Exhibit 4.5
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AMENDED
AND
RESTATED
BY-LAWS
OF
FRANKLIN RESOURCES, INC.
(Adopted June 27, 2002)
ARTICLE I
Offices
Section 1.1 OFFICES. The Corporation may have offices at such places both
within and without the State of Delaware as the Board of Directors or the
Chairman of the Board may from time to time determine or the business of the
Corporation may require.
ARTICLE II
Stockholders
Section 2.1 ANNUAL MEETING AND ELECTION OF DIRECTORS. The Annual Meeting of
Stockholders shall be held at such place either within or without the State of
Delaware and at such time and on such date as may be designated by resolution of
the Board of Directors from time to time. The directors shall be elected and any
other proper business may be transacted at each Annual Meeting of Stockholders.
Section 2.2 SPECIAL MEETINGS. Special meetings of stockholders for any
purpose or purposes may be called at any time by the Board of Directors or the
Chairman of the Board of Directors. Each special meeting shall be held at such
date and time as is requested by the person or persons calling the meeting
within the limits fixed by law.
Section 2.3 PLACE OF MEETINGS. Each annual or special meeting of
stockholders shall be held at such location either within or without the State
of Delaware as may be determined by the Board of Directors, or if no such
determination is made, at such place as may be determined by the Chairman of the
Board of Directors. If no location is so determined, any annual or special
meeting shall be held at the principal executive office of the Corporation.
Section 2.4 NOTICE OF MEETINGS. Notice of each annual or special meeting of
stockholders shall contain such information, and shall be given to such persons
at such time, and in such manner, as the Board of Directors shall determine, or
if no such determination is made, as the Chairman of the Board shall determine,
subject to the requirements of applicable law.
Section 2.5 ADJOURNMENTS. Any meeting of stockholders, annual or special,
may adjourn from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than 30
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 2.6 CONDUCT OF MEETINGS. Subject to the requirements of applicable
law, all annual and special meetings of stockholders shall be conducted in
accordance with such rules and procedures as the Board of Directors may
determine and, as to matters not governed by such rules and procedures, as the
Chairman of such meeting shall determine.
Section 2.7 QUORUM. The holders of a majority of the shares issued and
outstanding and entitled to vote at a meeting of the stockholders shall
constitute a quorum thereat for the transaction of business, except as otherwise
provided by statute, by the Certificate of Incorporation ("Certificate") or by
these By-Laws. If a quorum is not present or represented at a meeting of the
stockholders, the stockholders so present and entitled to vote may, by majority
vote, adjourn the meeting from time to time in the manner provided in Section
2.5 of these By-Laws until a quorum is present or represented. At any
rescheduled meeting at which a quorum is present or represented, any business
may be transacted that might have been transacted at the meeting as originally
notified.
Section 2.8 ACTION WITHOUT MEETING. Any action required by statute to be
taken at a meeting of the stockholders, or any action that may be taken at a
meeting of the stockholders, may be taken without a meeting, without prior
written 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 the outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize to take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered (by hand or by
certified or registered mail, return receipt requested) to the Corporation 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 minutes of stockholders are recorded. The signed consent or a
signed copy shall be placed in the minute book of the Corporation and prompt
notice of the taking of the corporate action shall be given to those
stockholders who have not consented in writing.
Section 2.9 TELEPHONE AND SIMILAR MEETINGS. Stockholders may participate in
and hold a meeting at which all persons participating in the meeting can hear
each other. Participation in such a meeting shall constitute presence in person
at the meeting, unless a stockholder participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
Section 2.10 VOTING; PROXIES. Except as otherwise provided by the
Certificate, each stockholder entitled to vote at any meeting of stockholders
shall be entitled to one vote for each share of stock held by him which has
voting power upon the matter in question. Each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act for him
by proxy, 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 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
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 delivering a proxy in accordance with applicable law bearing a later
date to the Secretary of the Corporation. Voting at meetings of stockholders
need not be by written ballot and, unless otherwise required by law, need not be
conducted by inspectors of election unless so determined by the holders of
shares of stock having a majority of the votes which could be cast by the
holders of all outstanding shares of stock entitled to vote thereon which are
present in person or by proxy at such meeting. At all meetings of stockholders
for the election of directors a plurality of the votes cast shall be sufficient
to elect. All other elections and questions shall, unless otherwise provided by
law, the Certificate or these By-Laws, be decided by the vote of the holders of
shares of stock having a majority of the votes present in person or represented
by proxy and entitled to vote on the matter.
