-----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, GcQyjyBkLEhaE1dTS7Zh4q6Wc3+SKnGjN4pkE9h9rrjyqo2cPn+eIWyNCkWWMpQx 97hkJqI46D/qj8EU8isAtg== 0000076744-97-000022.txt : 19971203 0000076744-97-000022.hdr.sgml : 19971203 ACCESSION NUMBER: 0000076744-97-000022 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19970202 ITEM INFORMATION: FILED AS OF DATE: 19971202 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: PAYLESS CASHWAYS INC CENTRAL INDEX KEY: 0000076744 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-LUMBER & OTHER BUILDING MATERIALS DEALERS [5211] IRS NUMBER: 420945849 STATE OF INCORPORATION: IA FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-08210 FILM NUMBER: 97731452 BUSINESS ADDRESS: STREET 1: TWO PERSHING SQ 2300 MAIN ST CITY: KANSAS CITY STATE: MO ZIP: 64108 BUSINESS PHONE: 8162346000 8-K 1 FORM 8-K DECEMBER 2, 1997 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) December 2, 1997 PAYLESS CASHWAYS, INC. (Exact name of registrant as specified in its charter) Delaware 0-4437 42-0945849 (State or other jurisdiction (Commission File Number) (IRS Employer of incorporation) Identification No.) Two Pershing Square, 2300 Main Street, P.O. Box 419466, Kansas City, Missouri 64141-0466 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (816) 234-6000 N/A (Former name or former address, if changed since last report.) 2 ITEM 5: Other Events. Reincorporation in the State of Delaware Pursuant to the Payless Cashways, Inc. (the "Company") First Amended Plan of Reorganization, as modified on October 9, 1997, and confirmed by the Bankruptcy Court for the Western District of Missouri on November 19, 1997 (the "Plan"), the Company has changed its state of incorporation from Iowa to Delaware (the "Reincorporation"). In this discussion, the term "Iowa Company" refers to the former Iowa corporation, the term "Delaware Company" refers to the new Delaware corporation, which is the successor to the Iowa company, and the term the "Company" includes either or both, without regard to the state of incorporation. The Reincorporation was effected by merging the Iowa Company into the Delaware Company, which was recently incorporated as a wholly-owned subsidiary of the Iowa Company for purposes of the merger (the "Merger"). The Merger was consummated on December 2, 1997. The Delaware Company continues as the surviving corporation and has been named Payless Cashways, Inc. As a result of the Reincorporation, stockholders of the Iowa Company, whose rights were previously governed by Iowa law, have become stockholders of the Delaware Company, with their rights now governed by Delaware law. In addition, certain allowed claims and interests were automatically converted into the right to receive shares of common stock of the Delaware Company as provided in the Plan. Description of Capital Stock The following statements are brief summaries of certain provisions of the capital stock of the Company. Such summaries do not purport to be complete and are subject to and are qualified in their entirety by reference to the provisions of the Certificate of Incorporation (the "Certificate") and Bylaws, which are attached hereto and incorporated herein by reference. The total number of shares of all classes of stock which the Company has the authority to issue pursuant to the Certificate is 50,000,000 shares of common stock, par value $.01 per share (the "Common Stock"). It is anticipated that approximately 20,000,000 shares of Common Stock will be issued pursuant to the Plan. The holders of shares of Common Stock are entitled to share ratably in such dividends as may be declared by the Board of Directors and paid by the Company out of funds legally available therefor. The declaration and payment of dividends on the Common Stock are restricted by the terms of the Company's outstanding indebtedness. Holders of Common Stock have no conversion rights, participate ratably in any distribution of assets to stockholders in liquidation and have no redemption, preemptive or other subscription rights. Each outstanding share of Common Stock is entitled to one vote on each matter on which the stockholders of the Company are entitled to vote. When issued, each outstanding share of Common Stock will be fully paid and non-assessable. 3 Anti-Takeover Provisions The following statements are brief summaries of certain provisions of the Certificate and Bylaws that could be considered anti-takeover provisions. Such summaries do not purport to be complete and are subject to and are qualified in their entirety by reference to the provisions of the Certificate and Bylaws, which are attached hereto and incorporated herein by reference. (i) Classified Board of Directors The Certificate provides that the Company's Board of Directors is divided into three classes as nearly equal in number as possible with directors in each class serving succeeding three-year terms after the initial term. The classification of the Board of Directors is intended to assure continuity and stability in leadership and policy on the Board. Classification of the Board of Directors may have the effect of making the removal of incumbent directors more time-consuming and difficult, and, therefore, may have the effect of discouraging an unsolicited takeover attempt or an attempt to gain control of the Board through a proxy solicitation. (ii) Removal of Directors The Certificate provides that any director may be removed from office for cause by a majority vote of the entire board of directors. The Certificate also provides that any director, or the entire board of directors, may be removed from office for cause by the affirmative vote of the holders of at least a majority of the voting power of the shares entitled to vote in an election of directors, voting as a single class. (iii) Proposed Business for Annual Meetings In order to be brought before an annual meeting, any business proposed by a stockholder must be deemed to be properly brought before such meeting pursuant to applicable state laws and the rules and regulations of the Securities and Exchange Commission. In addition, except as may otherwise be required by applicable law or regulation, the Certificate provides that a stockholder may make a nomination or nominations for director of the Company at an annual meeting of stockholders or may bring up any other matter for consideration and action by the stockholders at an annual meeting of stockholders, only if the stockholder complies with the requirements described below. If such provisions shall not have been satisfied, any nomination sought to be made or other business sought to be presented by a stockholder for consideration and action by the stockholders at such a meeting shall be deemed not properly brought before the meeting, shall be ruled by the chairman of the meeting to be out of order, and shall not be presented or acted upon at the meeting. The stockholder proposing business or making a nomination must be a stockholder of record on both the record date for such annual meeting and at the time of such meeting, and must be entitled to vote thereat. In addition, the stockholder must deliver written notice of the proposal 4 or nomination to the secretary of the Company no less than sixty days prior to the first anniversary of the previous year's annual meeting; provided, however, that if the date of the annual meeting has been changed by more than thirty days from the date of the previous year's annual meeting, such notice must be received by the secretary not later than ten days following the date on which public announcement of the date of such meeting is first made. If the stockholder is proposing business other than a nomination for director, then the notice must disclose, among other things, any material interest of the stockholder in the proposed business as well as describing the nature of the business, the reasons why the business is being raised and if and how the business benefits the Company. If the stockholder is making a nomination for director, then the notice must specify the reasons for such nomination, a description of the qualifications and business or professional experience of each proposed nominee and a statement signed by each nominee indicating his or her willingness to serve if elected, and must disclose the information about the nominee that would be required by the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations promulgated thereunder to be disclosed in the proxy materials for the meeting involved if he or she were a nominee of the Company. In addition, the Company may request the delivery of all other information that would be required to be filed with the Securities and Exchange Commission if, with respect to the business proposed to be