AMERICAN STANDARD INC.
AMENDED BY-LAWS
As Adopted on May 4, 1995,
as Amended on December 5, 1996,
as Amended on March 24, 1997, effective May 1, 1997,
and as Amended on March 5, 1998
AMERICAN STANDARD INC.
AMENDED BY-LAWS
TABLE OF CONTENTS
PAGE
ARTICLE I
STOCKHOLDERS.................................1
Section 1.1. Annual Meeting................................................ 1
Section 1.2. Special Meetings.............................................. 1
Section 1.3. Notice of Meetings; Waiver.................................... 1
Section 1.4. Quorum........................................................ 2
Section 1.5. Voting........................................................ 2
Section 1.6. Voting by Ballot.............................................. 3
Section 1.7. Adjournment................................................... 3
Section 1.8. Proxies....................................................... 3
Section 1.9. Organization; Procedure....................................... 4
Section 1.10. Stockholder Proposals and Nominations
of Directors ................................. 4
Section 1.11. [Reserved].................................................... 4
Section 1.12. [Reserved].................................................... 4
Section 1.13. Consent of Stockholders in
Lieu of Meeting............................................. 4
ARTICLE II
BOARD OF DIRECTORS............................. 5
Section 2.1. General Powers................................................ 5
Section 2.2. Number and Term of Office..................................... 5
Section 2.3. Election of Directors......................................... 6
Section 2.4. Annual and Regular Meetings................................... 6
Section 2.5. Special Meetings; Notice...................................... 7
Section 2.6. Quorum; Voting................................................ 7
Section 2.7. Adjournment................................................... 7
Section 2.8. Action Without a Meeting...................................... 7
Section 2.9. Organization ................................................. 8
Section 2.10. Regulations; Manner of Acting................................. 8
Section 2.11. Action by Telephonic Communications........................... 8
Section 2.12. Resignations.................................................. 8
Section 2.13. Removal of Directors.......................................... 8
Section 2.14. Vacancies and Newly Created
Directorships................................... 9
Section 2.15. Compensation.................................................. 9
Section 2.16. Reliance on Accounts and Reports, etc......................... 9
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES............. 9
Section 3.1. How Constituted............................................... 9
Section 3.2. Powers....................................................... 10
Section 3.3. Proceedings.................................................. 11
Section 3.4. Quorum and Manner of Acting.................................. 11
Section 3.5. Action by Telephonic Communications.......................... 11
Section 3.6. Absent or Disqualified Members............................... 11
Section 3.7. Resignations................................................. 11
Section 3.8. Removal...................................................... 12
Section 3.9. Vacancies.................................................... 12
ARTICLE IV
OFFICERS............................................ 12
Section 4.1. Number....................................................... 12
Section 4.2. Election..................................................... 12
Section 4.3. Salaries..................................................... 12
Section 4.4. Removal and Resignation; Vacancies........................... 13
Section 4.5. Authority and Duties of Officers............................. 13
Section 4.6. The President................................................ 13
Section 4.7. Vice Presidents.............................................. 14
Section 4.8. The Secretary................................................ 14
Section 4.9. The Treasurer................................................ 15
Section 4.10. Additional Officers.......................................... 16
Section 4.11. Security..................................................... 16
ARTICLE V
CAPITAL STOCK........................................ 16
Section 5.1. Certificates of Stock, Uncertificated
Shares......................................... 16
Section 5.2. Signatures; Facsimile........................................ 17
Section 5.3. Lost, Stolen or Destroyed Certificates....................... 17
Section 5.4. Transfer of Stock............................................ 17
Section 5.5. Record Date.................................................. 18
Section 5.6. Registered Stockholders...................................... 19
Section 5.7. Transfer Agent and Registrar................................. 19
ARTICLE VI
INDEMNIFICATION....................................... 19
Section 6.1. Nature of Indemnity.......................................... 19
Section 6.2. Successful Defense........................................... 20
Section 6.3. Determination That Indemnification
is Proper...................................... 20
Section 6.4. Advance Payment of Expenses.................................. 21
Section 6.5. Procedure for Indemnification of
Directors and Officers......................... 21
Section 6.6. Survival; Preservation of Other Rights....................... 22
Section 6.7. Insurance.................................................... 23
Section 6.8. Severability................................................. 23
ARTICLE VII
OFFICES............................................... 23
Section 7.1. Registered Office............................................ 23
Section 7.2. Other Offices................................................ 23
ARTICLE VIII
GENERAL PROVISIONS.................................... 24
Section 8.1. Dividends.................................................... 24
Section 8.2. Reserves..................................................... 24
Section 8.3. Execution of Instruments..................................... 24
Section 8.4. Corporate Indebtedness....................................... 24
Section 8.5. Deposits..................................................... 25
Section 8.6. Checks....................................................... 25
Section 8.7. Sale, Transfer, etc. of Securities........................... 25
Section 8.8. Voting as Stockholder........................................ 25
Section 8.9. Fiscal Year.................................................. 26
Section 8.10. Seal......................................................... 26
Section 8.11. Books and Records; Inspection................................ 26
ARTICLE IX
AMENDMENT OF AMENDED BY-LAWS.......................... 26
Section 9.1. Amendment.................................................... 26
ARTICLE X
CONSTRUCTION.......................................... 27
Section 10.1. Construction................................................. 27
AMERICAN STANDARD INC.
