Page 15
Exhibit 3(a)
NATIONAL SERVICE INDUSTRIES, INC.
BY - LAWS
(as amended and restated January 5, 2000)
(A Delaware Corporation)
ARTICLE ONE
OFFICES AND AGENT
1.1 Registered Office and Agent. The registered office of the
Corporation within the State of Delaware shall be in the City of Wilmington,
County of New Castle, and the name of the registered agent in charge thereof is
The Corporation Trust Company.
1.2 Other Offices. In addition to its registered office within the
State of Delaware, the Corporation may also have offices at such other places,
both within and without the State of Delaware, as the Board of Directors may,
from time to time determine or the business of the Corporation may require or
make desirable.
ARTICLE TWO
STOCKHOLDERS' MEETINGS
2.1 Place of Meetings. All meetings of the stockholders for the
election of directors or for any other purpose shall be held at any place either
within or without the State of Delaware as shall be designated from time to time
by the Board of Directors or, if it fails to act, the Chairman of the Board, or
if he fails to act, the President, and shall be stated in the notice of meeting
or a duly executed waiver thereof.
2.2 Quorum, Adjournment. The holders of one-third of the voting power
of the stock of the Corporation issued and outstanding and entitled to vote at a
meeting of stockholders, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by the Delaware General Corporation Law or
by the Corporation's Restated Certificate of Incorporation, as amended from time
to time ("Certificate of Incorporation"). If, however, a quorum shall not be
present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat shall have the power to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
shall be present. At such adjourned meeting at which a quorum shall be present,
any business may be transacted which might have been transacted at the meeting
as originally called. If the adjournment is for more than thirty days, or, if
after adjournment a new record date is set, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
Page 16
Exhibit 3(a)
2.3 Conduct of Meetings. At each meeting of stockholders, the Chairman
of the Board shall act as chairman of the meeting. In the absence or inability
or refusal to act of the Chairman of the Board, the Vice Chairman of the Board,
or if a Vice Chairman has not been elected, the President, shall act as chairman
of the meeting. The Secretary or, in his absence, inability or refusal to act,
such person as the chairman of the meeting shall appoint shall act as secretary
of the meeting and keep the minutes thereof.
2.4 Order of Business. The order of business at all meetings of the
stockholders shall be as determined by the chairman of the meeting.
2.5 Voting. Except as otherwise provided by statute or the
Corporation's Certificate of Incorporation, each stockholder of the Corporation
shall be entitled at each meeting of stockholders to one vote for each share of
capital stock of the Corporation standing in his name on the list of
stockholders of the Corporation on the record date fixed as provided in these
By-Laws, as amended from time to time ("By-Laws"). Each stockholder entitled to
vote at any meeting of stockholders may authorize another person or persons to
act for him by a proxy which is in writing or is transmitted as permitted by
law, including, without limitation, electronically, via telegram, internet,
interactive voice response system, or other means of electronic transmission
executed or authorized by such stockholders or his attorney-in-fact and bearing
a date not more than three (3) years prior to said meeting, unless said
instrument provides for a longer period. Any such proxy shall be delivered to
the secretary of the meeting at or prior to the time designated in the order of
business for so delivering such proxies. Any proxy transmitted electronically
shall set forth information from which it can be determined by the secretary or
voting inspector of the meeting that such electronic transmission was authorized
by the stockholder. 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 or in the
Corporation's Certificate of Incorporation or these By-Laws, be decided by the
vote of the holders of a majority of the outstanding shares of stock entitled to
vote thereon present in person or by proxy at the meeting. Unless required by
statute, or determined by the chairman of the meeting to be advisable, the vote
on any question need not be by ballot. On a vote by ballot, each ballot shall be
signed by the stockholder voting, or by his proxy, if there be such proxy, and
shall state the number of shares voted.
2.6 List of Stockholders. A complete list of the stockholders entitled
to vote at each meeting of stockholders, arranged in alphabetical order, with
the address of each, and the number of voting shares held by each, shall be
prepared by the Secretary at least ten days before every meeting. Such list
shall be open to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of at least ten days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
2.7 Inspectors. The Board of Directors may, in advance of any meeting
Page 17
Exhibit 3(a)
of stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If any of the inspectors so appointed shall fail to appear
or act, the chairman of the meeting shall, or if inspectors shall not have been
appointed, the chairman of the meeting may, appoint one or more inspectors. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. The inspectors
shall determine the number of shares of capital stock of the Corporation
outstanding and the voting power of each, the number of shares represented at
the meeting, the existence of a quorum, and the validity and effect of proxies,
and shall receive votes, ballots or consents, hear and determine all challenges
and questions arising in connection with the right to vote, count and tabulate
all votes, ballots or consents, determine the results, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by them. No director or candidate for the office
of director shall act as an inspector of an election of directors. Inspectors
need not be stockholders.
