that any of such directors or officers is an affiliate. Documents Incorporated by Reference: None EXPLANATORY NOTE On April 16, 2002, Cornell Companies, Inc. (the "Company") filed with the Securities and Exchange Commission (the "SEC") its Annual Report on Form 10-K for the year ended December 31, 2001 (the "Initial Form 10-K"). In accordance with the SEC rules, the Company incorporated by reference Part III of the Initial Form 10-K from the Proxy Statement to be filed by the Company in connection with its 2002 Annual Stockholders' Meeting, which the Company anticipated filing on or before April 30, 2002. Since filling the Initial Form 10-K, the Company has determined that it will not file its Proxy Statement prior to the April 30 deadline and, in accordance with SEC rules, must file an amendment to its Initial Form 10-K to include the disclosures required by Part III of Form 10-K. This Amendment No. 1 on Form 10-K/A amends Part III of the Initial Form 10-K in order to include those disclosures required by Part III of Form 10-K. It also amends Part IV to include an exhibit that was not available when the Company filed its Initial Form 10-K. PART III ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT DIRECTORS The following table lists the names, ages and positions of the Company's directors as of April 16, 2002. There are no family relationships between any of the directors or officers.
NAME AGE POSITION ---- ---- -------- Anthony R. Chase.............................. 47 Director James H. S. Cooper............................ 47 Director David M. Cornell.............................. 66 Director Peter A. Leidel............................... 45 Director Arlene R. Lissner............................. 71 Director; Director of Special Projects Steven W. Logan............................... 40 Director; President Harry J. Phillips, Jr......................... 52 Director; Chairman of the Board; Executive Chairman Tucker Taylor................................. 63 Director Marcus A. Watts............................... 44 Director
ANTHONY R. CHASE has been a director of the Company since October 1999. Mr. Chase has served as Chairman and Chief Executive Officer of ChaseCom Limited Partnership since December 1998 and as President and Chief Executive Officer of Faith Broadcasting, L.P. since November 1993. Mr. Chase is also Chairman of the Board of the Telecom Opportunity Institute, a national, non-profit organization founded by ChaseCom Limited Partnership to increase career, education and job training opportunities in the telecommunications industry for people in historically underserved communities. Mr. Chase is a Professor of Law at the University of Houston Law Center. Mr. Chase is a director of Leap Wireless International, Inc., a nationwide provider of wireless phone service, a director of Northern Trust Bank of Texas, and a Member of the Council on Foreign Relations. JAMES H. S. COOPER has been a director of the Company since October 1999. Mr. Cooper is the founder and Chairman of Brentwood Capital Advisors LLC of Brentwood, Tennessee, where he has been since May 1999. Mr. Cooper was a Managing Director of SunTrust Equitable Securities Corporation of Nashville, Tennessee (and its predecessor, Equitable Securities Corp.) from April 1995 to April 1999, and served as Congressman, 4th District of Tennessee in the United States House of Representatives from 1983 to 1995. Mr. Cooper has also been an Adjunct Professor at the Owen School of Management at Vanderbilt University since 1995. Mr. Cooper serves as a director of several private companies. DAVID M. CORNELL has been a director since our founding and was Chairman of the Board from our founding until September 2000. Mr. Cornell also served as President and Chief Executive Officer of the Company from our founding until August 1999. 1 PETER A. LEIDEL has been a director since May 1991 and has been Chairman of the Board from September 2000 to July 2001. Mr. Leidel is founder and Managing Director of Yorktown Partners LLC, and a partner of Ticonderoga Capital, both of which manage private investment funds. In September 1997, Mr. Leidel resigned as Senior Vice President of Dillon Read & Co, Inc. (a predecessor of UBS PaineWebber Inc.) where he worked since 1983 managing private investment funds. Mr. Leidel is a director of Willbros Group, Inc., an oil and gas industry contractor, Carbon Energy Corporation, an oil and gas exploration company, and several private companies. ARLENE R. LISSNER has been a director since September 1997 when we acquired Abraxas, and is Director of Special Projects. Ms. Lissner founded Abraxas in 1973, where she served as President and Chief Executive Officer until 1977, at which time she left that position to become Chairperson of the Board of Directors of Abraxas. Ms. Lissner resumed her role as President and Chief Executive Officer of Abraxas from April 1996 through September 1997. STEVEN W. LOGAN has been a director and the President since August 1999 . Mr. Logan served as Chief Executive Officer from August 1999 to April 2002 and as Chairman of the Board from July 2001 to February 2002. Prior to August 1999, Mr. Logan served as Executive Vice President from April 1998 and was Chief Operating Officer from April 1998 through December 1998. Previously, Mr. Logan served as Senior Vice President from November 1997 to April 1998, and Chief Financial Officer, Treasurer and Secretary from 1993 to April 1998. From 1984 to 1993, Mr. Logan served in various positions with Arthur Andersen LLP, Houston. HARRY J. PHILLIPS, JR. has been a director since January 2001. Mr. Phillips was named Chairman of the Board of Directors of the Company on February 6, 2002 and Executive Chairman of the Company on April 16, 2002. Mr. Phillips is President of Timberlake Interests, Inc. and Phillips Investments, Inc. Mr. Phillips previously served as Chairman and Chief Executive Officer of American Ecology Corporation from 1992 to 1995. Mr. Phillips is a director of Conservatek Industries, Inc. and Aeriform, Inc. TUCKER TAYLOR has been a director since October 1996. Mr. Taylor has been President of CBCA, Inc., a company that administers health benefits for self-insured employers, since July 2000. From 1992 to 1999, Mr. Taylor was Executive Vice President of Medical Care International and, after an acquisition, a Senior Vice President at Columbia/HCA. Mr. Taylor is also a director of SuperShuttle, a privately held ground transportation company, and Alta Healthcare Systems, a privately held hospital company. MARCUS A. WATTS has been a director since January 2001. Mr. Watts is a partner of the law firm of Locke Liddell & Sapp LLP where he has practiced corporate and securities law since 1984. Mr. Watts is a director of Aeriform, Inc. and serves on the board of various civic and charitable organizations. DIRECTOR COMPENSATION Ms. Lissner does not receive compensation for serving as a director. In 2001, Messrs. Chase, Cooper, Cornell, Leidel, Phillips, Taylor and Watts received an annual fee of $15,000, a fee of $1,500 for attendance at each Board of Directors meeting and a fee of $1,000 for attendance at each committee meeting (unless held on the same day as a Board of Directors meeting). In February 2000, the Board approved the payment of fees in cash or common stock of the Company, at the election of the director, subject to the provisions of the Cornell Companies, Inc. 2000 Directors Stock Plan, which was adopted by stockholders at the Company's 2001 Annual Meeting. In January 2001, the Company granted to Mr. Phillips and Mr. Watts nonqualified options to purchase 15,000 shares of Common Stock under the 1996 Plan in connection with their appointment to the Board. The options to Messrs. Phillips and Watts vested 25% on the date of the grant and the remainder vest ratably over three years with a term of 10 years and have a per share exercise price equal to the market value of a share of Common Stock on the date of the grant. Additionally, Messrs. Chase, Cooper, Cornell, Leidel and Taylor were each granted nonqualified options to purchase 2,000 shares of Common Stock under the 1996 Plan in January 2001. These options vested 100% on the date of the grant with a term of 10 years and have a per share exercise price equal to the market value of a share of Common Stock on December 31, 2000. All directors are reimbursed for out-of-pocket expenses incurred in attending meetings of the Board of Directors or committees thereof and for other expenses incurred in their capacity as directors. 2 EXECUTIVE OFFICERS AND OTHER KEY EMPLOYEES The following table sets forth the names, ages and positions of the persons who are not directors and who are executive officers and other key employees of the Company as of April 16, 2002:
NAME AGE POSITION ---- --- -------- Leslie A. Balonick.................... 50 Vice President, Mid-West Region Luis A. Collazo....................... 35 Corporate Controller and Chief Accounting Officer John C. Godlesky...................... 55 Vice President, Eastern Region John L. Hendrix....................... 53 Senior Vice President and Chief Financial Officer Gary L. Henman........................ 62 Vice President, Adult Secure Institutions Thomas R. Jenkins..................... 54 Senior Vice President and Chief Operating Officer Kevin B. Kelly........................ 39 Treasurer and Corporate Secretary Patrick N. Perrin..................... 41 Vice President and Chief Administrative Officer Laura J. Shol......................... 47 Vice President, Western Region Kevin T. Smyley....................... 51 Managing Director, Business Development Marvin H. Wiebe, Jr................... 54 Senior Vice President
LESLIE A. BALONICK has been Vice President, Mid-West Region since we acquired Interventions in November 1999. She previously served as Acting Clinical Director for BHS Consulting Corp. from September 1998 to November 1999 and as Director of Planning and Business Development from 1996 to August 1998. From 1991 to 1996, she served as Regional Manager for Interventions. Ms. Balonick serves as a member of the Women's Committee of the Illinois Department of Human Services, Office of Alcoholism and Substance Abuse Advisory Board and is a Clinically Certified Substance Abuse Counselor. LUIS A. COLLAZO has been Corporate Controller and Chief Accounting Officer since November 1999. Prior to November 1999, Mr. Collazo served as Corporate Controller and Vice President of Accounting and Business Processes for IKON Document Services, a division of IKON Office Solutions from September 1993 to November 1999. Mr. Collazo is a Certified Public Accountant. JOHN C. GODLESKY has been Vice President, Eastern Region, since November 1999 and Vice President, Juvenile since January 1999. He previously served as Director, Division of Residential Programs of Abraxas from June 1993 to December 1998, and was responsible for the overall development, direction and management of Abraxas' juvenile residential programs. JOHN L. HENDRIX has been Senior Vice President and Chief Financial Officer since September 1999. Mr. Hendrix previously served as Senior Vice President and Chief Financial Officer of GC Services from 1998 to August 1999. From 1996 to 1998, Mr. Hendrix served as Senior Vice President and Chief Financial Officer of APS Holding Corporation. Mr. Hendrix served as Senior Vice President and Chief Financial Officer at Kay-Bee Toy Stores in 1996 and held various senior financial positions at Kay-Bee Toy Stores since 1991. Mr. Hendrix is a Certified Public Accountant. GARY L. HENMAN has been Vice President, Adult Secure Institutions since October 1998 and National Director of Quality Assurance since June 1998. He was previously an associate professor at Louisiana State University from 1997 to September 1998. From 1973 to 1997, Mr. Henman was with the Federal Bureau of Prisons ("FBOP"), progressing to Deputy Regional Director and Warden of five facilities, including the United States Penitentiaries at Leavenworth, Kansas and Marion, Illinois. Mr. Henman was Chairman of both the FBOP High Security Facility Task Force and the FBOP Task Force on Vocational Training. THOMAS R. JENKINS has been Senior Vice President since May 1999 and Chief Operating Officer of the Company since January 1999. Mr. Jenkins previously served as Vice President, Juvenile since September 1997. From November 1995 through September 1997 he served as Vice President---Operations of Abraxas. From 1973 through November 1995, Mr. Jenkins served with the Department of Public Welfare, Commonwealth of Pennsylvania in various capacities ranging from Director of various juvenile facilities to Director of the Pennsylvania Child Welfare Services. 3 KEVIN B. KELLY has served as Treasurer and Corporate Secretary since November 1999 and was Corporate Controller and Chief Accounting Officer from January 1996 to November 1999. Prior to January 1996, Mr. Kelly was Assistant Controller and Corporate Financial Reporting Manager for American Ecology Corporation from 1993 to 1995. Mr. Kelly is a Certified Public Accountant. PATRICK N. PERRIN has been Vice President since June 2001 and Chief Administrative Officer since November 1998. Prior to November 1998, Mr. Perrin served as Corporate Director of Risk Management, Employee Benefits and Retirement Plans for Tracor, Inc. from November 1991 to October 1998. LAURA J. SHOL has been Vice President, Western Region since November 1999 and as Vice President, Pre-Release since November 1997, and was Managing Director of Pre-Release Centers since May 1997. She previously served as Director of Community Corrections of the Company from June 1996 through May 1997, and was Senior Regional Administrator of Eclectic from 1986 to June 1996. KEVIN T. SMYLEY has been Vice President, Business Development since January 2002 and was Managing Director, Business Development from January 2001 through December 2001. Mr. Smyley was Director of Public Policy since September 1999 and a Vice President of Cornell Interventions, Inc., one of our subsidiaries, since July 1999. From 1997 to 1999, Mr. Smyley served as Co-Executive Director and Project Manager for the Kid's Stuff Foundation. From 1991 to 1997, Mr. Smyley worked for Lockheed Martin IMS serving as Vice President of Criminal Justice Services from 1995 to 1997. Mr. Smyley is a member of the National Organization of Black Law Enforcement Executives, the ACA and the American Probation and Parole Association. MARVIN H. WIEBE, JR. has been Senior Vice President since November 1997 and Vice President since we acquired Eclectic Communications, Inc. in 1994. He was previously Vice President---Administration and Finance, Vice President---Secure Detention and Chief Financial Officer of Eclectic, where he was employed for 11 years. Mr. Wiebe has served as President of the International Community Corrections Association and as an auditor for the ACA Commission on Accreditation for Corrections and is a member of the International Community Corrections Association, the California Probation Parole & Correctional Association and the ACA. SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE Section 16(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), requires the Company's directors and executive officers to file with the Securities and Exchange Commission and the New York Stock Exchange initial reports of ownership and reports of changes in ownership of Common Stock. Based solely on a review of the copies of such reports furnished to the Company and written representations that no other reports were required, the Company believes that all its directors and executive officers during 2001 complied on a timely basis with all applicable filing requirements under Section 16(a) of the Exchange Act, except that Tucker Taylor, director of the Company, did not timely file a Form 4. ITEM 11. EXECUTIVE COMPENSATION The following table sets forth compensation information for the chief executive officer and the four other most highly compensated executive officers (the "named executive officers") of the Company during the Company's fiscal years 2001, 2000 and 1999. 4
SUMMARY COMPENSATION TABLE LONG-TERM ANNUAL COMPENSATION COMPENSATION ---------------------------- --------------- SECURITIES ALL FISCAL UNDERLYING OTHER NAME AND PRINCIPAL POSITION YEAR SALARY BONUS OPTIONS COMPENSATION(1) - --------------------------- ------ -------- --------- -------------- ---------------- ($) ($) (#) ($) Steven W. Logan (2)................. 2001 425,000 80,000 75,000 6,128 President and Chief 2000 300,000 --- 36,667 5,441 Executive Officer 1999 252,404 --- 100,000 5,380 John L. Hendrix (3)................. 2001 250,000 65,000 --- 4,802 Senior Vice President and Chief 2000 225,000 --- 70,000 1,744 Financial Officer 1999 64,904 --- 100,000(4) 1,869 Thomas R. Jenkins................... 2001 250,000 80,000 --- 5,952 Senior Vice President and Chief 2000 180,000 --- 33,333 5,062 Operating Officer 1999 158,557 --- --- 17,805 Patrick N. Perrin................... 2001 150,000 30,000 --- 1,920 Vice President and Chief 2000 135,000 --- 7,500 2,794 Administrative Officer 1999 120,000 --- --- --- Kevin T. Smyley (5) ................ 2001 140,000 25,000 --- 1,056 Vice President, Business 2000 140,000 --- --- 239 Development 1999 66,912 --- 20,000 ---
- --------------- (1) Amounts in 2001 for Messrs. Logan, Hendrix, Jenkins, Perrin and Smyley include (i) the Company's 401(k) matching contributions of $5,678, $4,250, $5,400, $1,800 and $808, respectively, and (ii) group term life insurance premiums of $450, $552, $552, $120 and $248, respectively. (2) Mr. Logan served as Chief Executive Officer from August 1999 to April 2002. (3) Mr. Hendrix has served as Senior Vice President and Chief Financial Officer since September 1999. (4) These options are no longer outstanding. (5) Mr. Smyley has been employed by the Company since July 1999. The following table presents information regarding options granted to each of the named executive officers in 2001.