AMENDED BY-LAWS
As adopted on May 4, 1995,
as amended on December 5, 1996,
as amended on March 24, 1997 (effective May 1, 1997),
and as amended on March 5, 1998
ARTICLE I
STOCKHOLDERS
Section 1.1. Annual Meetings. The annual meeting of the stockholders of the
Corporation for the election of Directors and for the transaction of such other
business as properly may come before such meeting shall be held at such place,
either within or without the State of Delaware on the first Thursday in May (or,
if such day is a legal holiday, then on the next succeeding business day),
following the annual meeting of stockholders of American Standard Companies
Inc., or at such other date and time as may be fixed from time to time by
resolution of the Board of Directors and set forth in the notice or waiver of
notice of the meeting. [Sections 211(a), (b).]<F1>
Section 1.2. Special Meetings. Special meetings of the stockholders may be
called at any time by the (i) Chief Executive Officer or (ii) by the Board of
Directors pursuant to a resolution adopted by a majority of the total number of
authorized Directors or (iii) [by a majority of the holders of the shares of
stock of the Corporation then outstanding and entitled to vote]. Special
meetings of the stockholders shall be held at such places, within or without the
State of Delaware, as shall be specified in the respective notices or waivers of
notice thereof. [Section 211(d).]
- --------
<F1> 1. Citations are to the General Corporation Law of the State of Delaware
as in effect on May 4, 1995 (the "GCL"), and are inserted for reference
only, and do not constitute a part of the Amended By-Laws.
Section 1.3. Notice of Meetings; Waiver. The Secretary, Acting Secretary or
any Assistant Secretary shall cause written notice of the place, date and hour
of each meeting of the stockholders, and, in the case of a special meeting, the
purpose or purposes for which such meeting is called, to be given personally or
by mail, not less than ten nor more than sixty days prior to the meeting, to
each stockholder of record entitled to vote at such meeting. If such notice is
mailed, it shall be deemed to have been given to a stockholder when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the record of stockholders of the Corporation, or, if
he shall have filed with the Secretary or Acting or Assistant Secretary of the
Corporation a written request that notices to him be mailed to some other
address, then directed to him at such other address. Such further notice shall
be given as may be required by law.
No notice of any meeting of stockholders need be given to any stockholder
who submits a signed waiver of notice, whether before or after the meeting.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders need be specified in a written waiver of
notice. The attendance of any stockholder at a meeting of stockholders shall
constitute a waiver of notice of such meeting, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting is
not lawfully called or convened. [Sections 222, 229.]
Section 1.4. Quorum. Except as otherwise required by law or by the Restated
Certificate of Incorporation, the presence in person or by proxy of the holders
of record of a majority of the shares entitled to vote at a meeting of
stockholders shall constitute a quorum for the transaction of business at such
meeting. [Section 216.]
Section 1.5. Voting. If, pursuant to Section 5.5 of these
Amended By-Laws, a record date has been fixed, every holder of record of shares
entitled to vote at a meeting of stockholders shall be entitled to one vote for
each share outstanding in his name on the books of the Corporation at the close
of business on such record date, provided, however, that the certificate of
designation pertaining to any series of the Corporation's preferred stock may
provide for a greater number of votes per share of such series. If no record
date has been fixed, then every holder of record of shares entitled to vote at a
meeting of stockholders shall be entitled to one vote (subject to the same
proviso as set forth in the immediately preceding sentence) for each share of
stock standing in his name on the books of the Corporation at the close of
business on the day next preceding the day on which notice of the meeting 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. Except as otherwise required by
law, by the Restated Certificate of Incorporation or by these Amended By-Laws,
the vote of a majority of the shares represented in person or by proxy at any
meeting at which a quorum is present shall be sufficient for the transaction of
any business at such meeting. [Sections 212(a), 216.]
Section 1.6. Voting by Ballot. No vote of the stockholders need be taken by
written ballot unless otherwise required by law. Any vote which need not be
taken by ballot may be conducted in any manner approved by the meeting.
Section 1.7. Adjournment. If a quorum is not present at any meeting of the
stockholders, the stockholders present in person or by proxy shall have the
power to adjourn any such meeting from time to time until a quorum is present.
Notice of any adjourned meeting of the stockholders of the Corporation need not
be given if the place, date and hour thereof are announced at the meeting at
which the adjournment is taken, provided, however, that if the adjournment is
for more than thirty days, or if after the adjournment a new record date for the
adjourned meeting is fixed pursuant to Section 5.5 of these Amended By-Laws, a
notice of the adjourned meeting, conforming to the requirements of Section 1.3
hereof, shall be given to each stockholder of record entitled to vote at such
meeting. At any adjourned meeting at which a quorum is present, any business may
be transacted that might have been transacted on the original date of the
meeting. [Section 222(c).]
Section 1.8. Proxies. Any stockholder entitled to vote at any meeting of
the stockholders or to express consent to or dissent from corporate action
without a meeting may authorize another person or persons to vote at any such
meeting and express such consent or dissent for him by proxy. A stockholder may
authorize a valid proxy by executing a written instrument signed by such
stockholder, or by causing his or her signature to be affixed to such writing by
any reasonable means including, but not limited to, by facsimile signature, or
by transmitting or authorizing the transmission of a telegram, cablegram or
other means of electronic transmission to the person designated as the holder of
the proxy, a proxy solicitation firm or a like authorized agent. No such proxy
shall be voted or acted upon after the expiration of three years from the date
of such proxy, unless such proxy provides for a longer period. Every proxy shall
be revocable at the pleasure of the stockholder executing it, except in those
cases where applicable law provides that a proxy shall be irrevocable. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by filing another duly executed proxy bearing a later date with the
Secretary. Proxies by telegram, cablegram or other electronic transmission must
either set forth or be submitted with information from which it can be
determined that the telegram, cablegram or other electronic transmission was
authorized by the stockholder. Any copy, facsimile telecommunication or other
reliable reproduction of a writing or transmission created pursuant to this
section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission. [Sections 212(b), (c), (d), (e).]
Section 1.9. Organization; Procedure. At every meeting of stockholders the
presiding officer shall be the President or, in the event of his absence or
disability, any Vice President or a presiding officer chosen by a majority of
the stockholders present in person or by proxy. The Secretary or Acting
Secretary, or in the event of his absence or disability, the Assistant
Secretary, if any, or if there be no Assistant Secretary, in the absence of the
Secretary or Acting Secretary, an appointee of the presiding officer, shall act
as Secretary of the meeting. The order of business and all other matters of
procedure at every meeting of stockholders may be determined by such presiding
officer.
