BY-LAWS OF
OLSTEN CORPORATION
(A Delaware Corporation)
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ARTICLE 1
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders of
OLSTEN CORPORATION (hereinafter called the "Corporation") shall be held at 9:00
A.M. on the first Tuesday in May of each year, if not a legal holiday, and if a
legal holiday, then on the next succeeding day not a legal holiday. At the
annual meeting the stockholders shall elect a Board of Directors (hereinafter
referred to as the "Board") and transact such other business as may properly be
brought before the meeting. If the annual meeting shall not be held on the day
hereinabove provided for, the Board shall cause the meeting to be held as soon
thereafter as convenient.
Section 2. Special Meetings. Special meetings of the stockholders,
unless otherwise prescribed by statute, may be called for any purpose or
purposes at any time by the Board, the Chairman of the Board or the President,
or at the request, in writing, of stockholders owning shares issued and
outstanding and entitled to vote and entitled to cast at least one-fourth of the
votes entitled to be cast on matters other than the election of directors.
Section 3. Notice of Meetings. Notice of the place, date and time of
the holding of each annual and special meeting of the stockholders and, in the
case of a special meeting, the purpose or purposes thereof, shall be given
personally or by mail in a postage prepaid envelope to each stockholder entitled
to vote at such meeting, not less than ten nor more than sixty days before the
date of such meeting, and, if mailed, it shall be directed to such stockholder
at his address as it appears on the records of the Corporation, unless he shall
have filed with the Secretary of the Corporation a written request that notices
to him be mailed to some other address, in which case it shall be directed to
him at such other address. Notice of any meeting of stockholders shall not be
required to be given to any stockholder who shall attend such meeting in person
or by proxy and shall not, at the beginning of such meeting, object to the
transaction of any business because the meeting is not lawfully called or
convened, or who shall, either before or after the meeting, submit a signed
waiver of notice, in person or by proxy. Unless the Board shall fix after the
adjournment a new record date for an adjourned meeting or unless the adjournment
is for more than thirty days, notice of such adjourned meeting need not be given
if the time and place to which the meeting shall be adjourned were announced at
the meeting at which the adjournment is taken. If the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 4. Place of Meetings. Meetings of the stockholders may be held
at such place, within or without the State of Delaware, as the Board or the
officer calling the same shall specify in the notice of such meeting, or in a
duly executed waiver of notice thereof.
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Section 5. Quorum and Vote Required. Except as otherwise provided by
applicable law, the Restated Certificate of Incorporation of the Corporation, as
the same may be amended from time to time (hereinafter referred to as the
"Restated Certificate of Incorporation"), or by these By-Laws, at all meetings
of the stockholders the holders of shares entitled to cast a majority of the
votes entitled to be cast at such meeting on all matters other than the election
of directors, present in person or represented by proxy at the meeting, shall
constitute a quorum for the transaction of business. The affirmative vote of the
holders of shares entitled to cast a majority of the votes entitled to be cast
on any matter, other than the election of directors, present in person or
represented by proxy at the meeting and entitled to vote on the subject matter
shall be the act of the stockholders.
Where a separate vote by class or classes is required by applicable
law or by the Restated Certificate of Incorporation, the holders of outstanding
shares of such class or classes entitled to cast a majority of the votes
entitled to be cast by such class or classes, present in person or represented
by proxy at the meeting, shall constitute a quorum entitled to take action with
respect to the vote on that matter and, except with respect to the election of
directors, the affirmative vote of the holders of shares entitled to cast a
majority of the votes entitled to be cast by holders of shares of such class or
classes present in person or represented by proxy at the meeting shall be the
act of such class or classes.
Directors shall be elected by a plurality of the votes entitled to be
cast by the holders of shares present in person or represented by proxy at the
meeting and entitled to vote on the election of directors and, where a separate
vote by a class or classes is required with respect to the election of
directors, such election shall be by plurality of the votes entitled to be cast
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by the holders of the shares present in person or represented by proxy at the
meeting and entitled to vote on the election of directors by such class or
classes.