Section 2.11 FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD. 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, or 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 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: (1) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than 60 nor less
than ten days before the date of such meeting; (2) in the case of determination
of stockholders entitled to express consent to corporate action in writing
without a meeting, shall not be more than ten days from the date upon which the
resolution fixing the record date is adopted by the Board of Directors; and (3)
in the case of any other action, shall not be more than 60 days prior to such
other action. If no record date is fixed: (1) the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held; (2) the record date for determining
stockholders entitled to express consent to corporate action in writing without
a meeting when no prior action of 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 in
accordance with applicable law, or, if prior action by the Board of Directors is
required by law, shall be at the close of business on the day on which the Board
of Directors adopts the resolution taking such prior action; and (3) the record
date for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
ARTICLE III
Directors
Section 3.1 NUMBER. The authorized number of directors on the Board of
Directors shall be nine (9) unless changed by a by-law duly adopted either by
the Board of Directors or the stockholders amending this Section 3.1.
Section 3.2 QUALIFICATION; ELECTION; TERM. (a) Except as otherwise provided
by Section 3.9 of these By-Laws, the directors shall be elected at the annual
meeting of stockholders.
(b) Each director elected shall hold office until the next annual meeting
of stockholders and until his or her successor has been elected and qualified or
until his or her death, resignation, retirement, disqualification or removal.
Section 3.3 POWERS . Subject to limitations of the Certificate, these
By-Laws, and the General Corporation Law of the State of Delaware relating to
actions required to be approved by the stockholders or by the outstanding
shares, the business and affairs of the Corporation shall be managed and all
corporate powers shall be exercised by or under direction of the Board of
Directors. The Board of Directors may delegate the management of the day-to-day
operation of the business of the Corporation to the officers of the Corporation
or other persons provided that the business and affairs of the Corporation shall
be managed by and all corporate powers shall be exercised under the ultimate
direction of the Board of Directors.
Section 3.4 MEETINGS OF THE BOARD. (a) Each meeting of the Board of
Directors shall be held at a location determined as follows. The Board of
Directors may designate any place, within or without the State of Delaware, for
the holding of any meeting. If no
such designation is made, the meeting shall be held at the Corporation's
principal executive office. Subject to the requirements of applicable law, all
meetings of the Board of Directors shall be conducted in accordance with such
rules and procedures as the Board of Directors may approve and, as to matters
not governed by such rules and procedures, as the Chairman of such meeting shall
determine.
(b) Special meetings of the Board of Directors may be held at any time or
place within or without the State of Delaware whenever called by the Chairman,
any President, any Vice President, the Secretary, or by any member of the Board
of Directors. Notice of a special meeting of the Board of Directors shall be
given by the person or persons calling the meeting at least 24 hours before the
special meeting.
Section 3.5 QUORUM: VOTE REQUIRED FOR ACTION. At all meetings of the Board
of Directors a majority of the whole Board of Directors shall constitute a
quorum for the transaction of business. Except in cases in which the Certificate
or these By-Laws otherwise provide, the vote of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
Section 3.6 ACTION BY CONSENT. 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 a written consent setting forth the action so taken
is signed by all members of the Board of Directors or of such committee, as the
case may be, and such written consent is filed with the Secretary of the
Corporation and placed in the minute book. Such consent shall have the same
force and effect as a unanimous vote at a meeting of such Board of Directors or
committee.
Section 3.7 COMMITTEES. The Board of Directors may, by resolution adopted
by a majority of the whole Board of Directors, designate one or more committees,
each committee to consist of one or more of the directors of the Corporation.
Any such committee, to the extent provided in the resolution of the Board of
Directors, shall have and may exercise all of the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have any powers or
authority in reference to: (a) amending the Certificate; (b) approving an
agreement of merger or consolidation; (c) recommending to the stockholders the
sale, lease or exchange of all or substantially all of the Corporation's
property and assets otherwise than in the usual and regular course of its
business; (d) recommending to the stockholders a dissolution of the Corporation
or a revocation thereof; (e) amending or repealing the By-Laws of the
Corporation or adopting new By-Laws of the Corporation; (f) amending or
repealing any resolution of the Board of Directors which by its express terms is
not so amendable or repealable; (g) appointing other committees of the Board of
Directors or the members thereof; (h) filling new vacancies in or removing
members of the Board of Directors or of any committee appointed by the Board of
Directors; (i) fixing the compensation of the directors for serving on the Board
of Directors or for serving as any member of a committee thereof; or (j) unless
the resolution of the Board of Directors expressly so provides, declaring a
dividend or authorizing the issuance of stock. Any such committee shall report
on its meetings to the Board of Directors at the next meeting of the Board of
Directors.