2.8 Annual meeting. The Annual Meeting of the Stockholders of the
Corporation ("Annual Meeting") shall be held at such time and on such date as
shall be designated by the Board of Directors and stated in the notice of
meeting. At such meeting, the stockholders shall elect directors as provided in
the Corporation's Certificate of Incorporation and By-Laws and shall transact
such other business as may properly come before the meeting.
2.9 Notice of Annual Meeting. Except as otherwise expressly required by
statute, written notice of the Annual Meeting stating the date, place and time
of the meeting shall be given to each stockholder entitled to vote thereat, not
less than ten nor more than sixty days prior to the date of the meeting. Notice
is given when deposited in the United States mail, postage prepaid, directed to
the stockholder at his address as it appears on the records of the Corporation.
Notice of any meeting shall not be required to be given to any person (i) who
attends such meeting, except when such person attends the meeting in person or
by proxy for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened, or (ii) who, either before or after the meeting, shall submit a signed
written waiver of notice, in person or by proxy. Neither the business to be
transacted at, nor the purpose of, an Annual Meeting need be specified in any
written waiver of notice.
2.10 Notice of Stockholder Proposals. (a) At an Annual Meeting, only
such business shall be conducted, and only such proposals shall be acted upon,
as shall have been brought before the Annual Meeting (i) by, or at the direction
of, the Board of Directors or (ii) by any stockholder of the Corporation who
complies with the notice procedures set forth in this Section of these By-Laws.
For a proposal to be properly brought before an Annual Meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to, or mailed and received at, the principal executive offices of the
Corporation not less than forty-five (45) or more than seventy-five
Page 18
Exhibit 3(a)
(75) days prior to the first anniversary of the date on which the Corporation
first mailed its proxy materials for the preceding year's Annual Meeting,
regardless of any postponements, deferrals, or adjournments of that meeting to a
later date; provided, however, that if during the preceding year the Corporation
did not hold an Annual Meeting or if the date of the Annual Meeting is advanced
more than thirty (30) days prior to or delayed by more than thirty (30) days
after the anniversary of the preceding year's Annual Meeting, notice by the
stockholder to be timely must be so delivered or received not later than ninety
(90) days prior to the scheduled Annual Meeting; and provided, further, however,
that if less than one hundred (100) days' notice or prior public disclosure of
the date of the scheduled Annual Meeting is given or made, notice by the
stockholder to be timely must be so delivered or received not later than the
close of business on the tenth (10th) day following the earlier of the day on
which such notice of the date of the scheduled Annual Meeting was mailed or the
day on which such public disclosure was made. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the Annual Meeting (i) a brief description of the proposal desired to be
brought before the Annual Meeting and the reasons for conducting such business
at the Annual Meeting, (ii) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business and any other
stockholders known by such stockholder to be supporting such proposal, (iii) the
class and the number of shares of the Corporation's stock which are beneficially
owned by the stockholder on the date of such stockholder notice and by any other
stockholders known by such stockholder to be supporting such proposal on the
date of such stockholder notice, and (iv) any financial interest of the
stockholder in such proposal.
(b) If the presiding officer of the Annual Meeting determines
that a stockholder proposal was not made in accordance with the terms of this
Section, he shall so declare at the Annual Meeting and any, such proposal shall
not be acted upon at the Annual Meeting.
(c) This provision shall not prevent the consideration and
approval or disapproval at the Annual Meeting of reports of officers, directors
and committees of the Board of Directors, but, in connection with such reports,
no business shall be acted upon at such Annual Meeting unless stated, filed and
received as herein provided.
2.11 Special Meetings. Special meetings of the stockholders ("Special
Meetings"), for any purpose or purposes, unless otherwise prescribed by statute
or by the Certificate of Incorporation, may be called by the Chief Executive
Officer, and shall be called by the President or Secretary at the request in
writing of a majority of the Board of Directors. Such request shall state the
purpose or purposes of the proposed meeting. Business transacted at all Special
Meetings shall be confined to the purposes stated in the notice of meeting.