brought before the meeting, the person proposing such business was a participant in a solicitation subject to Section 14 of the 1934 Act. In the event the required notice is properly and timely given, such business may be presented only by the stockholder who shall have given the notice or a representative of such stockholder who is qualified under the law of the State of Delaware to present the proposal on the stockholder's behalf at the meeting. This provision is intended to provide stockholders with the information necessary to make an informed decision when voting for Company directors. It may have the effect of delaying, deferring or preventing a change in control of the Company because the burdens it imposes favor incumbent directors. (iv) Special Meetings Except as otherwise required by law, stockholders may call special meetings of the stockholders only by submitting a written request for such a meeting by holders of record representing at least 25% of the voting power of all of the shares of the Company entitled to vote on the issue or issues to be presented at such a meeting. This provision could have the effect of delaying, deferring or preventing a change in control of the Company because the difficulty in properly submitting such a request may have the effect of discouraging an attempt to gain control of the board of directors through the use of a special meeting. 5 (v) Meetings by Stockholder Consent No action may be taken by the stockholders other than action properly taken at an annual or special meeting of stockholders of the Company. By limiting the means of stockholder action, including action to remove incumbent directors, this restriction may have the effect of delaying, deferring or preventing a change in control of the Company. The Delaware Business Combination Act As a Delaware corporation, the Company is now governed by Delaware law. Section 203 of the Delaware General Corporation Law (the "Delaware Business Combination Act") imposes a significant restraint upon takeovers. The Delaware Business Combination Act imposes a three-year moratorium on business combinations (as defined in the Delaware Business Combination Act) between a Delaware corporation and an "interested stockholder" (in general, a stockholder owning 15% or more of a corporation's outstanding voting stock) or an affiliate or associate thereof unless (a) prior to an interested stockholder becoming such, the board of directors of the corporation approved the business combination or the transaction resulting in the interested stockholder becoming such; (b) upon consummation of the transaction resulting in an interested stockholder becoming such, the interested stockholder owns 85% or more of the voting stock outstanding at the time the transaction commenced (excluding, from the calculation of outstanding shares, shares beneficially owned by management, directors and certain employee stock plans); or (c) on or after an interested stockholder becomes such, the business combination is approved by (i) the board of directors and (ii) holders of at least 66 2/3% of the outstanding shares (other than those shares beneficially owned by the interested stockholder) at a meeting of stockholders. The Delaware Business Combination Act provides that the term "business combination" means (a) a merger or consolidation, (b) a sale, lease, exchange or other transfer of 10% or more of the aggregate assets of the corporation, (c) the issuance or transfer by the corporation of any stock of the corporation which would have the effect of increasing the interested stockholder's proportionate share of any class or series of stock of the corporation, (d) any other transaction which has the effect of increasing the proportionate share of any class or series of stock of the corporation which is owned by an interested stockholder, and (e) the receipt by an interested stockholder of the benefit (except proportionately as a stockholder) of loans, advances, guarantees, pledges or other financial benefits provided by the corporation. Since the Company has not "opted out" of the Delaware Business Combination Act, its provisions apply to any business combinations between the Company and any interested stockholders hereafter. The restrictions on business combinations may have the effect of delaying, deferring, or preventing a change in control of the Company by deterring potential takeover attempts. 6 ITEM 7: Financial Statements and Exhibits. (a) Financial Statements of Businesses Acquired. Not applicable. (b) Pro Forma Financial Information. Not applicable. (c) Exhibits. 2.1 First Amended Plan of Reorganization, as modified on October 9, 1997 (incorporated herein by reference to Exhibit 2.1 filed as part of the Company's Quarterly Report on Form 10-Q for the quarter ended August 30, 1997). 2.2 Agreement and Plan of Merger in connection with the Reincorporation from Iowa to Delaware. 4.1 Certificate of Incorporation. 4.2 Bylaws. 7 Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. PAYLESS CASHWAYS, INC. Dated: December 2, 1997 By: /s/ Stephen A. Lightstone ---------------------------------------- Stephen A. Lighstone, Senior Vice President Finance and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) EX-2 2 AGREEMENT & PLAN OF MERGER 1 AGREEMENT AND PLAN OF MERGER This AGREEMENT AND PLAN OF MERGER ("Merger Agreement") is made and entered into pursuant to Delaware General Corporate Law ss.253 and Iowa Business Corporate Act ss. 490.1107 as of the 26th day of November, 1997, by and between PAYLESS CASHWAYS, INC., an Iowa corporation ("Payless Iowa"), and PAYLESS CASHWAYS ACQUISITION, INC., a Delaware corporation ("Payless Delaware"). WHEREAS, Payless Iowa, on the date of this Merger Agreement, has authority to issue 150,000,000 shares of voting common stock, par value $.01 per share, 5,000,000 shares of non-voting Class A common stock, par value $.01 per share, 5,000,000 shares of non-voting Class B common stock, par value $.01 per share, and 25,000,000 shares of preferred stock, par value $1.00 per share; WHEREAS, Payless Delaware, on the date of this Merger Agreement, has authority to issue 50,000,000 shares of common stock, par value $.01 per share; WHEREAS, the merger of Payless Iowa with and into Payless Delaware is to be effectuated in accordance with that certain First Amended Plan of Reorganization, dated September 5, 1997, as modified on October 9, 1997, and filed in the matter captioned In re Payless Cashways, Inc., Case No. 97-50543-11 (as modified by the Order and at the November 19 hearing, the "Plan") and confirmed by the United States Bankruptcy Court for the Western District of Missouri on November 19, 1997 (the "Order"). NOW THEREFORE, in consideration of the mutual agreements and covenants set forth herein, Payless Iowa and Payless Delaware hereby agree to merge as follows: 1. Merger. Subject to the terms and conditions of this Merger Agreement, Payless Iowa shall be merged with and into Payless Delaware, and Payless Delaware shall survive the merger ("Merger"), effective at the Effective Time, as hereinafter defined. 2. Effective Time. Subject to the provisions of this Merger Agreement, a certificate of ownership and merger shall be duly executed and filed with the Secretary of State of Delaware and articles of merger shall be duly executed and filed with the Secretary of State of Iowa. The Merger shall become effective at 9:00 a.m. E.S.T. on the date specified in the filings to be made with the secretaries of state of Delaware and Iowa. The date and time when the Merger shall become effective is herein referred to as the "Effective Time." 3. Succession. At the Effective Time, the separate existence of Payless Iowa shall cease, and Payless Delaware shall be the surviving corporation and shall succeed to the rights, assets, liabilities and obligations of Payless Iowa in the manner and to the extent more fully set 2 forth in the Delaware General Corporation Law and the Plan, each as presently in effect or as may hereafter be amended. 