Section 1.10. Stockholder Proposals and Nominations of Directors.
Nominations for election to the Board of Directors of the Corporation at a
meeting of the stockholders may be made by the Board of Directors, or on behalf
of the Board of Directors by a Nominating Committee appointed by the Board of
Directors, or by any stockholder of the Corporation entitled to vote for the
election of Directors at such meeting.
Section 1.11. [Reserved] Inspectors of Elections. [Sections 231(a), (b),
(d).]
Section 1.12. [Reserved] Opening and Closing of Polls. [Section 231(c).]
Section 1.13. Consent of Stockholders in Lieu of Meeting. Any action
required or permitted to be taken by the stockholders of the Corporation may be
taken without a meeting, without prior notice and without a vote, if a consent
or consents in writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted and shall be
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or to an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
Every written consent permitted by this section shall bear the date of
signature of each stockholder who signs the consent and no written consent shall
be effective to take the corporate action referred to therein unless, within
sixty days of the earliest dated consent delivered in the manner required by law
to the Corporation, written consents signed by a sufficient number of holders to
take action are delivered to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of business, or an officer
or agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not so consented in writing. [Section 228(a), (c), (d).]
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. General Powers. Except as may otherwise be provided by law, by
the Restated Certificate of Incorporation or by these Amended By-Laws, the
business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors which may exercise all such powers of the
Corporation. [Section 141(a).]
Section 2.2. Number and Term of Office. The number of Directors
constituting the entire Board of Directors shall be nine (9), which number may
be modified from time to time by resolution of the Board of Directors, but in no
event shall the number of Directors be less than three (3) or greater than
twenty-one (21). Each Director (whenever elected) shall hold office until his
successor has been duly elected and qualified, or until his earlier death,
resignation or removal. If the number of Directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain or attain a
number of Directors in each class as nearly equal as reasonably possible, but no
decrease in the number of Directors may shorten the term of any incumbent
Director. Section 2.3. Election of Directors. The members of the Board of
Directors elected by the holders of the Common Stock of the Corporation shall be
divided at the annual meeting of stockholders to be held in 1995 into three
classes, designated Classes I, II and III, which shall be as nearly equal in
number as possible. At the annual meeting of stockholders in 1995, Directors of
Class I shall be elected to hold office for a term expiring at the annual
meeting of stockholders to be held in 1996, Directors of Class II shall be
elected to hold office for a term expiring at the annual meeting of stockholders
to be held in 1997 and Directors of Class III shall be elected to hold office
for a term expiring at the annual meeting of stockholders to be held in 1998. At
each succeeding annual meeting of stockholders following such initial
classification and election, the respective successors of Directors whose terms
are expiring shall be elected for terms expiring at the annual meeting of
stockholders held in the third succeeding year. If the annual meeting of
stockholders for the election of Directors is not held on the date designated
therefor, the Directors shall cause the meeting to be held as soon thereafter as
convenient. At each meeting of the stockholders for the election of Directors,
provided a quorum is present, the Directors shall be elected by a plurality of
the votes validly cast in such election. Not-withstanding the foregoing, the
election, term, removal and filling of vacancies with respect to Directors
elected separately by the holders of one or more series of Preferred Stock of
the Corporation shall not be governed by this Article II, but rather shall be as
provided for in the resolutions adopted by the Board of Directors creating and
establishing such series of Preferred Stock. [Sections 141(d), 211(b), (c),
216.]
Section 2.4. Annual and Regular Meetings. The annual meeting of the Board
of Directors for the purpose of electing officers and for the transaction of
such other business as may come before the meeting shall be held as soon as
possible following adjournment of the annual meeting of the stockholders at the
place of such annual meeting of the stockholders. Notice of such annual meeting
of the Board of Directors need not be given. The Board of Directors from time to
time may by resolution provide for the holding of regular meetings and fix the
place (which may be within or without the State of Delaware) and the date and
hour of such meetings. Notice of regular meetings need not be given, provided,
however, that if the Board of Directors shall fix or change the time or place of
any regular meeting, notice of such action shall be mailed promptly, or sent by
facsimile transmission or telegram, to each Director who shall not have been
present at the meeting at which such action was taken, addressed to him at his
usual place of business, or shall be delivered to him personally. Notice of such
action need not be given to any Director who attends the first regular meeting
after such action is taken without protesting the lack of notice to him, prior
to or at the commencement of such meeting, or to any Director who submits a
signed waiver of notice, whether before or after such meeting. [Section 141(g).]
Section 2.5. Special Meetings; Notice. Special meetings of the
Board of Directors shall be held whenever called by a majority of the total
authorized number of Directors, the Chairman or by the President or, in the
event of his absence or disability, by any Vice President or by the Secretary or
Acting Secretary, at such place (within or without the State of Delaware), date
and hour as may be specified in the respective notices or waivers of notice of
such meetings. Special meetings of the Board of Directors may be called on 24
hours' notice, if notice is given to each Director personally or by telephone,
telegram, facsimile or other electronic means of transmission, or on five days'
notice, if notice is mailed to each Director, addressed to him at his usual
place of business. Notice of any special meeting need not be given to any
Director who attends such meeting without protesting the lack of notice to him,
prior to or at the commencement of such meeting, or to any Director who submits
a signed waiver of notice, whether before or after such meeting, and any
business may be transacted thereat. [Sections 141(g), 229.]
Section 2.6. Quorum; Voting. At all meetings of the Board of Directors, the
presence of a majority of the total authorized number of Directors shall
constitute a quorum for the transaction of business. Except as otherwise
required by law, the Restated Certificate of Incorporation or these Amended
By-Laws, the vote of a majority of the Directors present at any meeting at which
a quorum is present shall be the act of the Board of Directors. [Section
141(b).]