2.12 Notice of Special Meetings. Except as otherwise expressly required
by statute, written notice of a special meeting, stating the date, time, place,
and purpose or purposes thereof, shall be given to each stockholder entitled to
vote thereat not less than ten nor more than sixty days prior to the date of the
meeting. Notice is given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his
Page 19
Exhibit 3(a)
address as it appears on the records of the Corporation. Notice of any meeting
shall not be required to be given to any person who attends such meeting, except
when such person attends the meeting in person or by proxy for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened, or who, either
before or after the meeting, shall submit a signed written waiver of notice, in
person or by proxy. Neither the business to be transacted at, nor the purpose
of, a Special Meeting need be specified in any written waiver of notice.
ARTICLE THREE
BOARD OF DIRECTORS
3.1 General Powers. The business and affairs of the Corporation shall
be managed by or be under the direction of the Board of Directors. The Board of
Directors may exercise all such authority and powers of the Corporation and do
all such lawful acts and things as are not by statute or the Corporation's
Certificate of Incorporation directed or required to be done by the
stockholders.
3.2 Number, Qualification, Term of Office. The number of directors
which constitute the entire Board of Directors of the Corporation shall be fixed
by resolution of the Board of Directors from time to time, but shall in any
event be not less than seven nor more than fifteen. Any decrease in the number
of directors shall be effective at the time of the next succeeding Annual
Meeting unless there shall be vacancies in the Board of Directors at the time
the Board effects such decrease, in which case such decrease may become
effective at any time prior to the next succeeding Annual Meeting to the extent
of the number of vacancies. Directors need not be stockholders. Except as
provided in these By-Laws, directors shall be elected at the Annual Meeting or
at a Special Meeting called for such purpose, and each director shall be elected
to hold office until a successor shall be elected and qualify.
3.3 Election of Directors. Nominations for the election of directors
may be made by the Board of Directors or a nominating committee appointed by the
Board of Directors or by any stockholder entitled to vote in the election of
directors generally. However, any stockholder entitled to vote in the election
of directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such stockholder's intent to
make such nomination or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the Secretary of the Corporation
not later than (i) with respect to an election to be held at an Annual Meeting,
ninety (90) days prior to the anniversary date of the immediately preceding
Annual Meeting; and (ii) with respect to an election to be held at a Special
Meeting for the election of directors, the close of business on the tenth (10th)
day following the date on which notice of such meeting is first given to
stockholders. Each such notice shall set forth: (A) the name and address of the
stockholder who intends to make the nomination and of the person or persons to
be nominated; (B) a representation that the stockholder is a holder of record of
stock of the Corporation entitled to vote at such meeting and intends
Page 20
Exhibit 3(a)
to appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (C) a description of all arrangements or understandings
between the stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations are to
be made by the stockholder; (D) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission as then in effect; and (E) the consent of each nominee to serve as a
director of the Corporation if so elected. The presiding officer of the meeting
shall refuse to acknowledge the nomination of any person not made in compliance
with the foregoing procedure. The vote necessary to elect directors shall be as
set forth in these By-Laws including, without limitation, Section 2.5 hereof,
unless otherwise required by the Delaware General Corporation Law.
3.4 Vacancies. Unless otherwise provided in the Corporation's
Certificate of Incorporation (or by resolution of the Board of Directors, any
vacancy in the Board of Directors, whether arising from death, resignation,
removal, or any other cause, and any newly created directorship resulting from
an increase in the number of directors, shall be filled exclusively by a
majority of the directors then in office, although less than a quorum, or by the
sole remaining director, and shall not be filled by the stockholders. Each
director so elected shall hold office until his successor shall have been
elected and qualified.
3.5 Resignations. Any director of the Corporation may resign at any
time by giving written notice of his resignation to the Corporation. Any such
resignation shall take effect at the time specified therein or, if the time when
it shall become effective shall not be specified therein, immediately upon its
receipt. Unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
3.6 Committees. (a) The Board of Directors may, by resolution passed by
a majority of the entire Board of Directors, designate one or more committees,
including an executive committee, each committee to consist of one or more of
the directors of the Corporation. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In addition, in the
absence or disqualification of a member of a 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.
(b) Except to the extent restricted by the Delaware General
Corporation Law or the Corporation's Certificate of Incorporation, each such
committee, to the extent provided in the resolution creating it, shall have and
may exercise all the powers and authority of the Board of Directors and may
authorize the seal of the Corporation to be affixed to all papers which require
it. Each such committee shall serve at the pleasure of the Board of Directors
and have such name as may be determined from time to time by resolution adopted
by the Board of Directors. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors.