In the absence of a quorum, the holders of a majority of the votes
entitled to be cast by the holders of shares of stock present in person or
represented by proxy and entitled to vote, or if no stockholder entitled to vote
is present, then any officer of the Corporation, may adjourn the meeting from
time to time. At any such adjourned meeting at which a quorum may be present any
business may be transacted which might have been transacted at the meeting as
originally called.
Unless required by statute, or determined by the chairman of the
meeting to be advisable, the vote on any question need not be by written ballot.
On a vote by written 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.
Section 6. Organization. At each meeting of the stockholders, the
Chairman of the Board, or in the absence or inability to act of the Chairman,
the President, or in the absence or inability to act of the President, a Vice
President, or in the absence of all of the foregoing, any person chosen by a
majority of the votes entitled to be cast by those stockholders present, shall
act as chairman of the meeting. The Secretary, or in his or her absence or
inability to act, the Assistant Secretary or any person appointed by the
chairman of the meeting, shall act as secretary of the meeting and keep the
minutes thereof.
Section 7. Order of Business. The order of business at all meetings of
the stockholders shall be as determined by the chairman of the meeting.
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Section 8. Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, the Board 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, and which record date shall not be more than sixty nor
less than ten days before the date of such meeting. If no record date is fixed
by the Board, 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 date on which notice is given, or, if notice is waived,
at the close of business on the day next preceding the day on which the meeting
is held. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board 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, and which date shall
not be more than ten days after the date upon which the resolution fixing the
record date is adopted by the Board. If no record date has been fixed by the
Board, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
is required, shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the Corporation
by delivery to its registered office in the State of Delaware, its principal
place of business, or an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of stockholders are recorded. Delivery
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made to the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board and prior action by the Board is required, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
Board adopts the resolution taking such prior action.
Section 9. Proxies.Each stockholder entitled to vote at any meeting of
stockholders may authorize another person or persons to act for him or her by a
proxy signed by such stockholder or his or her attorney-in-fact. Any such proxy
shall be delivered to the secretary of such meeting at or prior to the time
designated in the order of business for so delivering such proxies. No proxy
shall be valid after the expiration of three years from the date thereof, unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the stockholder executing it, except in those cases where an irrevocable
proxy is permitted by law.
Section 10. List of Stockholders. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be procured and kept at the time and place of the
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meeting during the whole time thereof, and may be inspected by any stockholder
who is present.
Section 11. Inspectors. The Board may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If the inspectors shall not be so appointed or if any of
them shall fail to appear or act, the chairman of the meeting may, and on the
request of any stockholder entitled to vote thereat shall, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his or her
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 or her ability. The inspector shall determine the number of shares
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 or any stockholder entitled to vote
thereat, the inspectors shall make a report, in writing, of any challenge,
request or matter determined by the inspectors and shall execute a certificate
of any fact found by the inspectors. No director or candidate for the office of
director shall act as inspector of an election of directors. Inspectors need not
be stockholders.
Section 12. Consent of Stockholders in Lieu of Meeting. Any action
required to be taken at any annual or special meeting of stockholders of the
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Corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Every written consent shall bear the date of signature of each
stockholder who signs the consent, and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered in the manner required by this Section to the
Corporation, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business or an officer or agent of
the Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
Prompt notice of the taking of corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE II
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the Board. The Board may exercise
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all such authority and powers of the Corporation and do all such lawful acts and
things as are not by statute or the Restated Certificate of Incorporation
directed or required to be exercised or done by the stockholders.