Section 2.7. Adjournment. A majority of the Directors present, whether or
not a quorum is present, may adjourn any meeting of the Board of Directors to
another time or place. No notice need be given of any adjourned meeting unless
the time and place of the adjourned meeting are not announced at the time of
adjournment, in which case notice conforming to the requirements of Section 2.5
shall be given to each Director.
Section 2.8. Action Without a Meeting. Any action required or permitted to
be taken at any meeting of the Board of Directors may be taken without a meeting
if all members of the Board of Directors consent thereto in writing, and such
writing or writings are filed with the minutes of proceedings of the Board of
Directors. [Section 141(f).]
Section 2.9. Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board or, in his absence or if such office
is vacant, by the President, or in their absence by a chairman chosen at the
meeting. The Secretary or Acting Secretary shall act as secretary of the
meeting, but in his absence the chairman of the meeting may appoint any person
to act as secretary of the meeting.
Section 2.10. Regulations; Manner of Acting. To the extent consistent with
applicable law, the Restated Certificate of Incorporation and these Amended
By-Laws, the Board of Directors may adopt such rules and regulations for the
conduct of meetings of the Board of Directors and for the management of the
property, affairs and business of the Corporation as the Board of Directors may
deem appropriate. The Directors shall act only as a Board, and the individual
Directors shall have no power as such.
Section 2.11. Action by Telephonic Communications. Members of the Board of
Directors may participate in a meeting of the Board of Directors by means of
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 provision shall constitute presence in person at such
meeting. [Section 141(i).]
Section 2.12. Resignations. Any Director may resign at any time by
delivering a written notice of resignation, signed by such Director, to the
President or the Secretary or Acting Secretary. Unless otherwise specified
therein, such resignation shall take effect upon delivery. [Section 141(b).]
Section 2.13. Removal of Directors. A Director may be removed for or
without cause, upon the affirmative vote of the holders of a majority of the
outstanding shares of stock of the Corporation then entitled to vote at an
election of Directors, cast at a special meeting of stockholders called for the
purpose or at an annual meeting. Notwithstanding the foregoing, the election,
term, removal and filling of vacancies with respect to Directors elected
separately by the holders of one or more series of Preferred Stock of the
Corporation shall not be governed by this Ariticle II, but rather shall be as
provided for either in the Restated Certificate of Incorporation or in the
Preferred Stock Certificate of Designations pursuant to which such series of
Preferred Stock was created and established. [Section 141(k).]
Section 2.14. Vacancies and Newly Created Directorships. If any vacancies
shall occur in the Board of Directors, by reason of death, resignation, removal
(and the stockholders shall not have filled such vacancy as provided in Section
2.13 above) or otherwise, or if the authorized number of Directors shall be
increased, the Directors then in office shall continue to act, and such
vacancies or newly created directorships, as the case may be, may be filled by a
majority of Directors then in office, although less than a quorum. A Director
elected by the Directors pursuant to this Section 2.14 to fill a vacancy or a
newly created directorship shall hold office until his successor has been
elected and qualified or until his earlier death, resignation or removal.
[Section 223.]
Section 2.15. Compensation. The amount, if any, which each Director shall
be entitled to receive as compensation for his services as such shall be fixed
from time to time by resolution of the Board of Directors. [Section 141(h).]
Section 2.16. Reliance on Accounts and Reports, etc. A Director, or a
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 information, opinions, reports or statements
presented to the Corporation by any of the Corporation's officers or employees,
or Committees designated by the Board of Directors, or by any other person as to
the matters the member reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Corporation. [Section 141(e).]
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 3.1. How Constituted. The Board of Directors may, by resolution
adopted by a majority of the whole Board, designate one or more Committees,
including an Executive Committee, each such Committee to consist of such number
of Directors as from time to time may be fixed by the Board of Directors. The
Board of Directors may designate one or more Directors as alternate members of
any such Committee, who may replace any absent or disqualified member or members
at any meeting of such Committee. Thereafter, members (and alternate members, if
any) of each such Committee may be designated at the annual meeting of the Board
of Directors. Any such Committee may be abolished or re-designated from time to
time by the Board of Directors. Each member (and each alternate member) of any
such Committee (whether designated at an annual meeting of the Board of
Directors or to fill a vacancy or otherwise) shall hold office until his
successor shall have been designated or until he shall cease to be a Director,
or until his earlier death, resignation or removal. [Section 141(c).]
Section 3.2. Powers. During the intervals between the meetings of the Board
of Directors, the Executive Committee, except as otherwise provided in this
section, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the property, affairs and business of the
Corporation, including the power to declare dividends and to authorize the
issuance of stock. Each such other Committee, except as otherwise provided in
this section, shall have and may exercise such powers of the Board of Directors
as may be provided by resolution or resolutions of the Board of Directors.
Neither the Executive Committee nor any such other Committee shall have the
power or authority:
(a) to amend the Restated Certificate of Incorporation (except
that a Committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by
the Board of Directors as provided in Section 151(a) of the Delaware
General Corporation Law, fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation or the
conversion into, or the exchange of such shares for, shares of any
other class or classes or any other series of the same or any other
class or classes of stock of the Corporation or fix the number of
shares of any series of stock or authorize the increase or decrease of
the shares of any series),
(b) to adopt an agreement of merger or consolidation,
(c) to recommend to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and
assets,
(d)to recommend to the stockholders a dissolution of the
Corporation or a revocation of a dissolution, or
(e) to amend the Amended By-Laws of the Corporation.The
Executive Committee shall have, and any such other Committee may
be granted by the Board of Directors, power to authorize the seal
of the Corporation to be affixed to any or all papers which may
require it. [Section 141(c).]