Page 21
Exhibit 3(a)
(c) Except to the extent restricted by the Delaware General
Corporation Law or the Corporation's Certificate of Incorporation, the Executive
Committee, if any, shall, when the Board of Directors is not in session, have
and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, including, without
limitation, the power and authority to declare a dividend, to authorize the
issuance of stock, and to adopt a certificate of ownership and merger pursuant
to Section 253 of the Delaware General Corporation Law.
3.7 Compensation. The Board of Directors shall have authority to fix
the compensation, including fees and reimbursement of expenses, of directors for
services to the Corporation in any capacity.
ARTICLE FOUR
MEETINGS OF THE BOARD
4.1 Annual Meeting. The newly elected Board shall meet, immediately
after the Annual Meeting at which they were elected, for the purpose of
organization or otherwise, and no notice of such meeting shall be necessary to
the newly elected directors in order legally to constitute the meeting, provided
a majority of the whole Board shall be present.
4.2 Regular Meetings. Regular meetings of the Board shall be held
within six (6) weeks following the end of each fiscal quarter at such time and
place as the Board of Directors may fix. Notice of regular meetings of the Board
of Directors need not be given.
4.3 Special Meetings. Special meetings of the Board may be called by
the Chairman of the Board or the President. Notice of any special meeting shall
be given to each director at least twelve (12) hours before the meeting by
telephone or by being personally delivered or sent by telex, telecopier, or
telegraph, or at least three (3) days before the meeting if delivered by mail at
the address at which the director is most likely to be reached. Such notice
shall be deemed to be delivered when deposited in the United States mail so
addressed, with postage prepaid, or when transmitted if sent by telex,
telecopier or telegraph. Any director may waive notice of any meeting by a
writing signed by the director entitled to the notice and filed with the minutes
or corporate records. The attendance at or participation of the director at a
meeting shall constitute waiver of notice of such meeting, unless the director
at the beginning of the meeting or promptly upon his arrival objects to holding
the meeting or transacting business at the meeting. Neither the business to be
transacted at, nor the purpose of, any meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting. Special meetings
shall be called by the Chairman of the Board, President or Secretary in like
manner and on like notice on the written request of two directors.
4.4 Place of Meetings. Unless otherwise specified in the notice of any
meeting, meetings of the Board of Directors shall be held at such place or
places, within
Page 22
Exhibit 3(a)
or without the State of Delaware, as the Board of Directors may from time to
time determine.
4.5 Quorum and Manner of Acting. At all meetings of the Board,
one-third of the total number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by the Delaware General Corporation Law or by the Certificate of Incorporation
or by these By-Laws. However, directors attending a meeting at which less than a
quorum is present shall have the power to adjourn the meeting. Notice of the
time and place of any such adjourned meeting shall be given to all of the
directors unless such time and place were announced at the meeting at which the
adjournment was taken, in which case such notice shall only be given to the
directors who were not present thereat. At any adjourned meeting at which a
quorum is present, any business may be transacted which might have been
transacted at the meeting as originally called.
4.6 Conduct of Meetings. At each meeting of the Board of Directors, the
Chairman of the Board shall act as chairman of the meeting and preside thereat.
The Secretary or, in his absence, inability or refusal to act, such person as
the chairman of the meeting shall appoint shall act as secretary of the meeting
and keep the minutes thereof.
4.7 Action by Consent. Unless restricted by the Corporation's
Certificate of Incorporation, any action required or permitted to be taken by
the Board of Directors or committee may be taken without a meeting if all
members of the Board of Directors or such committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
the proceedings of the Board of Directors or committee, as the case may be.
4.8 Telephonic Meeting. Unless restricted by the Corporation's
Certificate of Incorporation, any one or more members of the Board of Directors
or any committee thereof may participate in a meeting of the Board of Directors
or such committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation by such means shall constitute presence in person at a
meeting.
ARTICLE FIVE
OFFICERS
5.1 Offices. The Board of Directors, at its first meeting after each
Annual Meeting of Stockholders, shall elect the officers of the Corporation,
which shall include the following: Chairman of the Board; President; one or more
Vice Presidents, as the Board of Directors shall designate; Secretary; and
Treasurer. The Secretary and the Treasurer may be the same person, and any Vice
President may hold at the same time the office of Secretary and/or Treasurer.