Section 2. Number, Qualifications, Election and Term of Office. The
number of directors of the Corporation shall be determined by majority vote of
the entire Board or by amendment of these By-Laws but, unless this By-Law is
amended, shall not be more than twelve nor less than three. Directors need not
be stockholders. Each director shall hold office until the next annual meeting
of the stockholders and until his or her successor shall have been duly elected
and qualified, or until his or her death, or until he or she shall have
resigned, or have been removed, as hereinafter provided in these By-Laws, or as
otherwise provided by statute or the Restated Certificate of Incorporation.
Section 3. Place of Meetings. Meetings of the Board may be held at
such place, within or without the State of Delaware, as the Board may, from time
to time, determine or as shall be specified in the notice or waiver of notice of
such meeting.
Section 4. Annual Meeting. The Board shall meet for the purpose of the
election of officers and the transaction of other business, as soon as
practicable after each annual meeting of the stockholders, on the same day and
at the same place where such annual meeting shall be held. Notice of such annual
meeting of the Board need not be given. Such meeting may be held at any other
time or place (within or without the State of Delaware) which shall be specified
in a notice thereof given as hereinafter provided in Section 7 of this Article
II.
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Section 5. Regular Meetings. Regular meetings of the Board shall be
held at such time and place as the Board may, from time to time, determine. If
any day fixed for a regular meeting shall be a legal holiday at the place where
the meeting is to be held, then the meeting which would otherwise be held on
that day shall be held at the same hour on the next succeeding business day.
Notice of regular meetings of the Board need not be given except as otherwise
required by statute or these By-Laws.
Section 6. Special Meetings. Special meetings of the Board may be
called by two or more directors of the Corporation or by the Chairman of the
Board or the President.
Section 7. Notice of Meetings. Notice of each special meeting of the
Board (and of each regular meeting for which notice shall be required) shall be
given by the Secretary as hereinafter provided in this Section 7, in which
notice shall be stated the time and place (within or without the State of
Delaware) of the meeting. Notice of each such meeting shall be delivered to each
director either personally or by telephone, telegraph, cable or wireless, at
least twenty-four hours before the time at which such meeting is to be held or
by first-class mail, postage prepaid, or overnight courier, addressed to a
director at the director's residence, or usual place of business, at least three
days before the day on which such meeting is to be held. Notice of any such
meeting need not be given to any director who shall, either before or after the
meeting, submit a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to such
director. Except as otherwise specifically required by these By-Laws, a notice
or waiver of notice of any regular or special meeting need not state the
purposes of such meeting.
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Section 8. Quorum and Manner of Acting. A majority of the entire Board
shall be present in person at any meeting of the Board in order to constitute a
quorum for the transaction of business at such meeting, and, except as otherwise
expressly required by statute or the Restated Certificate of Incorporation, the
act of a majority of the directors present at any meeting at which a quorum is
present shall be the act of the Board. In the absence of a quorum at any meeting
of the Board, a majority of the directors present thereat, or if no director be
present, the Secretary, may adjourn such meeting to another time and place, or
such meeting need not be held. 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. Except as provided in Article III of these
By-Laws, the directors shall act only as a Board and the individual directors
shall have no power as such.
Section 9. Organization. The Board shall elect one of its members as
Chairman of the Board. At each meeting of the Board, the Chairman of the Board,
or in his absence or inability to act, the President, or in his absence or
inability to act, another director chosen by a majority of the directors present
shall act as Chairman of the meeting and preside thereat. The Secretary (or in
his absence or inability to act, any person appointed by the Chairman) shall act
as Secretary of the meeting and keep the minutes thereof.