OPTION GRANTS IN 2001 PERCENTAGE OF POTENTIAL REALIZABLE VALUE AT NUMBER OF TOTAL ASSUMED RATES OF STOCK PRICE SECURITIES OPTIONS APPRECIATION UNDERLYING GRANTED TO EXERCISE FOR OPTION TERM(1) OPTIONS EMPLOYEES PRICE EXPIRATION ----------------------------- NAME GRANTED IN 2001 PER SHARE DATE 5% 10% ------ ------------ --------------- ------------ ------------ ---------- ---------- Steven W. Logan........... 75,000 51.7% $16.25 12/4/11 $766,465 $1,942,374 John L. Hendrix........... --- --- --- --- --- --- Thomas R. Jenkins......... --- --- --- --- --- --- Patrick N. Perrin......... --- --- --- --- --- --- Kevin T. Smyley........... --- --- --- --- --- ---
5 - ---------------- (1) The values shown are based on the indicated assumed annual rates of appreciation compounded annually. Actual gains realized, if any, on stock option exercises and Common Stock holdings are dependent on the future performance of the Common Stock and overall stock market conditions. There can be no assurance that the values shown in this table will be achieved. The following table presents information regarding options exercised in 2001 and the value of options outstanding at December 31, 2001 for each of the named executive officers. AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION VALUES
NUMBER OF SECURITIES VALUE OF UNEXERCISED NUMBER OF UNDERLYING UNEXERCISED IN-THE-MONEY OPTIONS AT SHARES ACQUIRED VALUE OPTIONS AT FISCAL YEAR END FISCAL YEAR END(1) NAME ON EXERCISE REALIZED EXERCISABLE UNEXERCISABLE(2) EXERCISABLE UNEXERCISABLE(2) - ---- --------------- -------- ------------- ----------------- -------------- ---------------- Steven W. Logan........ --- --- 197,374 151,667 $2,277,276 $823,838 John L. Hendrix........ --- --- 24,000 46,000 $307,600 $597,900 Thomas R. Jenkins...... --- --- 22,999 25,335 $180,987 $294,477 Patrick N. Perrin...... --- --- 10,500 12,000 $37,035 $92,940 Kevin T. Smyley ....... --- --- 8,000 12,000 $20,200 $30,300
- --------------- (1) The excess, if any, of the market value of Common Stock at December 31, 2001 ($17.65) over the option exercise price(s). (2) All of these options become immediately exercisable upon a change in control of the Company. EMPLOYMENT AGREEMENTS Effective as of September 1, 1999, the Company entered into a consultant agreement with David M. Cornell. As compensation for his services, the Company agreed to pay Mr. Cornell an annual salary of at least $255,000 for each of the first four years of the seven-year initial term of the consultant agreement and an annual salary of at least $180,000 for each of the last three years of the seven-year initial term. If the Company and Mr. Cornell agree to renew the consultant agreement for an additional three-year renewal term, the Company has agreed to pay Mr. Cornell an annual salary of at least $300,000 for each of the three years of the renewal term. As additional compensation for his services, the Company has agreed to pay Mr. Cornell an annual bonus, subject to certain limitations, equal to $75,000 during the first four years of the initial term and an annual bonus of $60,000 during the last three years of the initial term and during any renewal term. The Company has also agreed to grant Mr. Cornell options to purchase an aggregate of 120,000 shares of the Common Stock in four equal annual installments beginning on September 1, 2000. The options have an exercise price equal to the fair market value of the Common Stock on the date of grant and vest at the time such options are granted. In September 1997, Cornell Abraxas Group, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company, and the Company entered into employment agreements with Arlene R. Lissner and Thomas R. Jenkins. As compensation for their services, Cornell Abraxas Group, Inc. agreed to pay Ms. Lissner an annual salary of at least $125,000 for a period of three years and Mr. Jenkins an annual salary of at least $105,000 for a period of three years. As additional compensation for their services under the employment agreements, in September 1999 Ms. Lissner and Mr. Jenkins were each granted options to purchase 10,000 shares of the Common Stock. Ms. Lissner's options have an exercise price equal to half of the fair market value of the Common Stock on the date of grant. Her options vested 20% on September 9, 1998 and 20% on September 9, 1999, 6 with the remainder vesting on September 9, 2000. Mr. Jenkins' options have an exercise price equal to the fair market value of the Common Stock on the date of grant. His options vested 20% on September 9, 1998 and 20% on September 9, 1999, with the remainder vesting 20% on each September 9 thereafter until fully vested. The Company is a party to the employment agreements solely to guarantee the performance of Cornell Abraxas Group, Inc.'s obligations thereunder. SEVERANCE AGREEMENTS In December 1999, the Company entered into severance agreements with John L. Hendrix, Thomas R. Jenkins, Arlene R. Lissner and Steven W. Logan. If a listed officer's employment with the Company is terminated for any reason within a year after a change in control (as defined in the severance agreements), the Company has agreed that all stock options, restricted stock awards and similar awards granted to the terminated officer by the Company prior to the termination date will vest immediately on the termination date. In addition, the Company has agreed to make the following severance payments upon such a termination: (i) with respect to Mr. Logan, a payment equal to four times the sum of (a) his highest annual base salary as of the termination date and the change in control date and (b) the average annual bonus paid to him by the Company or its affiliates in respect of the two most recent full fiscal years (or one year if not employed for two years) ending on or prior to the termination date; (ii) with respect to each of Mr. Hendrix and Mr. Jenkins, a payment equal to two times the sum of (a) his highest annual base salary as of the termination date and the change in control date and (b) the average bonus paid to him by the Company or its affiliates in respect of the two most recent full fiscal years (or one year if not employed for two years) ending on or prior to the termination date; and (iii) with respect to Ms. Lissner, a payment equal to the sum of (a) her highest annual base salary as of the termination date and the change in control date and (b) the average bonus paid to her by the Company or its affiliates in respect of the two most recent full fiscal years (or one year if not employed for two years) ending on or prior to the termination date. The Company has agreed to pay the severance amounts in a lump sum in cash (i) on the termination date if the Company terminates the officer and (ii) within 30 days after the termination date if the officer's employment is terminated by the officer or upon the officer's death or retirement. COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION The members of the Compensation Committee of the Board are Messrs. Chase, Leidel and Taylor. None of these directors has at any time been an officer or employee of the Company and none of these directors serves as a member of the board of directors or compensation committee of any entity that has one or more executive officers serving as a member of the Company's Board or Compensation Committee. ITEM 12. SECURITIES OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS The following table sets forth information with respect to the shares of Common Stock (the only outstanding class of voting securities of the Company) owned of record and beneficially as of April 23, 2002, unless otherwise specified, by (i) all persons known to possess voting or dispositive power over more than 5% of the Common Stock, (ii) each director and named executive officer, and (iii) all directors and executive officers of the Company as a group: 7