The Board may elect one or more Assistant Secretaries and one or more Assistant
Treasurers as may be necessary or desirable for the
Page 23
Exhbit 3(a)
business of the Corporation. The Board may also elect from among its members a
Vice Chairman of the Board, and from among its members or former members, a
Chairman Emeritus. The Board may elect such other officers as it shall deem
necessary, who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Board.
5.2 Designation of Chief Executive Officer. The Board of Directors
shall designate either the Chairman of the Board or the President of the
Corporation as the Chief Executive officer of the Corporation. The Chief
Executive Officer shall have authority over the business and affairs of the
Corporation and over all other officers, agents and employees of the
Corporation, subject to the control and direction of the Board of Directors.
5.3 Designation of Chief Operating Officer. The Board of Directors may
designate an officer of the Corporation as the Chief Operating Officer of the
Corporation. The Chief Operating Officer, if designated, shall manage and
operate the business and affairs of the Corporation, subject to the control and
direction of the Board of Directors, and shall report to the Chief Executive
Officer.
5.4 Compensation. The salaries of all officers shall be fixed
by or pursuant to the direction of the Board of Directors.
5.5 Tenure and Removal. Each officer of the Corporation shall hold
office until his successor is chosen and qualifies in his stead, or until his
death, or until he shall have resigned or been removed, as hereinafter provided
in these By-Laws. Any officer elected or appointed by the Board of Directors may
be removed at any time with or without cause by the affirmative vote of a
majority of the Board of Directors.
5.6 Resignations. Any officer of the Corporation may resign at any time
by giving written notice of his resignation to the Corporation. Any such
resignation shall take effect at the time specified therein or, if the time when
it shall become effective shall not be specified therein, immediately upon
receipt. Unless otherwise specified therein, the acceptance of any such
resignation shall not be necessary to make it effective.
5.7 Vacancies. If the office of any officer becomes vacant by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, the Board of Directors may fill each such vacancy for the unexpired
term in respect of which such vacancy occurred.
5.8 Chairman of the Board. (a) The Chairman of the Board shall be
elected from among the members of the Board of Directors and shall be an officer
of the Corporation. The Chairman shall preside at all meetings of the Board of
Directors and of the stockholders. The Chairman shall have such powers and
duties as an officer of the Corporation as provided by these By-Laws and as the
Board of Directors may from time to time prescribe.
(b) The Chairman may sign, execute, acknowledge and deliver,
in the name and on behalf of the Corporation, all stock certificates, deeds,
mortgages, bonds,
Page 24
Exhibit 3(a)
contracts, documents and instruments, except where the signing thereof shall be
expressly and exclusively delegated to some other officer or agent by the Board
of Directors or by these By-Laws, or required by law to be otherwise signed or
executed.
5.9 Chairman Emeritus. The Board of Directors may elect a former
Chairman of the Board as Chairman Emeritus. The Chairman Emeritus shall be an
honorary position, reflecting outstanding service and devotion to the
Corporation. The Chairman Emeritus shall advise and consult with the Board of
Directors, committees of the Board of Directors, and the President, on matters
of interest to the Corporation, and shall perform such other duties as the Board
of Directors may from time to time prescribe.
5.10 Vice Chairman of the Board. The Vice Chairman of the Board, if one
shall have been elected from among the members of the Board, shall, in the
absence of the Chairman or in the event of the Chairman's refusal or inability
to act, preside at all meetings of the Board of Directors and stockholders, and
shall perform such other duties as the Board of Directors may from time to time
prescribe.
5.11 President. (a) The President shall have such powers and shall
perform such duties as are provided by these By-Laws and as the Board of
Directors may from time to time prescribe. The President shall, in the
Chairman's absence, inability or refusal to act, perform the duties of the
Chairman, other than duties to be performed by the Vice Chairman (if one shall
have been elected) as prescribed under or pursuant to these By-Laws. When so
acting, the President shall have all of the powers of and be subject to all the
restrictions upon the Chairman, including the powers and restrictions applicable
to the Chief Executive Officer if the Chairman serves in that capacity.
(b) The President may sign, execute, acknowledge and deliver,
in the name and on behalf of the Corporation, all stock certificates, deeds,
mortgages, bonds, contracts, documents and instruments, except where the signing
thereof shall be expressly and exclusively delegated to some other officer or
agent by the Board of Directors or by these By-Laws or required by law to be
otherwise signed or executed.
5.12 Vice President. (a) Each Vice President shall have such powers and
be required to perform such duties as the Board of Directors or the Chief
Executive Officer may from time to time prescribe.