Section 3.3. Proceedings. Each such Committee may fix its own rules of
procedure and may meet at such place (within or without the State of Delaware),
at such time and upon such notice, if any, as it shall determine from time to
time. Each such Committee shall keep minutes of its proceedings and shall report
such proceedings to the Board of Directors at the meeting of the Board of
Directors next following any such proceedings.
Section 3.4. Quorum and Manner of Acting. Except as may be otherwise
provided in the resolution creating such Committee, at all meetings of any
Committee the presence of members (or alternate members) constituting a majority
of the total authorized membership of such Committee shall constitute a quorum
for the transaction of business. The act of the majority of the members present
at any meeting at which a quorum is present shall be the act of such Committee.
Any action required or permitted to be taken at any meeting of any such
Committee may be taken without a meeting, if all members of such Committee shall
consent to such action in writing and such writing or writings are filed with
the minutes of the proceedings of the Committee. The members of any such
Committee shall act only as a Committee, and the individual members of such
Committee shall have no power as such. [Section 141(c), (f).]
Section 3.5. Action by Telephonic Communications. Members of any Committee
designated by the Board of Directors may participate in a meeting of such
Committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this provision shall constitute
presence in person at such meeting. [Section 141(i).]
Section 3.6. Absent or Disqualified Members. In the absence or
disqualification of a member of any Committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. [Section 141(c).]
Section 3.7. Resignations. Any member (and any alternate member) of any
Committee may resign at any time by delivering a written notice of resignation,
signed by such member, to the Chairman or the President. Unless otherwise
specified therein, such resignation shall take effect upon delivery.
Section 3.8. Removal. Any member (and any alternate member) of any
Committee may be removed at any time, either for or without cause, by resolution
adopted by a majority of the whole Board of Directors.
Section 3.9. Vacancies. If any vacancy shall occur in any
Committee, by reason of disqualification, death, resignation, removal or
otherwise, the remaining members (and any alternate members) shall continue to
act, and any such vacancy may be filled by the Board of Directors.
ARTICLE IV
OFFICERS
Section 4.1. Number. The officers of the Corporation shall be chosen by the
Board of Directors and shall be a President, one or more Vice Presidents, a
Secretary, a Controller, a General Auditor and a Treasurer, and it may, if it so
determines, elect a Chairman of the Board of Directors from among its members.
The Board of Directors also may elect a Vice Chairman and one or more Acting or
Assistant Secretaries, Assistant Controllers and Assistant Treasurers in such
numbers as the Board of Directors may determine. Any number of offices may be
held by the same person, except that neither the Chairman of the Board of
Directors nor the President shall also hold the office of Secretary. No officer,
other than the Chairman or Vice Chairman, need be a Director of the Corporation.
[Section 142(a), (b).]
Section 4.2. Election. Unless otherwise determined by the Board of
Directors, the officers of the Corporation shall be elected by the Board of
Directors at the annual meeting of the Board of Directors, and shall be elected
to hold office until the next succeeding annual meeting of the Board of
Directors. In the event of the failure to elect officers at such annual meeting,
officers may be elected at any regular or special meeting of the Board of
Directors. Each officer shall hold office until his successor has been elected
and qualified, or until his earlier death, resignation or removal. [Section
142(b).]
Section 4.3. Salaries. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors. Section 4.4. Removal and
Resignation; Vacancies. Any officer may be removed for or without cause at any
time by the Board of Directors. Any officer may resign at any time by delivering
a written notice of resignation, signed by such officer, to the Board of
Directors or the President or the Secretary or Acting Secretary. Unless
otherwise specified therein, such resignation shall take effect upon delivery.
Any vacancy occurring in any office of the Corporation, by death, resignation,
removal or otherwise, shall be filled by the Board of Directors. [Section
142(b), (e).]
Section 4.5. Authority and Duties of Officers. The officers of the
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified in these Amended By-Laws, except that in any
event each officer shall exercise such powers and perform such duties as may be
required by law. [Section 142(a).]
Section 4.6. The President. The President shall preside at all meetings of
the stockholders and Directors at which he is present in the absence of the
Chairman or Vice Chairman, shall be the chief executive officer and the chief
operating officer of the Corporation, shall have general control and supervision
of the policies and operations of the Corporation and shall see that all orders
and resolutions of the Board of Directors are carried into effect. He shall
manage and administer the Corporation's business and affairs and shall also
perform all duties and exercise all powers usually pertaining to the office of a
chief executive officer and a chief operating officer of a corporation. He shall
have the authority to sign, in the name and on behalf of the Corporation,
checks, orders, contracts, leases, notes, drafts and other documents and
instruments in connection with the business of the Corporation, and together
with the Secretary or an Acting or Assistant Secretary, conveyances of real
estate and other documents and instruments to which the seal of the Corporation
is affixed. He shall have the authority to cause the employment or appointment
of such employees and agents of the Corporation as the conduct of the business
of the Corporation may require, to fix their compensation, and to remove or
suspend any employee or agent elected or appointed by the President or the Board
of Directors. The President shall perform such other duties and have such other
powers as the Board of Directors or the Chairman may from time to time
prescribe.
Section 4.7. Vice Presidents. Each Vice President shall perform such duties
and exercise such powers as may be assigned to him from time to time by the
President. In the absence of the President, the duties of the President shall be
performed and his powers may be exercised by such Vice President as shall be
designated by the President, or failing such designation, such duties shall be
performed and such powers may be exercised by each Vice President in the order
of their earliest election to that office, subject in any case to review and
superseding action by the President.
Section 4.8. The Secretary. The Secretary shall have the following powers
and duties:
(a) He shall keep or cause to be kept a record of all the
proceedings of the meetings of the stockholders and of the Board of
Directors in books provided for that purpose.
(b) He shall cause all notices to be duly given in accordance
with the provisions of these Amended By-Laws and as required by law.