AMOUNT AND NATURE OF PERCENTAGE BENEFICIAL OWNERSHIP (1) OF CLASS ------------------------ ------------ FMR Corp.(2)................................................................ 1,793,220 13.7% 82 Devonshire Street Boston, Massachusetts 02109 Royce & Associates, Inc. (3)................................................ 1,092,200 8.4% 1414 Avenue of the Americas New York, New York 10019 Wellington Management Company, LLP (4)...................................... 889,200 6.8% 75 State Street Boston, Massachusetts 02109 Caxton Associates, L.L.C.(5)................................................ 798,000 6.1% Princeton Plaza, Building 2 731 Alexander Road Princeton, New Jersey 08540 Dimensional Fund Advisors Inc.(2)........................................... 725,800 5.6% 1299 Ocean Avenue, 11th Floor Santa Monica, California 90401 Anthony R. Chase............................................................ 19,157 * James H. S. Cooper.......................................................... 30,229 * David M. Cornell (6)........................................................ 382,393 2.9% John L. Hendrix............................................................. 48,862 * Thomas R. Jenkins........................................................... 39,521 * Peter A. Leidel............................................................. 80,886 * Arlene R. Lissner........................................................... 17,375 * Steven W. Logan............................................................. 336,457 2.5% Patrick N. Perrin........................................................... 65,988 * Harry J. Phillips, Jr....................................................... 57,500 * Kevin T. Smyley............................................................. 16,588 * Tucker Taylor............................................................... 37,812 * Marcus A. Watts............................................................. 11,617 * All directors and executive officers as a group (13 persons)................ 1,144,385 8.4%
- ----------------- * Less than 1.0%. (1) Shares of Common Stock listed include shares subject to stock options exercisable within 60 days (15,250 for Mr. Chase, 15,250 for Mr. Cooper, 141,334 for Mr. Cornell, 24,000 for Mr. Hendrix, 23,999 for Mr. Jenkins, 12,833 for Mr. Leidel, 14,000 for Ms. Lissner, 204,874 for Mr. Logan, 10,500 for Mr. Perrin, 7,500 for Mr. Phillips, 8,000 for Mr. Smyley, 20,333 for Mr. Taylor, 7,500 for Mr. Watts, and 505,373 for all the above as a group). (2) Based on a filing made with the SEC reflecting ownership of Common Stock as of December 31, 2001. The filing indicates sole voting power with respect to 39,500 shares of Common Stock and sole dispositive power with respect to 1,793,220 shares of Common Stock. 8 (3) Based on a filing made with the SEC reflecting ownership of Common Stock as of December 31, 2001. The filing indicates sole voting and dispositive power with respect to the referenced shares of Common Stock. (4) Based on a filing made with the SEC reflecting ownership of Common Stock as of December 31, 2001. The filing indicates shared voting power for 550,100 shares of Common Stock and shared dispositive power for 889,200 shares of Common Stock. (5) Based on a filing made with the SEC reflecting ownership of Common Stock as of January 31, 2002. The filing indicates shared voting power and shared dispositive power for 798,000 shares of Common Stock. (6) Mr. Cornell has sole voting power for 382,393 shares of Common Stock and sole dispositive power for 362,428 shares of Common Stock, of which 141,334 shares are subject to stock options exercisable within 60 days. The total includes 19,965 shares over which Jane B. Cornell, the former wife of David M. Cornell, has sole dispositive power and, pursuant to a voting agreement, over which Mr. Cornell has sole voting power. ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS At December 31, 2001, the Company had notes and accrued interest receivable from Mr. Cornell, a Director, and Mr. Logan, Company President, in the amounts of $746,386 and $364,165, respectively. These amounts were the largest amount of indebtedness outstanding at any time during 2001. Interest on the notes, which were incurred upon the exercise of stock options and in connection with other personal matters, is charged annually at a rate of 6.63% and the notes mature in June 2004. In September 1997, in connection with the acquisition of Abraxas, the Company entered into a covenant not to compete agreement with Ms. Lissner pursuant to which she agreed for a period of 20 years not to: (i) engage in any business in competition with any business operation of the Company or its affiliates; (ii) request that any customer or supplier of the Company or any of its affiliates curtail or cancel its business with the Company or any such affiliate; or (iii) induce or attempt to influence any employee of the Company or any of its affiliates to terminate his or her employment with the Company or any such affiliate, or hire or retain the services of any such employee. In consideration of Ms. Lissner's agreements, the Company agreed to pay Ms. Lissner 10 annual installments of $60,000 each beginning on January 2, 1998. Such payments may be accelerated upon the mutual agreement of Ms. Lissner and the Company. Effective as of September 1, 1999, as part of the consultant agreement that the Company entered into with Mr. Cornell, Mr. Cornell agreed for a period of 10 years not to: (i) within the United States, transact or take part in any competitive business (as defined in the consultant agreement) or render any service to any person or entity engaged in a competitive business; (ii) share in the earnings of, beneficially own any security issued by, or otherwise own any interest in any person or entity engaged in a competitive business within the United States; or (iii) hire or solicit the services of any person or entity employed or engaged to perform services for the Company or any of its affiliates, or cause any such person or entity to leave the employment or services of the Company or any of its affiliates. In consideration of Mr. Cornell's agreements, the Company agreed to pay Mr. Cornell $10,000 per month during the seven-year initial term of the consultant agreement. Mr. Watts, a director of the Company, is a partner in the law firm of Locke Liddell & Sapp LLP ("LLS"). The Company paid legal fees to LLS and LLS performed legal services for the Company in 2001. PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K EXHIBIT NUMBER DESCRIPTION - -------------- ----------- 3.2 Amended and Restated Bylaws of the Company dated April 16, 2002 9 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, Registrant has duly caused this annual report to be signed on its behalf by the undersigned, thereunto duly authorized. CORNELL COMPANIES, INC. By: /s/ HARRY J. PHILLIPS, JR. ------------------------------- Harry J. Phillips, Jr. Executive Chairman, Chairman of the Board and Director Pursuant to the requirements of the Securities Act of 1934, this report on Form 10-K/A has been signed below by the following persons on behalf of Cornell Companies, Inc. and in the capacities and on the dates indicated.