Section 3.8 REMOVAL. Any or all directors may be removed at any time, with
or without cause, by the holders of a majority of the shares of stock
outstanding and entitled to vote for the election of directors.
Section 3.9 VACANCIES. A vacancy occurring in the Board of Directors (by
death, resignation, retirement, disqualification, removal or otherwise) may be
filled by the affirmative vote of a majority of the remaining directors,
although less than a quorum, or by a sole remaining director, or by vote of the
stockholders required for the election of directors generally.
Section 3.10 COMPENSATION. Members of the Board of Directors and any
committee thereof may, by resolution of the Board of Directors, be allowed
compensation for attending meetings of the Board of Directors and committees
thereof.
Section 3.11 TELEPHONE AND SIMILAR MEETINGS. Board members may participate
in and hold a meeting at which all persons participating in the meeting can hear
each other. Participation in such a meeting shall constitute presence in person
at the meeting, unless a person authorized to participate in such a meeting
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting was not lawfully
called or convened.
Section 3.12 MINUTES. The Board of Directors shall keep either a record of
action taken or minutes of their proceedings. The minutes of the proceedings of
any committee of the Board of Directors shall be placed in the minute book of
the Corporation.
ARTICLE IV
Indemnification of Directors, Officers, Employees and Agents
Section 4.1 INDEMNIFICATION RESPECTING THIRD PARTY CLAIMS. The Corporation,
to the fullest extent permitted, and in the manner required, by the laws of the
State of Delaware as in effect at the time of the adoption of this Article or as
such laws may be amended from time to time shall indemnify any person who was or
is made a party to or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (including any appeal thereof),
whether civil, criminal, administrative or investigative in nature (other than
an action by or in the right of the Corporation), by reason of the fact that
such person is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of, or to represent the interests of, the
Corporation as a director, officer, partner, fiduciary, employee or agent (a
"Subsidiary Officer") of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise (an "Affiliated Entity"), against
expenses, (including attorneys' fees and disbursements), costs, judgment,fines,
penalties and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful; provided, however,
that the Corporation shall not be obligated to indemnify against any amount paid
in settlement unless the Corporation has consented to such settlement, which
consent shall not be unreasonably withheld. The termination of any action, suit
or proceeding by judgment, order, settlement or conviction or upon a plea of
nolocontendere or its equivalent shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, that such
person had reasonable cause to believe that his or her conduct was unlawful.
Notwithstanding anything to the contrary in the foregoing provisions of this
Section 4.1, a person shall not be entitled, as a matter of right, to
indemnification pursuant to this Section 4.1 against costs or expenses incurred
in connection with any action, suit or proceeding commenced by such person
against any person who is or was a director, officer, fiduciary, employee or
agent of the Corporation or a Subsidiary Officer of any Affiliated Entity, but
such indemnification may be provided by the Corporation in a specific case as
permitted by Section 4.6 of this Article.
Section 4.2 INDEMNIFICATION RESPECTING DERIVATIVE CLAIMS. The Corporation,
to the full extent permitted, and in the manner required, by the laws of the
State of Delaware as in effect at the time of the adoption of this Article or as
such laws may be amended from time to time, shall indemnify any person who was
or is made a party to or is threatened to be made a party to any threatened,
pending or completed action or suit (including any appeal thereof) brought in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that such person is or was director, officer, employee or agent of the
Corporation or is or was serving at the request of, or to represent the
interests of, the Corporation as a Subsidiary Officer of an Affiliated Entity
against expenses (including attorneys' fees and disbursements) and costs
actually and reasonably incurred by such person in connection with such action
or suit if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and except that 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 except to the extent that, the Court of
Chancery of the State of Delaware or the court in which such judgment was
rendered 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 and costs as the
Court of Chancery of the State of Delaware or such other court shall deem
proper. Notwithstanding anything to the contrary in the foregoing provisions of
this Section 4.2, a person shall not be entitled, as a matter of right, to
indemnification pursuant to this Section 4.2 against costs and expenses incurred
in connection with any action or suit in the right of the Corporation commenced
by such person, but such indemnification may be provided by the Corporation in
any specific case as permitted by Section 4.6 of this Article.