(b) The Board of Directors may designate one or more of the
Vice Presidents as Executive Vice President. The Executive Vice President (or,
if more than one Executive Vice President has been designated, the Executive
Vice President specified by the Board of Directors) shall, in the President's
absence, inability or refusal to act, perform all of the duties of the
President. When so acting, the Executive Vice President shall have all of the
powers of and be subject to all of the restrictions upon the President,
including the powers and restrictions applicable to the Chief Executive Officer
if the President serves in that capacity.
5.13 Secretary. (a) The Secretary shall attend all sessions of the
Board and all meetings of the stockholders and shall record all votes and the
minutes of all such
Page 25
Exhibit 3(a)
proceedings in a book to be kept for that purpose. The Secretary shall perform
like duties for the Committees of the Board upon requested. He shall be
custodian of the records and the seal of the Corporation and shall affix and
attest the seal to all documents to be executed on behalf of the Corporation
under its seal. He shall give, or cause to be given, notice of all meetings of
the stockholders and of the Board of Directors, in accordance with the
provisions of these By-Laws and as required by the Delaware General Corporation
Law, and shall perform such other duties as the Board of Directors or the Chief
Executive Officer may from time to time prescribe.
(b) The Assistant Secretary shall, in the Secretary's absence,
inability or refusal to act, perform the duties of the Secretary, and shall
perform such other duties as the Board of Directors or the Chief Executive
Officer may from time to time prescribe.
5.14 Treasurer. (a) The Treasurer shall have charge and custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements, in books belonging to the Corporation, and shall
deposit all corporate monies and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors or pursuant to its direction.
(b) The Treasurer shall receive and give receipts for monies
due and payable to the Corporation from any source whatsoever and shall disburse
the funds of the Corporation as may be ordered by the Board, taking proper
vouchers therefor, and shall render to the President and directors, at the
regular meetings of the Board, or whenever they may require it, an account of
all of his transactions as Treasurer and of the financial condition of the
Corporation and in general, perform all duties incident to the office of the
Treasurer and such other duties as the Board of Directors or the Chief Executive
Officer may from time to time prescribe.
(c) The Assistant Treasurer shall, in the Treasurer's absence,
inability or refusal to act, perform the duties of the Treasurer and shall also
perform such other duties as the Board of Directors or the Chief Executive
Officer may from time to time prescribe.
ARTICLE SIX
STOCK CERTIFICATES AND TRANSFER THEREOF
6.1 Stock Certificates. Every holder of stock in the Corporation shall
be entitled to have a certificate, signed by, or in the name of the Corporation
by, the Chairman of the Board or the President or the Executive Vice President
and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Corporation, certifying the number of shares owned by him in
the Corporation. If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the Delaware General Corporation Law, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the Corporation shall issue
Page 26
Exhibit 3(a)
to represent such class or series of stock, a statement that the Corporation
will furnish without charge to each stockholder who so requests the
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
6.2 Transfers of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its record; provided, however, that the Corporation shall be
entitled to recognize and enforce any lawful restriction on transfer. Whenever
any transfer of stock shall be made for collateral security, and not absolutely,
it shall be so expressed in the entry of transfer if, when the certificates are
presented to the Corporation for transfer, both the transferor and the
transferee request the Corporation to do so.
6.3 Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its records as the owner
of shares of stock to receive dividends and to vote as such owner, and
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such share or shares of stock on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
6.4 Record Date. (a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders, or
to receive payment of any dividend or other distribution or allotment of any
rights or 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 on
which the resolution fixing the record date is adopted and which record date
shall not be more than sixty (60) nor less than ten (10) days before the date of
any meeting of stockholders, nor more than sixty (60) days prior to the time for
such other action as hereinbefore described; provided, however, that if no
record date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of 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, and, for determining
stockholders entitled to receive payment of any dividend or other distribution
or allotment or rights or to exercise any rights of change, conversion or
exchange of stock or for any other purpose, the record date shall be at the
close of business on the day on which the Board of Directors adopts a resolution
relating thereto.
(b) 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;
Page 27
Exhibit 3(a)
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
(c) In order that the Corporation may determine the
stockholders entitled 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 (10) days
after the date upon which the resolution fixing the record date is adopted by
the Board of Directors. Any stockholder of record seeking to have the
stockholders authorize or take corporate action by written consent shall, by
written notice to the Secretary, request the Board of Directors to fix a record
date. Such notice shall specify the action proposed to be consented to by
stockholders. The Board of Directors shall promptly, but in all events within
ten (10) days after the date on which such a request is received, adopt a
resolution fixing the record date. If no record date has been fixed by the Board
of Directors within ten (10) days after the date on which such a request is
received, 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 applicable 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. Such delivery to the Corporation shall be made to
its registered office in the State of Delaware, its principal place of business,
or any officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded, to the attention of the
Secretary of the Corporation. Such delivery 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
applicable law, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting shall be the close of business
on the date on which the Board of Directors adopts the resolution taking such
prior action.