SIGNATURE TITLE DATE /s/ HARRY J. PHILLIPS, JR. Executive Chairman, Chairman of the Board and April 30, 2002 - ---------------------------------------- Director (Principal Executive Officer) Harry J. Phillips, Jr. /s/ JOHN L. HENDRIX Senior Vice President and Chief Financial April 30, 2002 - ---------------------------------------- Officer (Principal Financial Officer and John L. Hendrix Principal Accounting Officer) /s/ ANTHONY R. CHASE Director April 30, 2002 - ---------------------------------------- Anthony R. Chase /s/ JAMES H.S. COOPER Director April 30, 2002 - ---------------------------------------- James H.S. Cooper /s/ DAVID M. CORNELL Director April 30, 2002 - ---------------------------------------- David M. Cornell /s/ PETER A. LEIDEL Director April 30, 2002 - ---------------------------------------- Peter A. Leidel /s/ ARLENE R. LISSNER Director April 30, 2002 - ---------------------------------------- Arlene R. Lissner /s/ STEVEN W. LOGAN Director April 30, 2002 - ---------------------------------------- Steven W. Logan /s/ TUCKER TAYLOR Director April 30, 2002 - ---------------------------------------- Tucker Taylor /s/ MARCUS A. WATTS Director April 30, 2002 - ---------------------------------------- Marcus A. Watts
10 EX-3.2 3 a2078315zex-3_2.txt EXHIBIT 3.2 Exhibit 3.2 AMENDED AND RESTATED BYLAWS OF CORNELL COMPANIES, INC. ADOPTED APRIL 16, 2002 AMENDED AND RESTATED BYLAWS OF CORNELL COMPANIES, INC. Table of Contents ARTICLE I OFFICES 1 1.1 REGISTERED OFFICE................................................1 1.2 OTHER OFFICES....................................................1 ARTICLE II MEETINGS OF STOCKHOLDERS..........................................1 2.1 PLACE OF MEETINGS................................................1 2.2 ANNUAL MEETINGS..................................................1 2.3 SPECIAL MEETINGS.................................................1 2.4 NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS...................2 2.5 REGISTERED HOLDERS OF SHARES; CLOSING OF SHARE TRANSFER RECORDS; AND RECORD DATE.........................................3 2.6 QUORUM...........................................................4 2.7 VOTING BY STOCKHOLDERS...........................................4 2.8 PROXIES..........................................................5 2.9 NO STOCKHOLDER ACTION WITHOUT MEETING............................5 ARTICLE III DIRECTORS........................................................5 3.1 DUTIES AND POWERS................................................5 3.2 NUMBER AND ELECTION OF DIRECTORS.................................6 3.3 VACANCIES........................................................6 3.4 RESIGNATIONS.....................................................6 3.5 CHAIRMAN.........................................................6 3.6 MEETINGS.........................................................6 3.7 QUORUM...........................................................6 3.8 ACTIONS WITHOUT A MEETING........................................7 3.9 TELEPHONIC MEETINGS..............................................7 3.10 COMMITTEES.......................................................7 3.11 REIMBURSEMENT OF EXPENSES........................................7 3.12 PROTECTION FOR RELIANCE..........................................7 3.13 CONSIDERATION OF SOCIAL, ECONOMIC AND OTHER FACTORS IN EVALUATING A BID.................................................8 ARTICLE IV OFFICERS..........................................................8 4.1 GENERAL..........................................................8 4.2 ELECTION.........................................................8 4.3 DUTIES...........................................................8 4.4 EXECUTIVE CHAIRMAN...............................................8 4.5 CHIEF EXECUTIVE OFFICER..........................................9 4.6 PRESIDENT........................................................9 4.7 CHIEF FINANCIAL OFFICER..........................................9 4.8 CHIEF OPERATING OFFICER..........................................9 4.9 VICE PRESIDENTS..................................................9 i 4.10 SECRETARY AND ASSISTANT SECRETARIES.............................10 4.11 TREASURER AND ASSISTANT TREASURERS..............................10 4.12 REMOVAL.........................................................10 4.13 VOTING SECURITIES OWNED BY THE CORPORATION......................10 ARTICLE V STOCK 5.1 FORM OF CERTIFICATES............................................11 5.2 SIGNATURES......................................................11 5.3 LOST CERTIFICATES...............................................11 5.4 TRANSFERS.......................................................11 5.5 BENEFICIAL OWNERSHIP............................................11 5.6 DIVIDENDS.......................................................12 ARTICLE VI INDEMNIFICATION..................................................12 6.1 GENERAL.........................................................12 6.2 EXPENSES........................................................12 6.3 ADVANCES........................................................13 6.4 REQUEST FOR INDEMNIFICATION.....................................13 6.5 NONEXCLUSIVITY OF RIGHTS........................................13 6.6 INSURANCE AND SUBROGATION.......................................13 6.7 SEVERABILITY....................................................13 6.8 CERTAIN PERSONS NOT ENTITLED TO INDEMNIFICATION.................14 6.9 DEFINITIONS.....................................................14 ARTICLE VII NOTICES.........................................................14 7.1 NOTICES.........................................................14 7.2 WAIVER OF NOTICE................................................15 ARTICLE VIII MISCELLANEOUS..................................................15 8.1 FISCAL YEAR.....................................................15 8.2 AMENDMENTS......................................................15 ii AMENDED AND RESTATED BYLAWS OF CORNELL COMPANIES, INC. ARTICLE I OFFICES 1.1 REGISTERED OFFICE. The registered office of Cornell Companies, Inc., a Delaware corporation (the "Corporation"), is The Corporation Trust Company, 1209 Orange Street, in the City of Wilmington, County of New Castle, State of Delaware, 19801. 1.2 OTHER OFFICES. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors of the Corporation (the "Board of Directors") may from time to time determine. ARTICLE II MEETINGS OF STOCKHOLDERS 2.1 PLACE OF MEETINGS. Annual or special meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as may be designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof. If not so designated or stated, such meeting shall be held at the registered office of the Corporation. 2.2 ANNUAL MEETINGS. The annual meeting of stockholders shall be held on such date and at such time as may be designated from time to time by the Board of Directors and stated in the notice of such meeting. At the annual meeting, the stockholders shall elect by a plurality vote a Board of Directors and transact such other business as may properly be brought before the meeting. Written notice of the annual meeting of stockholders of the Corporation stating the place, date and hour of the meeting shall be sent to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. Failure to hold the annual meeting shall not work a forfeiture or dissolution of the Corporation or affect otherwise valid corporate acts. 2.3 SPECIAL MEETINGS. Unless otherwise prescribed by the Delaware General Corporation Law ("DGCL") or by the Certificate of Incorporation of the Corporation (as amended or restated from time to time, the "Certificate of Incorporation"), special meetings of stockholders of the Corporation for any purpose or purposes may be called at any time by the Chairman of the Board of Directors or by any two or more directors of the Corporation. Written notice of the special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called shall be given not less 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting. 2.4 NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS. (a) NOMINATION OF DIRECTORS. Only persons who are nominated in accordance with the following procedures shall be eligible to serve as directors. Nominations of persons for election to the Board of Directors of the Corporation at a meeting of stockholders may be made (i) by or at the direction of the Board of Directors, or (ii) by any stockholder of the Corporation entitled to vote in the election of directors at the meeting who complies with the notice procedures set forth in this Section 2.4(a). Such nominations, other than those made by or at the direction of the Board of Directors, shall be made pursuant to timely notice in writing to the Secretary of the Corporation. To be timely, a stockholder's notice must be delivered to, or mailed and received by, the Secretary of the Corporation at the principal executive offices of the Corporation not less than ninety (90) days prior to the first anniversary of the date of the previous year's annual meeting of stockholders; provided, however, that if no annual meeting of stockholders was held in the previous year or if the date of the annual meeting is advanced by more than thirty (30) days prior to, or delayed by more than sixty (60) days after, such anniversary date, notice by the stockholder to be timely must be so delivered, or mailed and received, not later than the close of business on the tenth (10th) day following the day on which the date of such meeting has been first "publicly disclosed" (in the manner provided in the last sentence of this Section 2.4(a) by the Corporation). Any stockholder's notice pursuant to this Section 2.4(a) shall set forth (i) as to each person whom the stockholder proposes to nominate for election or re-election 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 (including such person's written consent to being named in the proxy statement as a nominee and to serving as director if elected); and (ii) as to the stockholder giving notice (A) the name and address, as they appear on the Corporation's books, of such stockholder and (B) the class and number of shares of the Corporation which are beneficially owned by such stockholder. At the request of the Board of Directors, any person nominated by the Board of Directors for election as a director shall furnish to the Secretary of the Corporation that information required to be set forth in a stockholder's notice of nomination which pertains to the nominee. No person shall be eligible to serve as a director of the Corporation unless nominated in accordance with the procedures set forth herein. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not properly brought before the meeting and in accordance with the provisions of these Amended and Restated Bylaws (these "Bylaws"), and if he or she should so determine, he or she shall so declare to the meeting and any such nomination not properly brought before the meeting shall be disregarded. For purposes of these Bylaws, "publicly disclosed" or "public disclosure" shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or a comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission. -2- (b) NOTICE OF BUSINESS. Except as set forth in Section 2.4(a), at any meeting of the stockholders, only such business shall be conducted as shall have been brought before the meeting (a) by or at the direction of the Board of Directors or (b) by any stockholder of the Corporation who shall be entitled to vote at such meeting and who complies with the notice procedures set forth in this Section 2.4(b). For business to be properly brought before a stockholder meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a stockholder's notice must be delivered to, or mailed and received at, the principal executive offices of the Corporation not less than 50 days prior to the meeting; provided, however, that in the event that less than 55 days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be received no later than the close of business on the tenth (10th) day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made. A stockholder's notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the meeting (a) a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting, (b) the name and address, as they appear on the Corporation's books, of the stockholder proposing such business, (c) the class and number of shares of the Corporation which are beneficially owned by the stockholder, and (d) any material interest of the stockholder in such business. Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at a stockholder meeting except (i) in accordance with the procedures set forth in this Section 2.4(b) or (ii) with respect to nominations of persons for election as directors of the Corporation, in accordance with the provisions of Section 2.4(a) hereof. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the provisions of these Bylaws, and if he or she should so determine, he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Notwithstanding the foregoing provisions of this Section 2.4(b), a stockholder shall also comply with all applicable requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder with respect to the matters set forth in this Section. 2.5 REGISTERED HOLDERS OF SHARES; CLOSING OF SHARE TRANSFER RECORDS; AND RECORD DATE. (a) REGISTERED HOLDERS AS OWNERS. Unless otherwise provided under Delaware law, the Corporation may regard the person in whose name any shares issued by the Corporation are registered in the stock transfer records of the Corporation at any particular time (including, without limitation, as of a record date fixed pursuant to paragraph (b) of this Section 2.5) as the owner of those shares at that time for purposes of voting those shares, receiving distributions thereon or notices in respect thereof, transferring those shares, exercising rights of dissent with respect to those shares, entering into agreements with respect to those shares, or giving proxies with respect to those shares; and neither the Corporation nor any of its officers, directors, employees or agents shall be liable for regarding that person as the owner of those shares at that time for those purposes, regardless of whether that person possesses a certificate for those shares. -3- (b) RECORD DATE. For the purpose of determining stockholders of the Corporation entitled to notice of or to vote at any meeting of stockholders of the Corporation or any adjournment thereof, or entitled to receive a distribution by the Corporation (other than a distribution involving a purchase or redemption by the Corporation of any of its own shares) or a share dividend, or in order to make a determination of stockholders of the Corporation for any other proper purpose, the Board of Directors may fix in advance a date as the record date for any such determination of stockholders of the Corporation, such date in any case to be not more than 60 days and, in the case of a meeting of stockholders, not less than 10 days, prior to the date on which the particular action requiring such determination of stockholders of the Corporation is to be taken. The Board of Directors shall not close the books of the Corporation against transfers of shares during the whole or any part of such period. If the Board of Directors does not fix a record date for any meeting of the stockholders of the Corporation, the record date for determining stockholders of the Corporation entitled to notice of or to vote at such meeting shall be at the close of business on the day next preceding the day on which notice is given, or, if in accordance with Section 7.2 of these Bylaws notice is waived, at the close of business on the day next preceding the day on which the meeting is held. 2.6 QUORUM. Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a majority of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders of the Corporation for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders of the Corporation, the stockholders of the Corporation entitled to vote at such meeting, present in person or represented by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. 2.7 VOTING BY STOCKHOLDERS. (a) VOTING ON MATTERS OTHER THAN THE ELECTION OF DIRECTORS. With respect to any matters as to which no other voting requirement is specified by the DGCL, the Certificate of Incorporation or these Bylaws, the affirmative vote required for stockholder action shall be that of a majority of the shares present in person or represented by proxy at the meeting (as counted for purposes of determining the existence of a quorum at the meeting). In the case of a matter submitted for a vote of the stockholders of the Corporation as to which a stockholder approval requirement is -4- applicable under the stockholder approval policy of any stock exchange or quotation system on which the capital stock of the Corporation is traded or quoted, the requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any provision of the Internal Revenue Code, in each case for which no higher voting requirement is specified by the DGCL, the Certificate of Incorporation or these Bylaws, the vote required for approval shall be the requisite vote specified in such stockholder approval policy, the Exchange Act or Internal Revenue Code provision, as the case may be (or the highest such requirement if more than one is applicable). For the approval of the appointment of independent public accountants (if submitted for a vote of the stockholders of the Corporation), the vote required for approval shall be a majority of the votes cast on the matter. (b) VOTING IN THE ELECTION OF DIRECTORS. Unless otherwise provided in the Certificate of Incorporation or these Bylaws in accordance with the DGCL, directors shall be elected by a plurality of the votes cast by the holders of outstanding shares of capital stock of the Corporation entitled to vote in the election of directors at a meeting of stockholders at which a quorum is present. (c) OTHER. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of stockholders of the Corporation, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot. 2.8 PROXIES. Each stockholder of the Corporation entitled to vote at a meeting of stockholders of the Corporation may authorize another person or persons to act for him or her by proxy. Proxies for use at any meeting of stockholders of the Corporation shall be filed with the Secretary, or such other officer as the Board of Directors may from time to time determine by resolution, before or at the time of the meeting. All proxies shall be received and taken charge of and all ballots shall be received and canvassed by the secretary of the meeting who shall decide all questions relating to the qualification of voters, the validity of the proxies and the acceptance or rejection of votes, unless an inspector or inspectors shall have been appointed by the chairman of the meeting, in which event such inspector or inspectors shall decide all such questions. 2.9 NO STOCKHOLDER ACTION WITHOUT MEETING. From and after the first date as of which the Corporation has a class or series of capital stock registered under the Exchange Act, no action required to be taken or that may be taken at any annual or special meeting of the stockholders of the Corporation may be taken without a meeting, and the power of the stockholders of the Corporation of the Corporation to consent in writing to the taking of any action by written consent without a meeting is specifically denied, except for action by unanimous written consent, which is expressly allowed. ARTICLE III DIRECTORS 3.1 DUTIES AND POWERS. The business, affairs and property of the Corporation shall be managed by or under the directorship of the Board of Directors, which may exercise all -5- such powers of the Corporation and do all such lawful acts and things as are not by law, the Certificate of Incorporation or these Bylaws authorized or required to be exercised or done by the stockholders of the Corporation. 3.2 NUMBER AND ELECTION OF DIRECTORS. The number of directors of the Corporation shall be determined in the manner provided in the Corporation's Certificate of Incorporation. Directors shall be elected for one (1) year or other terms as specified in the Corporation's Certificate of Incorporation, and each director elected shall hold office during the term for which he or she is elected and until his or her successor is elected and qualified, subject, however, to his or her prior death, resignation, retirement or removal for cause from office. 3.3 VACANCIES. Any vacancies occurring in the Board of Directors and newly created directorships shall be filled in the manner provided in the Corporation's Certificate of Incorporation. 3.4 RESIGNATIONS. Any director of the Corporation may resign at any time upon written notice to the Corporation. To be effective, such notice of resignation need not be formally accepted by the Board of Directors. A director of the Corporation need not be a stockholder of the Corporation or a resident of the State of Delaware. 