Exhibit 3(ii)
AMENDED
AND
RESTATED
BY-LAWS
OF
FRANKLIN RESOURCES, INC.
(Adopted December 10, 1999)
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.
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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.
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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.
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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.
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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.
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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.
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(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.
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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.
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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 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 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.
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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.
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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 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 (i) by the
Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to the action, suit or proceeding in
respect of which indemnification is sought or by majority vote of the
members of a committee of the Board of Directors composed of at least
three members each of whom is not a party to such action, suit or
proceeding, or (ii) if such quorum is not obtainable and/or such a
committee is not established or obtainable, or, even if obtainable, if
a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) 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 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 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.
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Section 4.5 Advance of Expenses. Expenses (including attorneys' fees)
and costs incurred by an officer or 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 employees or
agents of the Corporation may be so paid upon such terms and
conditions, if any, as the Board of Directors 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.
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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.
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(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.
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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.
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(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.
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(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.
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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.
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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.
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