In the event of delivery to the Corporation of a written
consent or written consents purporting to authorize or take corporate action,
and/or related revocation or revocations, (each such written consent and related
revocation, individually and collectively, a "Consent"), the Secretary of the
Corporation shall provide for the safekeeping of such Consent and shall as soon
as practicable thereafter conduct such reasonable investigation as the Secretary
deems necessary or appropriate for the purpose of ascertaining the validity of
such Consent and all matters incident thereto, including, without limitation,
whether holders of shares having the requisite voting power to authorize or take
the action specified in the Consent have given consent. If after such
investigation the Secretary shall determine that the Consent is sufficient and
valid, that fact shall be certified on the records of the Corporation kept for
the purpose of recording the proceedings of meetings of the stockholders, and
the Consent shall be filed in such records, at which time the Consent shall
become effective as stockholder action.
6.5 Lost Certificates. Any person claiming a certificate of stock to be
lost, stolen or destroyed shall make an affidavit or affirmation of that fact,
in such manner and form as the Board of Directors may from time to time require,
in order to obtain issuance
Page 28
Exhibit 3(a)
of a new certificate in place thereof. The Board of Directors may, at its
discretion and as a condition precedent to any such issuance, require any such
person to give the Corporation a bond in such sum as it may direct to indemnify
it against any claim that may be made against the Corporation on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate. Upon compliance with all requirements established by the
Board of Directors for any such issuance, a new certificate may be issued.
6.6 Facsimile Signatures. Any or all of the signatures on a certificate
may be a facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may, be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
6.7 Transfer Agents and Registrars. The Board of Directors may appoint,
or authorize any officer or officers to appoint, one or more transfer agents and
one or more registrars.
6.8 Regulations. The Board of Directors may make such additional rules
and regulations, not inconsistent with these By-Laws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation.
ARTICLE SEVEN
GENERAL PROVISIONS
7.1 Corporate Seal. The corporate seal shall have inscribed thereon the
name of the Corporation and the words "CORPORATE SEAL" and "DELAWARE."
7.2 Fiscal Year. The fiscal year shall begin the first day of
September in each year.
7.3 Checks, Notes, Drafts, Etc. All checks, drafts or other demands for
the payment of money and notes of the Corporation shall be signed, endorsed, or
accepted in the name of the Corporation by such officer or officers from time to
time designated by the Board of Directors or by an officer or officers
authorized by the Board of Directors to make such designation.
7.4 Execution of Instruments. The Board of Directors may authorize any
officer or officers, agent or agents, in the name of and on behalf of the
Corporation to enter into or execute and deliver any and all deeds, bonds,
mortgages, contracts and other obligations or instruments, and such authority
may be general or confined to specific instances.
7.5 Dividends and Reserves. Subject to the provisions of statute and
the Corporation's Certificate of Incorporation dividends upon the shares of
capital stock of
Page 29
Exhibit 3(a)
the Corporation may be declared by the Board of Directors at any regular or
special meeting, and may be paid in cash, in property or in shares of stock of
the Corporation.
7.6 Notice. Whenever under the provisions of these By-Laws written
notice is required to be given to any director, officer, or stockholder, it
shall not be construed to require personal notice, but unless otherwise provided
by these By-Laws, such notice shall be deemed to have been given in writing when
deposited in the United States mail, postage prepaid, directed to such
stockholder, officer or director at his address as it appears on the records of
the Corporation.
7.7 Voting of Stock in Other Corporations. Unless otherwise provided by
resolution of the Board of Directors, the Chief Executive Officer, from time to
time, may (or may appoint one or more attorneys or agents to) cast the votes
which the Corporation may be entitled to cast as a stockholder or otherwise in
any other corporation, any of whose shares or securities may be held by the
Corporation, at meetings of the holders of the shares or other securities of
such other corporation. In the event one or more; attorneys or agents are
appointed, the Chief Executive Officer may instruct the person or persons so
appointed as to the manner of casting such votes or giving such consent. The
Chief Executive Officer may, or may instruct the attorneys or agents appointed
to, execute or cause to be executed in the name and on behalf of the Corporation
and under its seal or otherwise, such written proxies, consents, waivers or
other instruments as may be necessary or proper in the circumstances.