3.5 CHAIRMAN. The Board of Directors may elect from among its members a Chairman (such Chairman may also be the Executive Chairman) who shall preside over all meetings of the Board of Directors and stockholders of the Corporation. In his absence or inability to act, the Executive Chairman shall preside over the meetings of the Board of Directors and the stockholders. The Chairman shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him or her by the Board of Directors. 3.6 MEETINGS. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called by the Chairman, if there be one, or by the President or by any two or more directors of the Corporation. Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail not less than 48 hours before the date of the meeting, by telephone, telegram or facsimile on 24 hours' notice or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. Unless otherwise required by law, neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. 3.7 QUORUM. Except as may be otherwise specifically provided by law, the Certificate of Incorporation or these Bylaws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board -6- of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. 3.8 ACTIONS WITHOUT A MEETING. Unless otherwise provided by the Certificate of Incorporation or these Bylaws, 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 the members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee. 3.9 TELEPHONIC MEETINGS. Unless otherwise provided by the Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.9 shall constitute presence in person at such meeting. 3.10 COMMITTEES. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors of the Corporation as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any absent or disqualified member. Any committee, to the extent allowed by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required. 3.11 REIMBURSEMENT OF EXPENSES. The directors of the Corporation shall be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary or other consideration as director. No such reimbursement shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees shall be allowed like reimbursement for attending committee meetings. 3.12 PROTECTION FOR RELIANCE. Any member of the Board of Directors, or any member of any committee designated by the Board of Directors, shall, in the performance of his duties, be fully protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of the Corporation's officers or employees, or committees of the Board of Directors, or by any other person as to matters the member reasonably believes are within such other person's -7- professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation. 3.13 CONSIDERATION OF SOCIAL, ECONOMIC AND OTHER FACTORS IN EVALUATING A BID. The Board of Directors of the Corporation, when evaluating any offer of another party to (a) purchase or exchange any securities or property for any outstanding equity securities of the Corporation, (b) merge or consolidate the Corporation with another corporation, or (c) purchase or otherwise acquire all or substantially all of the properties and assets of the Corporation, shall, in connection with the exercise of its judgment in determining what is in the best interests of the Corporation and its stockholders, give due consideration not only to the price or other consideration being offered but also to all other relevant factors, including without limitation (i) the financial and managerial resources and future prospects of the party, (ii) the possible effects on the business of the Corporation and its subsidiaries and on the employees, customers, suppliers and creditors of the Corporation and its subsidiaries, and (iii) the effects on the communities in which the Corporation's facilities are located. ARTICLE IV OFFICERS 4.1 GENERAL. The officers of the Corporation shall be chosen by the Board of Directors and shall be a President and a Secretary. The Board of Directors, in its discretion, may also choose a Chief Financial Officer, a Treasurer and one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws. The officers of the Corporation need not be stockholders or directors of the Corporation. 4.2 ELECTION. The Board of Directors shall elect or appoint the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are elected and qualified, or until the earlier of their resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation may be filled by the Board of Directors. 4.3 DUTIES. The officers of the Corporation shall have such powers and duties as generally pertain to their offices, except as modified herein or by the Board of Directors, as well as such powers and duties as from time to time may be conferred by the Board of Directors. 4.4 EXECUTIVE CHAIRMAN. The Executive Chairman, who need not be chosen from among the directors, shall have active, executive management of the operations of the Corporation, subject, however, to the control of the Board of Directors. The Executive Chairman shall have the authority to manage and direct the duties and responsibilities of any other officer or employee of the Corporation. The Executive Chairman shall also preside at all meetings of the stockholders of the Corporation and the Board of Directors, unless the Board of -8- Directors has appointed a Chairman of the Board, who would preside at all such meetings of the stockholders and the Board of Directors. He or she shall, in general, perform all duties incident to the office of the Executive Chairman and such other duties as from time to time may be assigned to him or her by the Board of Directors. 4.5 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall, subject to the control of the Board of Directors and the Executive Chairman, have general executive management of the operations of the Corporation. At the request of the Executive Chairman, the Chief Executive Officer may temporarily act in his or her place. In the case of the death of the Executive Chairman, or in the case of his or her absence or inability to act without having designated the Chief Executive Officer to act temporarily in his or her place, the Chief Executive Officer shall perform the duties of the Executive Chairman as designated by the Board of Directors. The Chief Executive Officer shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by the Board of Directors or Executive Chairman. 4.6 PRESIDENT. The President shall, subject to the control of the Board of Directors, the Executive Chairman and the Chief Executive Officer, assist the Executive Chairman and the Chief Executive Officer with the general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The President shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by the Board of Directors, the Executive Chairman or the Chief Executive Officer. 4.7 CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall be the principal financial officer of the Corporation; shall have charge and custody of and be responsible for all funds of the Corporation and deposit all such funds in the name of the Corporation in such depositories as may be designated by the Board of Directors; shall receive and give receipts for moneys due and payable to the Corporation from any source; and, in general, shall perform all the duties incident to the office of the Chief Financial Officer and such other duties as from time to time may be assigned to him by the Board of Directors or by the Executive Chairman. 4.8 CHIEF OPERATING OFFICER. The Chief Operating Officer shall assist the Executive Chairman, the Chief Executive Officer and the President in the operations of the Corporation and shall have such powers and perform such duties as the Board of Directors, the Executive Chairman, the Chief Executive Officer or the President may from time to time prescribe. 4.9 VICE PRESIDENTS. At the request of the President or in his or her absence or in the event of his inability or refusal to act, any Vice President may perform the duties of the President and, when so acting, such officer shall have all the powers of and be subject to all the restrictions upon the President. Each Vice President shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. If there is no Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President or in the event of the inability or refusal of the President to act, shall -9- perform the duties of the President and, when so acting, such officer shall have all the powers of and be subject to all the restrictions upon the President. 4.10 SECRETARY AND ASSISTANT SECRETARIES. The Secretary or an Assistant Secretary shall attend all meetings of the Board of Directors and all meetings of stockholders of the Corporation and record all the proceedings at such meetings in a book or books to be kept for that purpose, and the Secretary or an Assistant Secretary shall also perform similar duties for the standing committees when required. The Secretary or an Assistant Secretary shall give, or cause to be given, notice of all meetings of the stockholders of the Corporation and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors, the Chairman of the Board, the President or any Vice President. If a Secretary or Assistant Secretary shall be unable or shall refuse to cause to be given notice of any meeting of the stockholders of the Corporation or any special meeting of the Board of Directors, then either the Board of Directors, the Chairman of the Board, the President or any Vice President may choose another officer to cause such notice to be given. The Secretary or an Assistant Secretary shall see that all corporate books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be. 4.11 TREASURER AND ASSISTANT TREASURERS. The Treasurer or an Assistant Treasurer shall have custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer or an Assistant Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the Chairman of the Board, the Executive Chairman, the Chief Executive Officer, the President or the Chief Financial Officer and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer or Assistant Treasurer and of the financial condition of the Corporation. 4.12 REMOVAL. Any officer may be removed, with or without cause, by the Board of Directors. Any such removal shall be without prejudice to any rights such officer may have pursuant to any employment contract he or she may have with the Corporation. Any vacancy in an office may be filled by the Board of Directors. 4.13 VOTING SECURITIES OWNED BY THE CORPORATION. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name and on behalf of the Corporation by the Chairman of the Board, the President or any Vice President, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and powers incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised -10- and possessed if present. The Board of Directors may, by resolution, from time to time, confer like powers upon any other person or persons. ARTICLE V STOCK 5.1 FORM OF CERTIFICATES. The shares of stock of the Corporation shall be represented by certificates of stock, signed in the name of the Corporation (i) by the Chairman of the Board, the President or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Corporation, certifying the number of shares of stock in the Corporation owned by the holder named in the certificate. 