Section 10. Resignations. Any director of the Corporation may resign
at any time by giving written notice of his or her resignation to the Board, the
Chairman of the Board, the President or Secretary. 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; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
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Section 11. Vacancies. Vacancies and newly created directorships
resulting from an increase in the authorized number of directors elected by all
of the stockholders may be filled by a majority of the directors then in office,
though less than a quorum, or by a sole remaining director, and the directors so
chosen shall hold office until the next annual election and until their
successors are duly elected and shall qualify, unless sooner displaced. Whenever
the holders of any class or classes of stock or series thereof are entitled to
elect one or more directors by the provisions of the Restated Certificate of
Incorporation, vacancies and newly created directorships of such class or
classes or series may be filled by a majority of the directors elected by such
class or classes or series thereof in office, or by a sole remaining director so
elected. If there are no directors in office, then an election of directors may
be held in the manner provided by statute. If, at the time of filling any
vacancy or any newly created directorship, the directors then in office shall
constitute less than a majority of the whole Board (as constituted immediately
prior to any increase), the Delaware Court of Chancery may, upon application of
any stockholder or stockholders holding shares entitling such holders to cast at
least ten percent of the total number of the votes entitled to be cast by the
holders of all shares at the time outstanding having the right to vote for
directors, summarily order an election to be held to fill any such vacancies or
newly created directorships, or to replace the directors chosen by the directors
then in office. When one or more directors shall resign from the Board,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office as
provided in this Section in the filling of other vacancies.
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Section 12. Removal of Directors. Except as otherwise provided in the
Restated Certificate of Incorporation, or in these By-Laws, any director may be
removed, either with or without cause, at any time, by the affirmative vote of
the holders of record of shares entitled to cast a majority of the votes
entitled to be cast by the issued and outstanding stock entitled to vote for the
election of directors of the Corporation given at a special meeting of the
stockholders called and held for the purpose; provided, however, that whenever
the holders of any class or series are entitled to elect one or more directors
by the provisions of the Restated Certificate of Incorporation the foregoing
provision shall apply, in respect to the removal without cause of a director or
directors so elected, to the vote of the holders of the outstanding shares of
that class or series and not to the vote of the outstanding shares as a whole;
and the vacancy in the Board caused by any removal may be filled by such
stockholders at such meeting, or, if the stockholders shall fail to fill such
vacancy, as in these By-Laws provided.
Section 13. Compensation. The Board shall have authority to fix the
compensation, including fees and reimbursement of expenses, of directors for
services to the Corporation in any capacity, provided, no such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
Section 14. Action Without Meeting. Any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or Committee.
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ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
Section 1. Executive and other Committees. The Board may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of two or more of the directors of the
Corporation. The Board 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. Any such committee, to the extent provided in the
resolution shall have and may exercise the powers of the Board 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; provided, however,
that in the absence or disqualification of any member of such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he, she or they constitute a quorum,
may unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Each committee shall keep
written minutes of its proceedings and shall report such minutes to the Board
when required. All such proceedings shall be subject to revision or alteration
by the Board; provided, however, that third parties shall not be prejudiced by
such revision or alteration.
Section 2. General. A majority of any committee may determine its
action and fix the time and place of its meetings, unless the Board shall
otherwise provide. Notice of such meetings shall be given to each member of the
committee in the manner provided for in Section 7 of Article II. The Board shall
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have any power at any time to fill vacancies in, to change the membership of, or
to dissolve any such committee. Nothing herein shall be deemed to prevent the
Board from appointing one or more committees consisting in whole or in part of
persons who are not directors of the Corporation; provided, however, that no
such committee shall have or may exercise any authority of the Board.
ARTICLE IV
OFFICERS
Section 1. Number and Qualifications. The officers of the Corporation
shall include the President, one or more Vice Presidents (one or more of whom
may be designated an Executive Vice President or a Senior Vice President), the
Treasurer and the Secretary. Any two or more offices may be held by the same
person, except the offices of President and Secretary. Such officers shall be
elected, from time to time, by the Board, each to hold office until the meeting
of the Board following the next annual meeting of the stockholders, or until his
or her successor shall have been duly elected and shall have qualified, or until
his or her death, or until he or she shall have resigned, or have been removed,
as hereinafter provided in these By-Laws. The Board may, from time to time,
elect or delegate to the President the power to appoint such other officers
(including one or more Assistant Vice Presidents, one or more Assistant
Treasurers and one or more Assistant Secretaries), and such agents, as may be
necessary or desirable for the business of the Corporation. Such other officers
and agents shall have such duties and shall hold their offices for such terms as
may be prescribed by the Board or by the appointing authority.