7.8 Indemnification. (a) Each director or officer or former director or
officer of the Corporation or any person who may have served at its request as a
director or officer of another corporation in which it owns shares of capital
stock or of which it is a creditor, shall be indemnified and held harmless by
the Corporation, as hereinafter provided, against any and all liabilities and
counsel fees, costs and legal and other expenses (including, without limitation,
fines, penalties, judgments and amounts paid in settlement) reasonably incurred
by or imposed on him in connection with or resulting from any claim, action,
suit or proceeding, whether civil, criminal, administrative or investigative, or
any appeal therein, in which he may be or become involved or with which he may
be threatened, as a party or otherwise, by reason of his now or hereafter being
or having heretofore been a director or officer of the Corporation or of such
other corporation, or by reason of his alleged acts or omissions as a director
or officer as aforesaid, whether or not he continues to be such at the time such
liabilities, fees, costs or expenses shall have been incurred, provided such
director or officer shall be indemnified and held harmless against such
liabilities, fees, costs and expenses, only if he acted in relation to such
matters in good faith for a purpose which he reasonably believed to be in the
best interests of the Corporation.
(b) In discharging his duty to the Corporation, a director or
officer, when acting in good faith, may rely upon financial statements of the
Corporation represented to him to be correct by, the officer of the Corporation
having charge of its books of accounts, or stated in a written report by an
independent public or certified public accountant or firm of such accountants
fairly to reflect the financial condition of such corporation.
Page 30
Exhibit 3(a)
(c) Termination of a claim, action or proceeding by judgment,
order, settlement (whether with or without court approval), conviction or upon a
plea of guilty or of nolo contendere, or its equivalent, shall not of itself
create a presumption that a director or officer did not meet the standard of
conduct set forth above.
(d) The grant of an indemnification provided herein, unless
approved by a court in a final adjudication of a claim, action, suit, or
proceeding or in connection with a court approved settlement thereof, shall be
made pursuant to a direction of the Board of Directors of the Corporation, but
may be granted only (i) if the Board of Directors, acting by a quorum consisting
of directors not parties to such claim, action, suit or proceeding, shall have
determined that in its opinion the director or officer has met the standard of
conduct set forth above or (ii) in the event such a quorum is not obtainable
with due diligence, then alternatively if the Board of Directors shall have
received the written advice of independent legal counsel selected by it, that in
the latter's judgment such applicable standard of conduct has been met. If
several claims, issues, matters or actions are involved in the grant of
indemnification provided herein, a director or officer may be granted
indemnification by the Board of Directors to the extent of that portion of the
liabilities, fees, costs and expenses which are allocable to such claims,
issues, matters or actions in respect of which it is determined that such
director or officer has met the standard of conduct set forth above.
(e) Expenses incurred with respect to any claim, action, suit
or proceeding may be advanced by the Corporation prior to the final disposition
thereof upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount unless it shall ultimately be determined that he is
entitled to indemnification hereunder.
(f) The rights to the indemnification provided herein shall
inure to the benefit of the heirs, executors, administrators, or legal
representatives of the persons covered hereby; shall be in addition to any
rights to which any such person may otherwise be entitled by any provision of
law, articles of incorporation, by-law, contract, vote of stockholders or
otherwise; and shall be in addition to and not in restriction or limitation of
any other privilege or power which the Corporation may lawfully exercise with
respect to the indemnification or reimbursement of directors, officers and
others.
(g) If any part of this Section shall be found, in any action,
suit or proceeding, to be invalid or ineffective, the validity and the effect of
the remaining parts shall not be affected.
(h) The rights of indemnification provided herein shall not
arise with respect to conduct subsequent to January 5, 1987, which conduct shall
be subject to the indemnification provisions set forth in Article Fifteenth of
the Corporation's Certificate of Incorporation.
7.9 Amendments. These By-Laws may be adopted, amended or repealed (i)
by the affirmative vote of a majority of the directors present at a meeting at
which a quorum is present unless the Certificate of Incorporation or these
By-Laws shall require a
Page 31
Exhibit 3(a)
vote of a greater number, or (ii) by the affirmative vote of the holders of
two-thirds of the voting power of all of the outstanding shares of capital stock
of the Corporation at any regular or special meeting of stockholders if notice
of the proposed amendment is contained in the notice of the meeting or waived by
all of the stockholders entitled to vote.