Section 4.3 DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION. Any
indemnification under Section 4.1 or 4.2 of this Article (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the present or former director,
officer, employee or agent is proper under the circumstances because such person
has met the applicable standard of conduct set forth in, Section 4.1 or 4.2 of
this Article. Such determination shall be made with respect to a person who is a
director or officer at the time of such determination (i) by a majority vote of
the Board of Directors who were not parties to the action, suit or proceeding,
even though less than a quorum or (ii) by a committee of such directors (each of
whom is not a party to such action, suit or proceeding) designated by majority
vote of the Board of Directors, even though less than a quorum, or (iii) if
there are no such directors or if the disinterested directors so direct, by
independent legal counsel in a written opinion, or (iv) by the stockholders. In
the event a request for indemnification is made by any person referred to in
Section 4.1 or Section 4.2 of this Article, the Corporation shall cause such
determination to be made not later than 60 days after such request is made.
Section 4.4 RIGHT TO INDEMNIFICATION UPON SUCCESSFUL DEFENSE AND FOR
SERVICE AS WITNESS. (a) Notwithstanding the other provisions of this Article, to
the extent that a present or former director orofficer of the Corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 4.1 or 4.2 of this Article, or in defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees and disbursements) and costs actually and
reasonably incurred by such person in connection therewith.
(b) To the extent any person who is or was a director, officer, employee or
agent of the Corporation has served or prepared to serve as a witness in any
action, suit or proceeding (whether civil, criminal, administrative or
investigative in nature) or in any investigation by the Corporation or the Board
of Directors thereof or committee thereof or by any securities exchange on which
securities of the Corporation are or were listed by reason of his services as a
director, officer, employee or agent of the Corporation or as a Subsidiary
Officer of any Affiliated Entity (other than in a suit commenced by such
person), the Corporation shall indemnify such person against expenses (including
attorneys' fees and disbursements) and costs actually and reasonably incurred by
such person in connection therewith within 30 days after receipt by the
Corporation from such person of a statement requesting such indemnification,
averring such service and reasonably evidencing such expenses and costs.
Section 4.5 ADVANCE OF EXPENSES. Expenses (including attorneys' fees) and
costs incurred by an officer of director of the Corporation in defending a
civil, criminal, administrative or investigative action, suit or proceeding may
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 such person
to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the Corporation
as authorized by this Article. Such expenses (including attorneys' fees)
incurred by other former directors and officers employees or agents of the
Corporation may be so paid upon such terms and conditions, if any, as the
corporation deems appropriate.
Section 4.6 INDEMNIFICATION NOT EXCLUSIVE. The provision of indemnification
to, or the advancement of expenses and costs to, any person under this Article,
or the entitlement of any person to indemnification or advancement of expenses
and costs under this Article, shall not limit or restrict in any way the power
of the Corporation to indemnify or advance expenses and costs to such person in
any other way permitted by law or be deemed exclusive of, or invalidate, any
right to which any person seeking indemnification or advancement of expenses and
costs may be entitled under any law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
capacity as an officer, director, employee or agent of the Corporation and as to
action to any other capacity while holding any such position.
Section 4.7 ACCRUAL OF CLAIMS; SUCCESSORS. The indemnification provided or
permitted under this Article shall apply in respect of any expense, cost,
judgment, fine, penalty or amount paid in settlement, whether or not the claim
or cause of action in respect thereof accrued or arose before or after the
effective date of this Article. The right of any person who is or was a
director, officer, employee or agent of the Corporation to indemnification under
this Article shall continue after he shall have ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
distributes, executors, administrators and other legal representatives of such
person.
Section 4.8 CORPORATE OBLIGATIONS; RELIANCE. This Article shall be deemed
to create a binding obligation on the part of the Corporation to its current and
former officers, directors, employees and agents and their heirs, distributes,
executors, administrators and other legal representatives, and such persons in
acting in such capacities shall be entitled to rely on the provisions of this
Article, without giving notice thereof to the Corporation.
Section 4.9 INSURANCE. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of, or to represent the
interests of, the Corporation as a Subsidiary Officer of any Affiliated Entity,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power to indemnify such person against such
liability under the provisions of this Article or applicable law.