5.2 SIGNATURES. Where a certificate is countersigned by (i) a transfer agent other than the Corporation or its employee or (ii) a registrar other than the Corporation or its employee, any other signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue. 5.3 LOST CERTIFICATES. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the delivery to the Secretary of the Corporation of an affidavit of the fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his or her legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. 5.4 TRANSFERS. Stock of the Corporation shall be transferable in the manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate or by his attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be canceled before a new certificate shall be issued. 5.5 BENEFICIAL OWNERSHIP. 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 share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by law. -11- 5.6 DIVIDENDS. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting thereof, and may be paid in cash, in property or in shares of capital stock of the Corporation. 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 Board of Directors from time to time, in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. ARTICLE VI INDEMNIFICATION 6.1 GENERAL. The Corporation shall indemnify and hold harmless an Indemnitee (as this and all other capitalized words used in this Article VI not previously defined in these Bylaws are defined in Section 6.9 hereof) from and against any and all judgments, penalties, fines (including excise taxes), amounts paid in settlement and, subject to Section 6.2, Expenses (including all interest, assessments and other charges paid or payable in connection with or in respect of such judgments, fines, penalties, amounts paid in settlement or Expenses) arising out of any event or occurrence related to the fact that Indemnitee is or was a director or officer of the Corporation. The Corporation may, but shall not be required to, indemnify and hold harmless an Indemnitee from and against any and all judgments, penalties, fines (including excise taxes), amounts paid in settlement and, subject to Section 6.2, Expenses (including all interest, assessments and other charges paid or payable in connection with or in respect of such judgments, fines, penalties, amounts paid in settlement or Expenses) arising out of any event or occurrence related to the fact that Indemnitee is or was an employee or agent of the Corporation or is or was serving in another Corporate Status. 6.2 EXPENSES. If Indemnitee is, by reason of his or her serving as a director, officer, employee or agent of the Corporation, a party to and is successful, on the merits or otherwise, in any Proceeding, the Corporation shall indemnify such person against all Expenses actually and reasonably incurred by such person or on his or her behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to any Matter in such Proceeding, the Corporation shall indemnify Indemnitee against all Expenses actually and reasonably incurred by such person or on his or her behalf relating to such Matter. The termination of any Matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such Matter. If Indemnitee is, by reason of any Corporate Status other than his or her serving as a director, officer, employee or agent of the Corporation, a party to and is successful, on the merits or otherwise, in any Proceeding, the Corporation may, but shall not be required to, indemnify such person against all Expenses actually and reasonably incurred by such person or on his or her behalf in connection therewith. To the extent that the Indemnitee is, by reason of his or her Corporate Status, a witness in any Proceeding, the Corporation may, but shall not be required to, indemnify such person against all Expenses actually and reasonably incurred by such person or on his or her behalf in connection therewith. -12- 6.3 ADVANCES. In the event of any threatened or pending Proceeding in which Indemnitee is a party or is involved and that may give rise to a right of indemnification under this Article VI, following written request to the Corporation by Indemnitee, the Corporation may, but shall not be required to, pay to Indemnitee amounts to cover Expenses reasonably incurred by Indemnitee in such Proceeding in advance of its final disposition upon the receipt by the Corporation of (i) a written undertaking executed by or on behalf of Indemnitee providing that Indemnitee will repay the advance if it shall ultimately be determined that Indemnitee is not entitled to be indemnified by the Corporation as provided in these Bylaws and (ii) satisfactory evidence as to the amount of such Expenses. 6.4 REQUEST FOR INDEMNIFICATION. To request indemnification, Indemnitee shall submit to the Secretary of the Corporation a written claim or request. Such written claim or request shall contain sufficient information to reasonably inform the Corporation about the nature and extent of the indemnification or advance sought by Indemnitee. The Secretary of the Corporation shall promptly advise the Board of Directors of such request. 6.5 NONEXCLUSIVITY OF RIGHTS. This Article VI shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled to under applicable law, the Certificate of Incorporation, these Bylaws, any agreement, a vote of stockholders or a resolution of directors of the Corporation, or otherwise. No amendment, alteration or repeal of this Article VI or any provision hereof shall be effective as to any Indemnitee for acts, events and circumstances that occurred, in whole or in part, before such amendment, alteration or repeal. The provisions of this Article VI shall continue as to an Indemnitee whose Corporate Status has ceased for any reason and shall inure to the benefit of his or her heirs, executors and administrators. Neither the provisions of this Article VI nor those of any agreement to which the Corporation is a party shall be deemed to preclude the indemnification of any person who is not specified in this Article VI as having the potential to receive indemnification or is not a party to any such agreement, but whom the Corporation has the power or obligation to indemnify under the provisions of the DGCL. 6.6 INSURANCE AND SUBROGATION. To the extent the Corporation maintains an insurance policy or policies providing liability insurance for directors or officers of the Corporation, an Indemnitee who is a director or officer of the Corporation shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of coverage available for any such director or officer under such policy or policies. In the event of any payment hereunder, the Corporation shall be subrogated to the extent of such payment to all the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Corporation to bring suit to enforce such rights. The Corporation shall not be liable under this Article VI to make any payment of amounts otherwise indemnifiable hereunder if, and to the extent that, Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise. 6.7 SEVERABILITY. If any provision or provisions of this Article VI shall be held to be invalid, illegal or unenforceable for any reason whatsoever, the validity, legality and -13- enforceability of the remaining provisions shall not in any way be affected or impaired thereby; and, to the fullest extent possible, the provisions of this Article VI shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable. 6.8 CERTAIN PERSONS NOT ENTITLED TO INDEMNIFICATION. Notwithstanding any other provision of this Article VI, no person shall be entitled to indemnification or advancement of Expenses under this Article VI with respect to any Proceeding, or any Matter therein, brought or made by such person against the Corporation. 6.9 DEFINITIONS. For purposes of this Article VI: (a) "CORPORATE STATUS" describes the status of a person who is or was a director, officer, employee or agent of the Corporation or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such person is or was serving at the written request of the Corporation. For purposes of this Agreement, "serving at the written request of the Corporation" includes any service by Indemnitee which imposes duties on, or involves services by, Indemnitee with respect to any employee benefit plan or its participants or beneficiaries. (b) "EXPENSES" shall include all reasonable attorneys' fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or preparing to be a witness in a Proceeding. (c) "INDEMNITEE" includes any person who is, or is threatened to be made, a witness in or a party to any Proceeding as described in Section 6.1 or 6.2 hereof by reason of his Corporate Status. (d) "MATTER" is a claim, a material issue or a substantial request for relief. (e) "PROCEEDING" includes any action, suit, alternate dispute resolution mechanism, hearing or any other proceeding, whether civil, criminal, administrative, arbitrative, investigative or mediative, any appeal in any such action, suit, alternate dispute resolution mechanism, hearing or other proceeding and any inquiry or investigation that could lead to any such action, suit, alternate dispute resolution mechanism, hearing or other proceeding, except one initiated by an Indemnitee to enforce his or her rights under this Article VI. ARTICLE VII NOTICES 7.1 NOTICES. Whenever written notice is required by law, the Certificate of Incorporation or these Bylaws to be given to any director, member of a -14- committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or stockholder at his or her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Written notice may also be given personally or by telegram, telex, facsimile or cable. 7.2 WAIVER OF NOTICE. Whenever any notice is required by law, the Certificate of Incorporation or these Bylaws to be given to any director, member of a committee or stockholder of the Corporation, 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 thereto. ARTICLE VIII MISCELLANEOUS 8.1 FISCAL YEAR. The fiscal year of the Corporation shall end on December 31 of each year. 8.2 AMENDMENTS. These Bylaws may be altered, amended or repealed or new bylaws may be adopted only in the manner provided in the Corporation's Certificate of Incorporation. Amended and Restated April 16, 2002. -15- -----END PRIVACY-ENHANCED MESSAGE-----