(c) Whenever any Committee shall be appointed pursuant to a
resolution of the Board of Directors, he shall furnish a copy of such
resolution to the members of such Committee.
(d) He shall be the custodian of the records and of the seal
of the Corporation and cause such seal (or a facsimile thereof) to be
affixed to all certificates representing shares of the Corporation
prior to the issuance thereof and to all instruments the execution of
which on behalf of the Corporation under its seal shall have been duly
authorized in accordance with these Amended By-Laws, and when so
affixed he may attest the same.
(e) He shall properly maintain and file all books, reports,
statements, certificates and all other documents and records required
by law, the Restated Certificate of Incorporation or these Amended
By-Laws.
(f) He shall have charge of the stock books and ledgers of the
Corporation and shall cause the stock and transfer books to be kept in
such manner as to show at any time the number of shares of stock of the
Corporation of each class issued and outstanding, the names (arranged
alphabetically or chronologically) and the addresses of the holders of
record of such shares, the number of shares held by each holder and the
date as of which each became such holder of record.
(g) He shall sign (unless the Treasurer, an Assistant
Treasurer or Acting or Assistant Secretary shall have signed)
certificates representing shares of the Corporation the issuance of
which shall have been authorized by the Board of Directors.
(h) He shall perform, in general, all duties incident to the
office of Secretary and such other duties as may be specified in these
Amended By-Laws or as may be assigned to him from time to time by the
Board of Directors, or the President.
Section 4.9. The Treasurer. The Treasurer shall have the following powers
and duties:
(a) He shall have charge and supervision over and be
responsible for the moneys, securities, receipts and disbursements of
the Corporation, and shall keep or cause to be kept full and accurate
records of all receipts of the Corporation.
(b) He shall cause the moneys and other valuable effects of
the Corporation to be deposited in the name and to the credit of the
Corporation in such banks or trust companies or with such bankers or
other depositaries as shall be selected in accordance with Section 8.5
of these Amended By-Laws.
(c) He shall cause the moneys of the Corporation to be
disbursed by checks or drafts (signed as provided in Section 8.6 of
these Amended By-Laws) upon the authorized depositaries of the
Corporation and cause to be taken and preserved proper vouchers for all
moneys disbursed.
(d) He shall render to the Board of Directors or the
President, whenever requested, a statement of the financial condition
of the Corporation and of all his transactions as Treasurer, and render
a full financial report at the annual meeting of the stockholders, if
called upon to do so.
(e) He shall be empowered from time to time to require from
all officers or agents of the Corporation reports or statements giving
such information as he may desire with respect to any and all financial
transactions of the Corporation.
(f) He may sign (unless an Assistant Treasurer or the
Secretary or an Acting or Assistant Secretary shall have signed)
certificates representing stock of the Corporation the issuance of
which shall have been authorized by the Board of Directors.
(g) He shall perform, in general, all duties incident to the
office of treasurer and such other duties as may be specified in these
Amended By-Laws or as may be assigned to him from time to time by the
Board of Directors, or the President.
Section 4.10. Additional Officers. The Board of Directors may appoint such
other officers and agents as it may deem appropriate, and such other officers
and agents and the officers specified in Section 4.1 hereof not covered in
Sections 4.6 through 4.9 hereof shall hold their offices for such terms and
shall exercise such powers and perform such duties as generally pertain to their
respective offices, as well as such powers and duties as from time to time may
be authorized or prescribed by the Board of Directors. The Board of Directors
from time to time may delegate to any officer or agent the power to appoint
subordinate officers or agents and to prescribe their respective rights, terms
of office, authorities and duties. Any such officer or agent may remove any such
subordinate officer or agent appointed by him, for or without cause. [Section
142(a), (b).]
Section 4.11. Security. The Board of Directors may require any officer,
agent or employee of the Corporation to provide security for the faithful
performance of his duties, in such amount and of such character as may be
determined from time to time by the Board of Directors. [Section 142(c).]
ARTICLE V
CAPITAL STOCK
Section 5.1. Certificates of Stock, Uncertificated Shares. The shares of
the Corporation shall be represented by certificates, provided that the Board of
Directors may provide by resolution or resolutions that some or all of any or
all classes or series of the stock of the Corporation, or rights associated
therewith shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until each certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock in the Corporation represented by certificates
and upon request every holder of uncertificated shares shall be entitled to have
a certificate signed by, or in the name of the Corporation, by the Chairman,
President or a Vice President, and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Acting or Assistant Secretary, representing the number of
shares registered in certificate form. Such certificate shall be in such form as
the Board of Directors may determine, to the extent consistent with applicable
law, the Restated Certificate of Incorporation and these Amended By-Laws.
[Section 158.]
Section 5.2. Signatures; Facsimile. All of such signatures on the
certificate may be a facsimile, engraved or printed, to the extent permitted by
law. In case any officer, transfer agent or registrar who has signed, or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue. [Section 158.]
Section 5.3. Lost, Stolen or Destroyed Certificates. The Board of Directors
may direct that a new certificate be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon delivery to the Board of Directors of an affidavit of the owner
or owners of such certificate, setting forth such allegation. The Board of
Directors may require the owner of such lost, stolen or destroyed certificate,
or his legal representative, to give the Corporation a bond sufficient to
indemnify it against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
any such new certificate. [Section 167.]
Section 5.4. Transfer of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares, duly endorsed or
accompanied by appropriate evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Within a reasonable time after the transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to Sections 151, 156, 202(a) or 218(a) of the General Corporation Law
of the State of Delaware. Subject to the provisions of the Restated Certificate
of Incorporation and these Amended By-Laws, the Board of Directors may prescribe
such additional rules and regulations as it may deem appropriate relating to the
issue, transfer and registration of shares of the Corporation. [Section 151(f).]