Section 4.10 DEFINITIONS OF CERTAIN TERMS. (a) For purposes of this
Article, 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 corporate
existence had continued, would have been permitted under applicable law to
indemnify its directors, officers employees or agents,
so that any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request, or to represent
the interests of, such constituent corporation as a director, officer, employee
or agent of any Affiliated Entity shall stand in the same position under the
provisions of this Article with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(b) For purposes of this Article, references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan;
references to "serving at the request of the Corporation" shall include any
service as a director, officer, fiduciary, employee or agent of the Corporation
which imposes duties on, or involves services by, such director, officer,
fiduciary, employee or agent-with respect to an employee benefit plan, its
participants, or beneficiaries: and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interest of the Corporation" as referred to in
this Article.
Section 4.11 AMENDMENT OR REPEAL. Any repeal or modification of the
foregoing provisions of this Article IV shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
ARTICLE V
Officers
Section 5.1 PRINCIPAL OFFICERS. The principal officers of the Corporation
shall be a Chairman of the Board, one or more Presidents, a Secretary and a
Treasurer, each of whom shall have the authority to perform the duties provided
in these By-Laws and such other duties, and may have such other authority and
powers, as may from time to time be prescribed by the Board of Directors or as
the Chairman of the Board may from time to time delegate. One person may hold
two or more offices, except that the Secretary may not also hold the office of
President.
Section 5.2 SUBORDINATE OFFICERS. The Corporation may also have, at the
discretion of the Board of Directors, one or more Vice Chairmen, one or more
Vice Presidents, one or more Assistant Secretaries, one or more Assistant
Treasurers and such other officers as the business of the Corporation may
require, each of whom shall have
the authority and perform the duties as may be provided in these By-Laws or as
may from time to time be assigned by the Board of Directors.
Section 5.3 APPOINTMENT OF THE CORPORATION'S OFFICERS. The Board of
Directors shall appoint the officers of the Corporation, each such officer to
hold his office until the earlier of his death, resignation, retirement,
disqualification or removal. Thereafter, the Board of Directors may, from time
to time, appoint other officers of the Corporation to fill a vacancy in any
office or otherwise, each such officer to hold his office until the earlier of
his death, resignation, retirement, disqualification or removal from office.
Section 5.4 REMOVAL AND RESIGNATION. (a) Any officer may be removed, either
with or without cause, by the unanimous written consent of the Board of
Directors or by a majority of the directors at the time in office, at any
regular or special meeting of the Board of Directors.
(b) Any officer may resign at any time by giving written notice to the
Board of Directors, the Chairman of the Board of Directors, a President or the
Secretary of the Corporation. Any such resignation shall take effect at the date
of the receipt of such notice or at any later time specified therein; and unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 5.5 CHAIRMAN OF THE BOARD. (a) The Chairman of the Board shall,
subject to the ultimate direction of the Board of Directors, have general
supervision, direction and control of the business and affairs of the
Corporation.
(b) The Chairman of the Board shall have the general powers and duties of
management usually vested in the chief executive officer of a corporation.
(c) The Chairman of the Board shall provide the general and active
management of the business operations of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect.
(d) The Chairman of the Board shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be delegated by the Board of
Directors to some other officer or agent of the Corporation.
Section 5.6 PRESIDENT. (a) A President, unless a Chairman of the Board is
elected by the Board of Directors, shall, if present, preside at all meetings of
stockholders or directors.
Section 5.7 SECRETARY. (a) The Secretary shall keep, or cause to be kept,
the minute book of the Corporation at the principal executive office of the
Corporation, or such other place as the Board of Directors may order, of all
meetings of stockholders, the
Board of Directors and its committees, with the time and place of holding,
whether regular or special and if special, how authorized and the notice thereof
given, the names of those present at Board of Directors and committee meetings,
the number of shares present or represented at stockholders' meetings and the
proceedings thereof.
(b) The Secretary shall keep, or cause to be kept, at the principal
executive office of the Corporation or at the office of the Corporation's
transfer agent, a share register, or a duplicate share register, showing the
names of the stockholders and their addresses; the number and classes of shares
held by each; the number and date of certificates issued for the same; and the
number and date of cancellation of every certificate surrendered for
cancellation.
Section 5.8 TREASURER. (a) The Treasurer shall deposit or cause the deposit
of all monies and other valuables in the name and to the credit of the
Corporation with such depositories as may be designated by the Board of
Directors.