4. Directors and Officers and Governing Documents. The directors and officers of Payless Delaware at the Effective Time shall be the directors and officers of Payless Delaware as the surviving corporation from and after the Effective Time until their death, resignation, disqualification or removal from office, election and qualification of a successor or termination of employment. The certificate of incorporation of Payless Delaware, as in effect at the Effective Time, shall continue to be the certificate of incorporation of Payless Delaware as the surviving corporation without change or amendment until further amended in accordance with the provisions thereof and applicable law. The bylaws of Payless Delaware, as in effect at the Effective Time, shall continue to be the bylaws of Payless Delaware as the surviving corporation without change or amendment until further amended in accordance with the provisions thereof, the certificate of incorporation of Payless Delaware and applicable law. 5. Further Assurances. From time to time, as and when required by Payless Delaware or by its successors and assigns, there shall be executed and delivered on behalf of Payless Iowa such deeds and other instruments, and there shall be taken or caused to be taken by it such further and other action, as shall be appropriate or necessary in order to vest, perfect or confirm, of record or otherwise, in Payless Delaware the title to and possession of all property, interests, assets, rights, privileges, immunities, powers, franchises and authority of Payless Iowa, and otherwise to carry out the purposes of this Merger Agreement and the Plan, and the officers and directors of Payless Delaware are fully authorized in the name and on behalf of Payless Iowa or otherwise to take any and all such action and to execute and deliver any and all such deeds and other instruments. 6. Stock, Retirement and Conversion. At the Effective Time, the 100 shares of Payless Delaware common stock presently issued and outstanding in the name of Payless Iowa shall be canceled and retired and resume the status of authorized and unissued shares of Payless Delaware common stock, and no shares of Payless Delaware common stock or other securities or property of Payless Delaware shall be issued or delivered in respect thereof. At the Effective Time, by virtue of the Merger and without any action on the part of any holder of common or preferred stock of Payless Iowa, all such stock shall be converted into shares of Payless Delaware common stock, as and to the extent set forth in the Plan and no other shares of common stock or other securities or property of Payless Delaware shall be issued or delivered in respect thereof. 7. Employee Benefit Plans. As of the Effective Time, and as set forth in the Plan and the related First Amended Disclosure Statement, dated October 9, 1997, Payless Delaware hereby assumes all obligations of Payless Iowa under any and all employee benefit plans in effect as of said date or with respect to which employee rights or accrued benefits are outstanding as of said date. 3 8. Book Entries. At the Effective Time, entries shall be made upon the books of Payless Delaware to adjust the assets, liabilities and owner's equity of the corporation pursuant to Statement of Position 90-7 of the American Institute of Certified Public Accountants and in a manner consistent with the Plan. 9. Abandonment. At any time before the Effective Time, this Merger Agreement may be terminated and the Merger may be abandoned by the board of directors of either Payless Delaware or Payless Iowa. 10. Counterparts. In order to facilitate the filing and recording of this Merger Agreement the same may be executed in any number of counterparts, each of which shall be deemed to be an original. 11. Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Merger Agreement. 12. Governing Law. This Merger Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware as presently in effect or as hereafter amended. IN WITNESS WHEREOF, this Merger Agreement is hereby executed on behalf of Payless Iowa and Payless Delaware by their respective duly authorized officers. PAYLESS CASHWAYS ACQUISITION, INC., Delaware corporation ATTEST: By: /s/ David Stanley -------------------------------------- David Stanley, Chief Executive Officer /s/ E. J. Holland, Jr. - ----------------------------------- E.J. Holland, Jr., Secretary PAYLESS CASHWAYS, INC., an Iowa corporation ATTEST: By: /s/ David Stanley -------------------------------------- David Stanley, Chief Executive Officer /s/ E. J. Holland, Jr. - ---------------------------------- E. J. Holland, Jr., Secretary 4 STATE OF MISSOURI ) ) ss. COUNTY OF JACKSON ) I, Deborah S. Dahm, a Notary Public, do hereby certify that on this 26th day of November, 1997, personally appeared before me David Stanley, who, being by me first duly sworn declared that he is Chief Executive Officer of PAYLESS CASHWAYS ACQUISITION, INC., a Delaware corporation, that he signed the foregoing document as Chief Executive Officer of the corporation, and that the statements therein contained are true. /s/ Deborah S. Dahm ---------------------------- Notary Public My Commission Expires: 2/2/2000 - ------------------------------ STATE OF MISSOURI ) ) ss. COUNTY OF JACKSON ) I, Deborah S. Dahm, a Notary Public, do hereby certify that on this 26th day of November, 1997, personally appeared before me David Stanley, who, being by me first duly sworn declared that he is Chief Executive Officer of PAYLESS CASHWAYS, INC., an Iowa corporation, that he signed the foregoing document as Chief Executive Officer of the corporation, and that the statements therein contained are true. /s/ Deborah S. Dahm ---------------------------- Notary Public My Commission Expires: 2/2/2000 - ------------------------------ EX-4 3 CERTIFICATE OF INCORPORATION 1 CERTIFICATE OF INCORPORATION OF PAYLESS CASHWAYS ACQUISITION, INC. ARTICLE I NAME OF CORPORATION The name of the corporation is Payless Cashways Acquisition, Inc. ARTICLE II REGISTERED OFFICE AND AGENT The address of the corporation's registered office in the State of Delaware is The Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801, and the name of its registered agent at that address is The Corporation Trust Company. ARTICLE III GENERAL NATURE OF BUSINESS The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation law as presently in effect or as it may hereafter be amended. ARTICLE IV CAPITAL STOCK Section 4.1 Authorizations. The total number of shares of stock which the corporation shall have the authority to issue is 50,000,000, all of which shares shall have par value of $.01 per share and be designated "Common Stock". The corporation shall reserve 20,000,000 shares of Common Stock to be available for distribution pursuant to the First Amended Plan of Reorganization, as modified (the "Plan"), of Payless Cashways, Inc., an Iowa Corporation and a debtor and debtor-in-possession (the "Debtor") in a Chapter 11 proceeding commenced in the United States Bankruptcy Court for the Western District of Missouri (the "Bankruptcy Court"), and shall issue and deliver a sufficient number of such shares to satisfy the Debtor's obligations under the Plan. Section 4.2 Voting Rights of Shares. Notwithstanding anything to the contrary contained in the Delaware General Corporation Law, the corporation shall not, to the extent required by 11 U.S.C. ss. 1123(a)(6), issue any class or series of capital stock without voting rights or with less than proportional voting rights. 2 ARTICLE V ACTION BY STOCKHOLDERS; FIRST ANNUAL MEETING; INSPECTION RIGHTS Section 5.1 Action by Stockholders. Any action required or permitted to be taken by the stockholders of the corporation must be effected at a duly called annual or special meeting of stockholders of the corporation and may not be effected by any consent in writing by such stockholders. Meetings of stockholders may be held within or without the State of Delaware, when and as the bylaws (as amended from time to time) of the corporation may provide. Election of directors need not be by written ballot unless the bylaws of the corporation so provide. Section 5.2 First Annual Meeting. The first Annual Meeting of the stockholders of the corporation shall take place on a date designated by the board of directors of the corporation which shall in no event be more than twelve (12) months after the effective date of the merger of the Debtor with and into the corporation. Section 5.3 Inspection Rights. The books of the corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the bylaws of the corporation. Stockholders shall have the right to inspect the books and records of the corporation to the extent and in the manner provided by Delaware law, subject to reasonable restrictions as may be determined by the board of directors or the officers of the corporation, from time to time or with respect to any request for such inspection. ARTICLE VI DIRECTORS Section 6.1 Number. The number of directors constituting the initial board of directors shall be nine (9); provided, that until the entire initial board of directors has been designated as described in Section 6.2, the initial number of directors shall be two (2). Thereafter, the number of directors constituting the entire board of directors shall be not less than seven (7) nor more than fifteen (15), with the specific number of directors within such minimum and maximum to be authorized from time to time by, and only by, resolution