Section 5.5. Record Date. In order to determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which record
date shall not precede the date on which the resolution fixing the record date
is adopted by the Board of Directors, and which shall not be more than sixty nor
less than ten days before the date of such meeting. 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.
In order that the Corporation may determine the stockholders entitled
pursuant to these Amended By-Laws to consent to corporate action in writing
without a meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which date shall not be more than ten
days after the date upon which the resolution fixing the record date is adopted
by the Board of Directors. If no record date has been fixed by the Board of
Directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
In order that the Corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
of the stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action. If
no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. [Section 213.]
Section 5.6. Registered Stockholders. Prior to due surrender of a
certificate for registration of transfer, the Corporation may treat the
registered owner as the person exclusively entitled to receive dividends and
other distributions, to vote, to receive notice and otherwise to exercise all
the rights and powers of the owner of the shares represented by such
certificate, and the Corporation shall not be bound to recognize any equitable
or legal claim to or interest in such shares on the part of any other person,
whether or not the Corporation shall have notice of such claim or interests.
Whenever any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer if, when the
certificates are presented to the Corporation for transfer or uncertificated
shares are requested to be transferred, both the transferor and transferee
request the Corporation to do so. [Section 159.]
Section 5.7. Transfer Agent and Registrar. The Board of Directors may
appoint one or more transfer agents and one or more registrars, and may require
all certificates representing shares to bear the signature of any such transfer
agents or registrars.
ARTICLE VI
INDEMNIFICATION
Section 6.1. Nature of Indemnity. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
is or was or has agreed to become a Director or officer of the Corporation, or
is or was serving or has agreed to serve at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, and may indemnify any person who was or is a party or
is threatened to be made a party to such an action, suit or proceeding by reason
of the fact that he is or was or has agreed to become an employee or agent of
the Corporation, or is or was serving or has agreed to serve at the request of
the Corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding had no
reasonable cause to believe his conduct was unlawful; except that in the case of
an action or suit by or in the right of the Corporation to procure a judgment in
its favor (1) such indemnification shall be limited to expenses (including
attorneys' fees) actually and reasonably incurred by such person in the defense
or settlement of such action or suit, and (2) no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
The termination of any action, suit or proceeding by judgment,
order settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
Section 6.2. Successful Defense. To the extent that a
Director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Section 6.1 hereof or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 6.3. Determination That Indemnification is Proper. Any
indemnification of a Director or officer of the Corporation under Section 6.1
hereof (unless ordered by a court) shall be made by the Corporation unless a
determination is made that indemnification of the Director or officer is not
proper in the circumstances because he has not met the applicable standard of
conduct set forth in Section 6.1 hereof. Any indemnification of an employee or
agent of the Corporation under Section 6.1 hereof (unless ordered by a court)
may be made by the Corporation upon a determination that indemnification of the
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 6.1 hereof. Any such
determination shall be made (1) by a majority vote of the Directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(2) if there are no such Directors, or if such Directors so direct, by
independent legal counsel in a written opinion, or (3) by the stockholders.
Section 6.4. Advance Payment of Expenses. Expenses (including
attorneys' fees) incurred by a Director or officer in defending any civil,
criminal, administrative or investigative 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 shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article.
Such expenses (including attorneys' fees) incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the Board of Directors
deems appropriate. The Board of Directors may authorize the Corporation's
counsel to represent such Director, officer, employee or agent in any action,
suit or proceeding, whether or not the Corporation is a party to such action,
suit or proceeding.
Section 6.5. Procedure for Indemnification of Directors and
Officers. Any indemnification of a Director or officer of the Corporation under
Sections 6.1 and 6.2, or advance of costs, charges and expenses to a Director or
officer under Section 6.4 of this Article, shall be made promptly, and in any
event within 30 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 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 such request. If the Corporation denies a
written request for indemnity or advancement of expenses, in whole or in part,
or if payment in full pursuant to such request is not made within 30 days, the
right to indemnification or advances as granted by this Article 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 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 brought to enforce a claim for the advance
of costs, charges and expenses under Section 6.4 of this Article where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in Section 6.1 of this
Article, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors, its
independent legal counsel, and 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 has met the applicable standard of
conduct set forth in Section 6.1 of this Article, nor the fact that there has
been an actual determination by the Corporation (including its Board of
Directors, its independent legal counsel, and 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 6.6. Survival; Preservation of Other Rights. The
foregoing indemnification provisions shall be deemed to be a contract between
the Corporation and each Director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the General Corporation Law of the State of Delaware are in
effect. Any repeal or modification of these indemnification provisions shall not
affect any right or obligation then existing with respect to any state of facts
then or previously existing or any action, suit or proceeding previously or
thereafter brought or threatened based in whole or in part upon any such state
of facts. Such a "contract right" may not be modified retroactively without the
consent of such Director, officer, employee or agent.
The indemnification provided by this Article VI shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any by-law, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a Director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
Section 6.7. Insurance. The Corporation shall purchase and
maintain insurance on behalf of any person who is or was or has agreed to become
a Director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him or on his behalf in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article,
provided that such insurance is available on acceptable terms, which
determination shall be made by a vote of a majority of the entire Board of
Directors.
Section 6.8. Severability. If this Article VI or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each Director or
officer and may indemnify each employee or agent of the Corporation as to costs,
charges and expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement with respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, including an action by or in
the right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated and to the fullest
extent permitted by applicable law.
ARTICLE VII
OFFICES
Section 7.1. Registered Office. The registered office of the
Corporation in the State of Delaware shall be located at Corporation Trust
Center, 1209 Orange Street in the City of Wilmington, County of New Castle.
Section 7.2. Other Offices. The Corporation may maintain
offices or places of business at such other locations within or without the
State of Delaware as the Board of Directors may from time to time determine or
as the business of the Corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1. Dividends. Subject to any applicable provisions
of law and the Restated Certificate of Incorporation, dividends upon the shares
of the Corporation may be declared by the Board of Directors at any regular or
special meeting of the Board of Directors and any such dividend may be paid in
cash, property, shares of the Corporation's capital stock or rights to acquire
the same.