(b) The Treasurer shall have custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and disbursements of the
Corporation.
(c) The Treasurer shall be responsible for effecting the properly
authorized disbursement of funds of the Corporation and shall provide
appropriate and timely accounting of his transactions as Treasurer to the
Chairman of the Board and to the Board of Directors.
(d) The Treasurer shall keep and maintain, or cause to be kept and
maintained, adequate and correct accounts of the properties and business
transactions of the Corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, additional paid-in capital and
retained earnings. Capital and additional paid-in capital shall be classified
according to source and shown in separate accounts.
(e) The Treasurer shall provide appropriate and timely reports on the
financial condition of and the results of operations of the Corporation to the
Chairman of the Board and to the Board of Directors.
Section 5.9 VICE PRESIDENTS. The Vice Presidents, if any, shall exercise
and perform such powers and duties with respect to the administration of the
business affairs and operations of the Corporation as may from time to time be
assigned to each of them by the Chairman of the Board, a President or the Board
of Directors, or if not ranked, a Vice President designated by the Board of
Directors, may perform all of the duties of the Chairman of the Board and when
so acting shall have all of the powers of and be subject to all of the
restrictions upon the Chairman of the Board.
Section 5.10 ASSISTANT SECRETARIES. The Assistant Secretaries, if any, may,
in the absence or disability of the Secretary, perform all of the duties of the
Secretary and when so acting shall have all of the powers of and be subject to
all of the restrictions upon the Secretary.
Section 5.11 ASSISTANT TREASURERS. The Assistant Treasurers, if any, may,
in the absence or disability of the Treasurer, perform all of the duties of the
Treasurer and when so acting shall have all of the powers of and be subject to
all of the restrictions upon the Treasurer.
Section 5.12 COMPENSATION. The compensation, if any, of the officers and
agents shall be fixed from time to time by the Board of Directors.
ARTICLE VI
Amendments
Section 6.1 BY-LAWS. These By-Laws may be altered or repealed, and new
By-Laws adopted by the Board of Directors, but the stockholders may make
additional By-Laws and may alter and repeal any By-Laws whether adopted by them
or otherwise.
ARTICLE VII
General Provisions
Section 7.1 SEAL. The Board of Directors shall adopt a corporate seal,
which shall be in the form of a circle and shall bear the name of the
Corporation and words and figures showing that the Corporation was incorporated
in the State of Delaware and the date of incorporation.
Section 7.2 METHOD. Whenever by statute, the Certificate, these By-Laws, or
otherwise, notice is required to be given to a director, committee member or
stockholder, and no provision is made as to how the notice shall be given, it
shall not be construed to mean personal notice, but any such notice may be
given: (a) in writing by mail, first-class postage prepaid, addressed to the
director, committee member, or stockholder and the address appearing on the
books of the Corporation; (b) facsimile transmission; or (c) in any other method
permitted by law. Any notice required or permitted to be given by mail shall be
deemed given at the time when the same is deposited in accordance with the terms
of this Section in the United States mails.
Section 7.3 WAIVER OF NOTICE. Whenever notice is required to be given by
these By-Laws or the Certificate or by law, the person entitled to said notice
may waive such notice in writing, either before or after the time stated herein,
and such waiver shall be deemed equivalent to notice.
Section 7.4 FISCAL YEAR. The fiscal year of the Corporation shall end on
the 30th day of September in each year.
Section 7.5 CONSTRUCTION. Whenever the context so requires, the masculine
gender shall include the feminine and neuter genders and the singular shall
include the plural, and conversely. If any portion of these By-Laws shall be
invalid or inoperative, then, so far as is reasonable and possible: (a) the
remainder of these By-Laws shall be considered valid and operative; and (b)
effect shall be given to the intent manifested by the portion held invalid or
inoperative.
Section 7.6 HEADINGS. The headings set forth in these By-Laws are for
organization, convenience and clarity. In interpreting these By-Laws, they shall
be subordinated in importance to other written material.
Section 7.7 RELATION TO THE CERTIFICATE OF INCORPORATION. These By-Laws are
subject to, and governed by the Certificate and any written agreement by a
majority in interest of the stockholders filed with the Corporation at its
principal place of business.
Section 7.8 FORM OF RECORDS. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, diskettes, hard disk drives, photographs, microphotographs, or
any other information storage device, provided that the records so kept can be
converted into clearly legible form within a reasonable time.