duly adopted by the affirmative vote of a majority of the board of directors. Section 6.2 Designation; Classification. All of the initial directors shall be designated and classified by those persons entitled to designate directors pursuant to the Plan and such designations and classifications shall be set forth in the Bankruptcy Court's order confirming the Plan. The board of directors shall be divided into three (3) classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as possible, of one-third of the total number of directors then constituting the entire board of directors. According to the provisions of the Plan, the two initial directors to be designated by the Debtor shall be as follows: 3 Susan M. Stanton 425 E. 73rd Terrace Kansas City, MO 64131 David Stanley 2300 Main St. P.O. Box 419466 Kansas City, MO 64141-0466 The term of the initial Class I directors shall expire at the annual stockholders' meeting in 1998, the term of the initial Class II directors shall expire at the annual stockholders' meeting in 1999, and the term of the initial Class III directors shall expire at the annual stockholders' meeting in 2000. At each annual stockholders' meeting beginning with the annual stockholders' meeting in 1998, directors elected to succeed the directors whose terms expire at such meeting shall be elected for a full three-year term. If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain or attain (as nearly as possible), the equality of the number of directors in each class. Whenever the number of directors is increased, each newly created directorship shall be filled by the board of directors acting by the affirmative vote of the majority of the directors then in office. The term of each additional director shall expire upon the expiration of the term of office of the class for which such director has been chosen. In no case shall a decrease in the number of directors shorten the term of any incumbent director. A director shall hold office until the annual meeting for the year in which such director's term expires and until a successor shall be duly elected and qualified, or until such director's earlier death, resignation or removal. Any vacancies existing on the board of directors for any reason shall be filled only by the board of directors, acting by the affirmative vote of a majority of the directors then in office. The term of a director elected to fill a vacancy shall expire upon the expiration of the term of office of the class in which such vacancy occurred. ARTICLE VII REMOVAL OF DIRECTORS As provided in Section 141 of the Delaware General Corporation Law, (i) any director, or the entire board of directors, may be removed from office at any time, but only for cause, by the affirmative vote of the holders of record of outstanding shares representing at least a majority of the voting power of all the shares of capital stock of the corporation then entitled to vote generally in the election of directors, voting together as a single class, and (ii) to the extent permitted by law, any director may be removed from office at any time, but only for cause, by the affirmative vote of a majority of the entire board of directors. 4 ARTICLE VIII INDEMNIFICATION; INSURANCE The directors and officers of the corporation shall be indemnified to the maximum extent permitted by law. Without limiting the foregoing, each person who was or is made a party or is threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the corporation, or is or was serving, at the request of the corporation, as a director, officer, employee, fiduciary or agent of another corporation or of a partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless by the corporation, to the fullest extent which it is empowered to do so by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than said law permitted the corporation to provide prior to such amendment), against all expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such proceeding, including attorneys' fees, and such indemnification shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in the bylaws of the corporation, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by the board of directors of the corporation. Expenses incurred by a director or officer of the corporation in defending a civil or criminal action, suit or proceeding shall be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it is ultimately determined that the director or officer is not entitled to be indemnified by the corporation as authorized by the Delaware General Corporation Law. The foregoing right of indemnification and advancement of expenses shall be a contract right and shall in no way be exclusive of any other rights of indemnification and advancement of expenses to which any such director or officer may be entitled by law, agreement, vote of stockholders or of disinterested directors or otherwise. All rights of indemnification and advancement of expenses hereunder shall survive any repeal or modification of this Article VIII as to any set of facts or proceeding then existing, shall continue as to a person who has ceased to be an officer or director and shall inure to the benefit of the heirs, executors and administrators of such a director or officer. The procedures with respect to indemnification shall be set forth in the bylaws of the corporation. The corporation may maintain insurance, at its expense, to protect itself and any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. 5 ARTICLE IX LIMITATION OF PERSONAL LIABILITY OF DIRECTORS A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Law as presently in effect or as the same may hereafter be amended. ARTICLE X BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS The Corporation expressly elects to be governed by Section 203 of the Delaware General Corporation Law. ARTICLE XI AMENDMENT OF BYLAWS, ETC. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the board of directors is hereby authorized to make, amend, alter or repeal the bylaws of the corporation in any manner not inconsistent with the laws of the State of Delaware, subject to the power of the stockholders to make, amend, alter or repeal the bylaws of the corporation. ARTICLE XII AMENDMENT OF CERTIFICATE OF INCORPORATION The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation. ARTICLE XIII INCORPORATOR The name and mailing address of the incorporator is as follows: Name of Incorporator Mailing Address Gary D. Gilson c/o Blackwell Sanders Matheny Weary & Lombardi LLP 2300 Main Street, Suite 1100 Kansas City, Missouri 64108 6 ARTICLE XIV POWER OF INCORPORATOR The power of the incorporator is to terminate upon the filing of this Certificate of Incorporation. IN TESTIMONY WHEREOF, the undersigned has hereunto subscribed his name this 12th day of November, 1997. /s/ Gary D. Gilson ------------------------------------------ Incorporator EX-4 4 BYLAWS 1 BYLAWS OF PAYLESS CASHWAYS, INC. ARTICLE I OFFICES Section 1. Registered Office. The registered office of the corporation in the State of Delaware shall be located at The Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of the corporation's registered agent at such address shall be The Corporation Trust Company. The registered office and/or registered agent of the corporation may be changed from time to time by action of the board of directors. Section 2. Other Offices. The corporation may have additional offices at such other places, both within and without the State of Delaware, as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. Annual Meetings. Annual meetings of stockholders for the election of directors, and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Delaware, and at such time and date as the board of directors, by resolution, shall determine and as set forth in the notice of the meeting. If the board of directors fails so to determine the time, date and place of meeting, the annual meeting of stockholders shall be held at the principal executive office of the corporation on the first Tuesday in April. If the date of the annual meeting shall fall upon a legal holiday, the meeting shall be held on the next succeeding business day. Section 2. Special Meetings. Except as otherwise required by law, special meetings of the stockholders for any purpose or purposes may be called by the Chairman or Chief Executive Officer, by resolution of the board of directors adopted by the affirmative vote of a majority of the directors or by the written request of the holders of record representing at least 25% of the voting power of all of the shares of the corporation entitled to vote on the issue or issues to be presented to the meeting. Section 3. Place of Meetings. The board of directors may designate any place, either within or without the State of Delaware, as the place of meeting for any annual meeting. The person or persons calling a special meeting may designate any place, either within or without the State of Delaware, as the place of meeting for such special meeting. If no designation is made, 2 the place of the annual or special meeting shall be in the State of the corporation's principal executive offices. Section 4. Notice. Whenever stockholders are required or permitted to take action at a meeting, written or printed notice stating the place, date and time of such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. All such notices shall be delivered, either personally or by mail, by or at the direction of the board of directors, the chief executive officer or the secretary. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the corporation. Attendance of a stockholder at a meeting shall constitute a waiver of notice of such meeting, except when the stockholder attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Section 5. Stockholders List. The officer having charge of the stock ledger of the corporation shall make, at least ten days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. Section 6. Quorum. The holders of a majority of the outstanding shares of capital stock of the corporation, present in person or represented by proxy at a meeting of the stockholders and entitled to vote thereat, shall constitute a quorum at such meeting, except as otherwise provided by statute or by the certificate of incorporation. If a quorum is not present, the holders of a majority of the shares present in person or represented by proxy at the meeting and entitled to vote thereat may adjourn the meeting to another time and/or place, without further notice to the stockholders other than an announcement at such meeting until holders of the number of shares required to constitute a quorum shall be present in person or by proxy. When a quorum is once present to commence a meeting of stockholders, it is not broken by the subsequent withdrawal of any stockholders or their proxies. Section 7. Adjourned Meetings. When a meeting is adjourned to another time and/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. The corporation may transact any business at the adjourned meeting which might have been transacted at the original meeting. If the adjournment is for more than thirty days or if after the adjournment a new record date is fixed 3 for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 8. Vote Required. When a quorum is present, the affirmative vote of a majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which, by express provisions of an applicable law, the certificate of incorporation or these bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such question. Section 9. Voting Rights. Except as otherwise provided by the Delaware General Corporation Law or by the certificate of incorporation, and subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock having voting power held by such stockholder. Whenever any corporate action is to be taken by a vote of the stockholders, it shall, except as otherwise required by law or the certificate of incorporation, be authorized by a plurality of the votes cast at a meeting of stockholders by the holders of shares entitled to vote thereon. Section 10. Proxies. Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for him or her by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. Any proxy is suspended when the person executing the proxy is present at a meeting of stockholders and elects to vote, except that when such proxy is coupled with an interest and the fact of the interest appears on the face of the proxy, the agent named in the proxy shall have all voting and other rights referred to in the proxy, notwithstanding the presence of the person executing the proxy. At each meeting of the stockholders, and before any voting commences, all proxies filed at or before the meeting shall be submitted to and examined by the secretary of the corporation or a person designated by the secretary, and no shares may be represented or voted under a proxy that has been found to be invalid or irregular. Section 11. Proposed Business for Annual Meetings. Except as may otherwise be required by applicable law or regulation or be expressly authorized by the entire board of directors, a stockholder may make a nomination or nominations for director of the corporation at an annual meeting of stockholders or may bring up any other matter for consideration and action by the stockholders at an annual meeting of stockholders, only if the provisions of subsections A, B, C and D hereto shall have been satisfied. If such provisions shall not have been satisfied, any nomination sought to be made or other business sought to be presented by a stockholder for consideration and action by the stockholders at such a meeting shall be deemed not properly brought before the meeting, shall be ruled by the chairman of the meeting to be out of order, and shall not be presented or acted upon at the meeting. 4 A. The stockholder must be a stockholder of record on the record date for such annual meeting, must continue to be a stockholder of record at the time of such meeting, and must be entitled to vote thereat. B. The stockholder must deliver or cause to be delivered a written notice to the secretary of the corporation. Such notice must be received by the secretary no less than sixty days prior to the first anniversary of the previous year's annual meeting; provided, however, that if the date of the annual meeting has been changed by more than thirty days from the date of the previous year's annual meeting, such notice must be received by the secretary not later than ten days following the date on which public announcement of the date of such meeting is first made. The notice shall specify (a) the name and address of the stockholder as they appear on the books of the corporation, (b) the number of shares of the corporation which are beneficially owned by the stockholder; (c) any material interest of the stockholder in the proposed business described in the notice; (d) if such business is a nomination for director, each nomination sought to be made, together with the reasons for each nomination, a description of the qualifications and business or professional experience of each proposed nominee and a statement signed by each nominee indicating his or her willingness to serve if elected, and disclosing the information about him or her that is required by the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations promulgated thereunder to be disclosed in the proxy materials for the meeting involved if he or she were a nominee of the corporation for election as one of its directors; (e) if such business is other than a nomination for director, the nature of the business, the reasons why it is sought to be raised and submitted for a vote of the stockholders and if and why it is deemed by the stockholder to be beneficial to the corporation, and (f) if so requested by the corporation, all other information that would be required to be filed with the Securities and Exchange Commission if, with respect to the business proposed to be brought before the meeting, the person proposing such business was a participant in a solicitation subject to Section 14 of the 1934 Act. C. Notwithstanding satisfaction of the provisions of subsection A and subsection B, the proposed business described in the notice may be deemed not to be properly brought before the meeting if, pursuant to state law or to any rule or regulation of the Securities and Exchange Commission, it was offered as a stockholder proposal and was omitted from the notice of, and proxy material for, the meeting (or any supplement thereto) authorized by the board of directors. D. In the event such notice is timely given pursuant to subsection B and the business described therein is not disqualified pursuant to subsection C, such business may be presented by, and only by, the stockholder who shall have given the notice required by subsection B or a representative of such stockholder who is qualified 5 under the law of the State of Delaware to present the proposal on the stockholder's behalf at the meeting. ARTICLE III DIRECTORS Section 1. General Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of directors. Section 2. Number, Election and Term of Office. Upon the effective date of these bylaws, the number of directors which shall constitute the board of directors shall be nine. Thereafter, the number of directors which shall constitute the board of directors shall be established from time to time by, and only by, resolution duly adopted by a majority of the directors then constituting the entire board of directors. Except as otherwise provided in the certificate of incorporation or in Section 3 of this Article III, a director shall be elected at an annual meeting of the stockholders by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors. A director's term of office shall be as provided in the certificate of incorporation and, to the extent applicable, the order of the United States Bankruptcy Court for the Western District of Missouri confirming the First Amended Plan of Reorganization of Payless Cashways, Inc., an Iowa corporation, as a debtor and a debtor-in-possession in a Chapter 11 proceeding in such Court. A director shall hold office until the annual meeting for the year in which such director's term expires and until a successor shall be duly elected and qualified, or until such director's earlier death, resignation, disqualification or removal as hereinafter provided. Directors need not be stockholders of the corporation. Section 3. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled only by the board of directors and in the manner provided in the certificate of incorporation. The term of office of a director so chosen shall be as provided in the certificate of incorporation. Each director so chosen shall hold office until the annual meeting for the year in which such director's term expires and until a successor shall be duly elected and qualified, or until such director's earlier death, resignation, disqualification or removal as hereinafter provided. Section 4. Removal and Resignation. Any director or the entire board of directors may be removed at such time and in such manner as provided in the certificate of incorporation. Any director who is also an officer of the corporation who resigns his or her position as an officer of the corporation, or is terminated, disqualified or removed as an officer of the corporation, or otherwise ceases to serve in such capacity, shall also be deemed to have resigned as a director of the corporation. Any director may resign at any time upon written notice to the corporation. Section 5. Regular Meetings. The annual meeting of each newly elected board of directors shall be held without notice other than this bylaw immediately after, and at the same place as, the annual meeting of stockholders. Other regular meetings of the board of directors 6 may be held without notice at such time and at such place, either within or without the State of Delaware, as shall from time to time be determined by resolution of the board of directors. Section 6. Special Meetings. Special meetings of the board of directors may be called by or at the request of the Chairman, Chief Executive Officer, President or a majority of the board of directors. The person or persons so calling such special meeting shall designate the time and place for the holding of such meeting. The place so designated may be any place in the United States, either within or without the State of Delaware. Notice of any special meeting shall be given at least two days prior to the date fixed for such meeting by written notice delivered personally, by mail, or by a nationally recognized overnight delivery service to each director at his business address, or by telex or telecopy. If notice is given by mail, such notice shall be deemed to be delivered three days after such notice is deposited with the United States mail properly addressed, postage prepaid. If notice is given by overnight delivery service, such notice shall be deemed delivered one day after such notice is delivered during business hours to such overnight delivery service properly addressed, postage prepaid. If notice is given personally or by telex or telecopy, such notice shall be deemed to be delivered when received. Neither the business to be transacted at nor the purpose of any special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Section 7. Quorum, Required Vote and Adjournment. A majority of the total number of directors then in office shall constitute a quorum for the transaction of business at any meeting of the board of directors. Except as otherwise provided by the certificate of incorporation, the vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. A majority of the directors present, whether or not a quorum is present, may adjourn any regular or special meeting of the board of directors to another time and place. Notice need not be given of the adjourned meeting if the time and place to which the meeting is adjourned are announced at the meeting at which adjournment is taken, and at the adjourned meeting any business may be transacted that might have been transacted at the original meeting. Section 8. Committees. The board of directors may, by resolution or resolutions adopted by a majority of the whole board, designate an audit committee, a compensation committee, and a corporate governance and nominating committee, each such committee to consist of one or more directors of the corporation. The audit committee shall monitor and review the adequacy of financial, operating and system controls, financial reporting, compliance with legal, ethical and regulatory requirements, and the performance of the external and internal auditors, serving as the conduit for communication between the board of directors and external and internal auditors. The audit committee shall recommend to the board of directors the independent public accountants to conduct the annual examination of financial statements and shall also review the proposed scope and fees of the examination, as well as its results, and any significant, non-audit services and fees. The compensation committee shall review the compensation (wages, salaries, supplemental 7 compensation and benefits) of the executive officers of the corporation, including approval of compensation and benefit policies, approval of direct and indirect executive officer compensation, administration of stock programs, and oversight of the corporation's executive development plan. The compensation committee shall make recommendations to the board of directors regarding compensation and benefits for directors. The corporate governance and nominating committee shall review the size, composition and effectiveness of the board of directors, including retention, tenure and retirement policies, criteria for selection of nominees to the board of directors, qualifications of candidates, membership and structure of board committees, and developments in corporate governance. In addition to the committees specifically provided for in these bylaws, the board of directors of the corporation, by resolution or resolutions adopted by a majority of the whole board of directors, may designate any other committees, each such committee to consist of one or more of the directors of the corporation. To the extent provided in such resolution or resolutions, each such committee shall have and may exercise all of the authority of the board of directors in the management of the corporation. Notwithstanding the foregoing, no committee established hereunder shall have the power or authority to (a) approve, adopt or recommend to the stockholders any action or matter expressly required by the Delaware General Corporation Law to be submitted to the stockholders for approval, (b) amend the certificate of incorporation or adopt, amend or repeal any bylaw of the corporation, (c) authorize dividends or other distributions, (d) fill vacancies on the board of directors, (e) adopt an agreement of merger or consolidation under Section 251 or 252 of the Delaware General Corporation Law or a certificate of ownership and merger pursuant to Section 253 of the Delaware General Corporation Law; (f) recommend to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets or recommend to the stockholders a dissolution of the corporation or a revocation of a dissolution of the corporation, (g) authorize or approve a reacquisition of shares, except according to a formula or method prescribed by the board of directors, and (h) authorize or approve the issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except that the board of directors may authorize a committee or a senior executive officer of the corporation to do so within limits specifically prescribed by the board of directors. The designation of any such committee and the delegation thereto of authority shall not operate to relieve the board of directors, or any member thereof, of any responsibility imposed upon the board or any director by law. The board of directors shall elect the members of any such committee, which members shall serve at the pleasure of the board. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. Section 9. Committee Rules. Each committee of the board of directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the board of directors designating such committee. Unless 8 otherwise provided in such a resolution, a majority of the members of the committee shall constitute a quorum. In the event that a member and that member's alternate, if alternates are designated by the board of directors as provided in Section 8 of this Article III, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member. Each committee shall keep regular minutes of its proceedings, which minutes shall be recorded in the minute book of the corporation. The secretary or an assistant secretary of the corporation may act as secretary for any committee if the committee so requests. Section 10. Lead Director; Chairman. In an effort to enhance efficiency, independence and informed decision-making, the board of directors may designate a Lead Director when the Chairman of the Board and the Chief Executive Officer are the same person, who shall perform a number of tasks, including: acting as Chairman of the Board when the Chairman/CEO is unable or it is inadvisable for the Chairman/CEO to chair the Board; acting as Chairman of the Corporate Governance and Nominating Committee; convening meetings of the independent directors'; coordinating and communicating CEO performance evaluations; and representing independent directors in communications with stockholders, as appropriate. When the Chief Executive Officer is not the Chairman, the board of directors may select one of its number to serve as Chairman. The Chairman of the Board shall preside at all meetings of stockholders and of the board of directors and shall have and perform such other duties as may be assigned by the board of directors Section 11. Meetings of Independent Directors. The independent directors of the corporation shall meet at least annually to discuss significant corporate governance matters, executive review, management succession and other items. Section 12. Communications Equipment. Members of the board of directors or any committee thereof may participate in and act at any meeting of such board or committee through the use of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting. Section 13. Presumption of Assent. A director of the corporation who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be presumed to have assented to such action unless his or her dissent shall be entered in the minutes of the meeting or unless such director shall file his or her written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered or certified mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 9 Section 14. Action by Written Consent. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing. Such written consents shall be filed with the minutes of proceedings of the board or committee. Section 15. Compensation. The board of directors shall fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. Any Lead Director and any director serving as the chairman of a committee may receive additional compensation for serving as such. ARTICLE IV OFFICERS Section 1. Number. The officers of the corporation shall be a Chief Executive Officer, a President, one or more Vice Presidents, a Treasurer and a Secretary, all of whom shall be elected by the board of directors and shall hold office until their successors are elected and qualified. In addition, the board of directors may elect such Assistant Secretaries and Assistant Treasurers as it may deem proper. The board of directors may appoint such other officers and agents as it may deem advisable, 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. Any number of offices may be held by the same person except that neither the chairman of the board nor the chief executive officer shall also hold the office of secretary. In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable, except that the offices of chief executive officer and secretary shall be filled as expeditiously as possible. Section 2. Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at its first meeting held after each annual meeting of stockholders or as soon thereafter as may be practicable. Vacancies may be filled or new offices created and filled at any meeting of the board of directors. Each officer shall hold office until a successor is duly elected and qualified or until such officer's earlier death, resignation, disqualification or removal as hereinafter provided. Section 3. Removal. Any officer or agent elected by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the corporation would be served thereby. 10 Section 4. Vacancies. Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term. Section 5. Compensation. Compensation of all executive officers shall be fixed by the board of directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the corporation. Section 6. The Chief Executive Officer. The Chief Executive Officer shall have general charge and management of the business , affairs, administration and operations of the corporation, shall carry out such duties as are delegated by the board of directors, shall see that all orders and resolutions of the board of directors are carried out, shall have power to execute all contracts and agreements authorized by the board of directors, shall make reports to the board of directors and stockholders, and shall perform such other duties as are incident to the office or are properly required by the board of directors. The Chief Executive Officer shall be responsible for the direction and supervision of all personnel within his or her appointive powers and shall also have the power to discipline or discharge such personnel. The Chief Executive Officer shall sit with the board of directors in deliberation upon all matters pertaining to the general business and policies of the corporation. Section 7. President. The President shall have such powers and shall perform such duties as shall be assigned to him or her by the board of directors or the Chairman as appropriate. Except as the board of directors shall authorize execution thereof in some other manner, the President shall execute bonds, mortgages and other contracts on behalf of the corporation. Section 8. Vice Presidents. Each Vice President shall have such powers and shall perform such duties as shall be assigned to him or her by the board of directors or Chief Executive Officer, as appropriate. Section 9. Treasurer. The Treasurer shall be the custodian of all the corporate funds and securities and shall keep full and accurate account of receipts and disbursements in books belonging to the corporation, shall deposit all moneys and other valuables in the name and to the credit of the corporation in such depositaries as may be designated by the board of directors, shall disburse the funds of the corporation as may be ordered by the board of directors, or the Chairman, Chief Executive Officer or President, taking proper vouchers for such disbursement, and shall render to the board of directors at the regular meetings of the board of directors, or whenever they may request it, an account of all transactions as Treasurer and of the financial condition of the corporation. The Treasurer shall at all reasonable times exhibit the corporation's books and accounts to any director of the corporation upon application at the principal office of the corporation during business hours. The Treasurer shall have such other powers and shall perform such other duties as may from time to time be assigned to him or by her by the Chief Executive Officer or the board of directors, as appropriate. If required by the board of directors, the Treasurer shall give the corporation a bond for the faithful discharge of the Treasurer's duties in such amount and with such surety as the board shall prescribe. 11 Section 10. Secretary. The Secretary shall give, or cause to be given, notice of all meetings of stockholders and directors and all other notices required by law or by these bylaws, and in case of the absence or refusal or neglect so to do, any such notice may be given by any person thereunto directed by the Chairman, Chief Executive Officer, or President, or by the directors, upon whose request the meeting is called as provided in these bylaws. The Secretary shall be the custodian of, and shall make or cause to be made the proper entries in, the minute book of the corporation and such other books and records as the board of directors may direct. The Secretary shall be the custodian of the corporate seal for the corporation and shall affix or cause to be affixed such seal to such contracts and other instruments as the board of directors may direct and shall perform such other duties as may from time to time be assigned to him or her by the Chief Executive Officer or the board of directors, as appropriate. Section 11. Assistant Treasurers and Assistant Secretaries. Assistant Treasurers and Assistant Secretaries, if any, shall be appointed by the Chief Executive Officer and shall have such powers and shall perform such duties as shall be assigned to them, respectively, by the Chief Executive Officer or the board of directors, as appropriate. Section 12. Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these bylaws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the board of directors. Section 13. Absence or Disability of Officers. In the case of the absence or disability of any officer of the corporation and that of any person hereby authorized to act in such officer's place during such officer's absence or disability or for any other reason the board of directors may deem sufficient, the board of directors may by resolution delegate the powers and duties of such officer to any other officer, to any director, or to any other person whom it may select. ARTICLE V INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS Section 1. Procedure for Indemnification of Directors and Officers. Any indemnification of a director or officer of the corporation or advance of expenses under Article VIII of the certificate of incorporation shall be made promptly, and in any event within thirty days, upon the written request of the director or officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the corporation fails to respond within sixty days to a written request for indemnity, the corporation shall be deemed to have approved the request. If the corporation denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not made within thirty days, the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such person's costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation. It shall be a defense to any such action (other than an action 12 brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its board of directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the corporation (including its board of directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. Section 2. Article Not Exclusive. The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision or the certificate of incorporation, bylaw, agreement, vote of stockholders or disinterested directors or otherwise. Section 3. Employees and Agents. Persons who are not covered by the foregoing provisions of this Article V and who are or were employees or agents of the corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from time to time by the board of directors. Expenses (including attorneys' fees) incurred by employees and agents may be paid upon such terms and conditions, if any, as the board of directors deems appropriate; provided, that such expenses may only be paid by the corporation in advance of a proceeding's final disposition upon receipt of an undertaking by or on behalf of such employee or agent to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. Section 4. Contract Rights. The provisions of this Article V shall be deemed to be a contract right between the corporation and each director or officer who serves in any such capacity at any time while this Article V and the relevant provisions of the Delaware General Corporation Law or other applicable law are in effect, and any repeal or modification of this Article V or any such law shall not affect any rights or obligations then existing with respect to any state of facts or proceeding then existing. Section 5. Merger or Consolidation. For purposes of this Article V, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is a director, officer, employee or agent of such constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust 13 or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued. ARTICLE VI CERTIFICATES OF STOCK Section 1. Form. Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of, the corporation by the chief executive officer or a vice-president of the corporation and by the secretary or an assistant secretary of the corporation, certifying the number of shares of the corporation owned by such holder. The signature of any such chief executive officer, vice-president, secretary or assistant secretary may be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation, whether because of death, resignation or otherwise, before such certificate or certificates have been delivered by the corporation, such certificate or certificates may nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall be transferred on the books of the corporation only by the holder of record thereof or by such holder's attorney duly authorized in writing, upon surrender to the corporation of the certificate or certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty of the corporation to issue a new certificate or certificates and record the transaction on its books. The board of directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both, in connection with the transfer of any class or series of securities of the corporation. Section 2. Lost Certificates. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously issued by the corporation alleged to have been lost, stolen or destroyed, upon the making 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 or certificates, 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 certificates, or his or her legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate. 14 Section 3. Fixing a Record Date for Stockholder Meetings. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of the stockholders shall be the close of business on the next day preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. Section 4. Fixing a Record Date for Other Purposes. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto. Section 5. Registered Stockholders. Prior to the surrender to the corporation of the certificate or certificates for a share or shares of stock with a request to record the transfer of such share or shares, the corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications and otherwise to exercise all the rights and powers of an owner. The corporation 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. ARTICLE VII GENERAL PROVISIONS Section 1. Dividends. Dividends upon the capital stock of the corporation may be declared by the board of directors at any regular or special meeting, subject to and in the manner provided by law and the applicable provisions of the certificate of incorporation, if any. Dividends may be paid in cash, in property, or in shares of the capital stock. 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, think proper as a reserve or reserves to meet contingencies, to equalize dividends, to repair or maintain any property of the corporation, or to accomplish any other purpose, and the board of directors may modify or abolish any such reserve in the manner in which it was created. 15 Section 2. Checks, Drafts or Orders. All checks, drafts or other orders for the payment of money by or to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall from time to time be determined by resolution of the board of directors or a duly authorized committee thereof. In the absence thereof, the signature of the Chief Executive Officer shall suffice. Section 3. Contracts. The board of directors may authorize any officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. In the absence thereof, the signature of the Chief Executive Officer shall suffice. Section 4. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the board of directors. In the absence of a resolution by the board of directors, the fiscal year of the corporation shall end on the last Saturday in the month of November. Section 5. Corporate Seal. The board of directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation, the year of its incorporation and the words "Corporate Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced. Section 6. Voting Securities Owned by Corporation. Voting securities in any other corporation held by the corporation shall be voted by the chief executive officer, unless the board of directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution. Section 7. Section Headings. Section headings in these bylaws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein. Section 8. Inconsistent Provisions. In the event that any provision of these bylaws is or becomes inconsistent with any provision of the certificate of incorporation, the Delaware General Corporation Law or any other applicable law, the provision of these bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect. ARTICLE VIII AMENDMENTS These bylaws may be amended, altered, or repealed and new bylaws adopted in the manner provided in the certificate of incorporation. -----END PRIVACY-ENHANCED MESSAGE-----