A member of the Board of Directors, or a member of any
Committee designated by the Board of Directors shall 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 its officers or employees, or Committees of the Board of Directors, or by any
other person as to matters the Director reasonably believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation, as to the value and amount
of the assets, liabilities and/or net profits of the Corporation, or any other
facts pertinent to the existence and amount of surplus or other funds from which
dividends might properly be declared and paid. [Sections 172, 173.]
Section 8.2. Reserves. 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, thinks proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation or for such other
purpose as the Board of Directors shall think conducive to the interest of the
Corporation, and the Board of Directors may similarly modify or abolish any such
reserve.
Section 8.3. Execution of Instruments. The President, any Vice
President, the Secretary or Acting Secretary or the Treasurer may enter into any
contract or execute and deliver any instrument in the name and on behalf of the
Corporation. The Board of Directors or the President may authorize any other
officer or agent to enter into any contract or execute and deliver any
instrument in the name and on behalf of the Corporation. Any such authorization
may be general or limited to specific contracts or instruments.
Section 8.4. Corporate Indebtedness. No loan shall be
contracted on behalf of the Corporation, and no evidence of indebtedness shall
be issued in its name, unless authorized by the Board of Directors or the
President or any Vice President. Such authorization may be general or confined
to specific instances. Loans so authorized may be effected at any time for the
Corporation from any bank, trust company or other institution, or from any firm,
corporation or individual. All bonds, debentures, notes and other obligations or
evidences of indebtedness of the Corporation issued for such loans shall be
made, executed and delivered as the Board of Directors or the President or any
Vice President shall authorize. When so authorized by the Board of Directors or
the President or any Vice President, any part of or all the properties,
including contract rights, assets, business or good will of the Corporation,
whether then owned or thereafter acquired, may be mortgaged, pledged,
hypothecated or conveyed or assigned in trust as security for the payment of
such bonds, debentures, notes and other obligations or evidences of indebtedness
of the Corporation, and of the interest thereon, by instruments executed and
delivered in the name of the Corporation.
Section 8.5. Deposits. Any funds of the Corporation may be
deposited from time to time in such banks, trust companies or other depositaries
as may be determined by the Board of Directors or the President, or by such
officers or agents as may be authorized by the Board of Directors or the
President or any Vice President to make such determination.
Section 8.6. Checks. All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers or such agent or
agents of the Corporation, and in such manner, as the Board of Directors or the
President or any Vice President from time to time may determine.
Section 8.7. Sale, Transfer, etc. of Securities. To the extent
authorized by the Board of Directors or by the President, any Vice President,
the Secretary or Acting Secretary or the Treasurer or any other officers
designated by the Board of Directors or the President may sell, transfer,
endorse, and assign any shares of stock, bonds or other securities owned by or
held in the name of the Corporation, and may make, execute and deliver in the
name of the Corporation, under its corporate seal, any instruments that may be
appropriate to effect any such sale, transfer, endorsement or assignment.
Section 8.8. Voting as Stockholder. Unless otherwise
determined by resolution of the Board of Directors, the President or any Vice
President or the Secretary or Acting Secretary shall have full power and
authority on behalf of the Corporation to attend any meeting of stockholders of
any corporation in which the Corporation may hold stock, and to act, vote (or
execute proxies to vote) and exercise in person or by proxy all other rights,
powers and privileges incident to the ownership of such stock. Such officers
acting on behalf of the Corporation shall have full power and authority to
execute any instrument expressing consent to or dissent from any action of any
such corporation without a meeting. The Board of Directors may by resolution
from time to time confer such power and authority upon any other person or
persons.
Section 8.9. Fiscal Year. The fiscal year of the Corporation
shall commence on the first day of January of each year and shall terminate in
each case on December 31.
Section 8.10. Seal. The seal of the Corporation shall be
circular in form and shall contain the name of the Corporation, the year of its
incorporation and the words "Corporate Seal" and "Delaware". The form of such
seal shall be subject to alteration by the Board of Directors. The seal may be
used by causing it or a facsimile thereof to be impressed, affixed or
reproduced, or may be used in any other lawful manner.
Section 8.11. Books and Records; Inspection. Except to the
extent otherwise required by law, the books and records of the Corporation shall
be kept at such place or places within or without the State of Delaware as may
be determined from time to time by the Board of Directors.
ARTICLE IX
AMENDMENT OF AMENDED BY-LAWS
Section 9.1. Amendment. These Amended By-Laws may be
amended, altered or repealed
(a) by resolution adopted by a majority of the Board of
Directors at any special or regular meeting of the Board if, in the
case of such special meeting only, notice of such amendment, alteration
or repeal is contained in the notice or waiver of notice of such
meeting; or
(b) at any regular or special meeting of the stockholders upon
the affirmative vote of a majority of the combined voting power of the
then outstanding stock of the Corporation entitled to vote generally in
the election of Directors, provided, however, that any amendment,
alteration or repeal of Article I, sections 1.2, 1.10 or 1.13, Article
VI or this section 9.1 as it pertains to Directors and officers, shall
require the affirmative vote of not less than 65% of the combined
voting power of the then outstanding stock of the Corporation entitled
to vote generally in the election of Directors. In the case of such
special meeting only, notice of such amendment, alteration or repeal
must be contained in the notice or waiver of notice of such meeting.
[Section 109(a).]
ARTICLE X
CONSTRUCTION
Section 10.1. Construction. In the event of any conflict
between the provisions of these Amended By-Laws as in effect from time to time
and the provisions of the Restated Certificate of Incorporation of the
Corporation as in effect from time to time, the provisions of such Restated
Certificate of Incorporation shall be controlling.