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Section 2. Resignations. Any officer of the Corporation may resign at
any time by giving written notice of his or her resignation to the Board, the
President or the Secretary. 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; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
Section 3. Removal. Any officer or agent of the Corporation may be
removed either with or without cause at any time by the vote of the majority of
the entire Board at any meeting of the Board or, except in the case of an
officer or agent elected or appointed by the Board, the President.
Section 4. Vacancies. A vacancy in any office, whether arising from
death, resignation, removal or any other cause, may be filled for the unexpired
portion of the term of the office which shall be vacant in the manner prescribed
in these By-Laws for the regular election or appointment to such office.
Section 5. President. The President shall be the Chief Executive
Officer of the Corporation. He or she shall generally supervise the management
of the business of the Corporation, shall direct the senior and other officers
reporting to him and shall see that their duties are properly performed. The
President shall perform such other duties as may, from time to time, be assigned
by the Board.
Section 6. Vice Presidents. The Executive Vice President(s), the
Senior Vice President(s) and each Vice President shall have such powers and
perform all such duties as, from time to time, may be assigned to them by the
Board, or the President.
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Section 7. The Treasurer. The Treasurer shall:
(a) have charge and custody of, and be responsible for, all
funds and securities of the Corporation;
(b) keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and have control of all
books of account of the Corporation;
(c) cause all moneys and other valuables to be deposited to the
credit of the Corporation in such depositories as may be designated by the
Board;
(d) receive, and give receipts for, moneys due and payable to
the Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the
investment of its funds as ordered or authorized by the Board, taking proper
vouchers therefor;
(f) render to the President and the Board, whenever the Board
may require, an account of the financial condition of the Corporation; and
(g) in general, perform all the duties incident to the office
of Treasurer and such other duties as, from time to time, may be assigned by the
Board or the President.
Section 8. The Secretary. The Secretary shall:
(a) keep or cause to be kept in one or more books provided for
the purpose, the minutes of all meetings of the Board, the committees of the
Board and the stockholders;
(b) see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law;
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(c) be custodian of the record and the seal of the Corporation
and affix and attest the seal to all stock certificates of the Corporation
(unless the seal of the Corporation on such certificates shall be a facsimile,
as hereinafter provided) and affix and attest the seal to all other documents to
be executed on behalf of the Corporation under its seal;
(d) see that the books, reports, statements, certificates and
other documents and records required by law to be kept and filed are properly
kept and filed; and
(e) in general, perform all the duties incident to the office
of Secretary and such other duties as, from time to time, may be assigned by the
Board or the President.
Section 9. Officers' Bonds or Other Security. If required by the
Board, any officer of the Corporation shall give a bond or other security for
the faithful performance of his duties, in such amount and with such surety or
sureties as the Board may require.
Section 10. Compensation. The compensation of the officers of the
Corporation for their services as such officers shall be fixed, from time to
time, by the Board; provided, however, that the Board may delegate to the
President the power to fix the compensation of officers and agents appointed by
him. An officer of the Corporation shall not be prevented from receiving
compensation by reason of the fact that he or she is also a director of the
Corporation, but any such officer who shall also be a director shall not have
any vote in the determination of the amount of compensation paid to him or her.
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ARTICLE V
INDEMNIFICATION
Section 1. Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director or officer of another corporation or of
a partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a director
or officer or in any other capacity while serving as a director or officer shall
be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than permitted prior thereto), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith and such indemnification shall continue as to
an indemnitee who has ceased to be a director or officer and shall inure to the
benefit of the indemnitee's heirs, executors and administrators; provided,
however, that the Corporation shall indemnify any such indemnitee in connection
with a proceeding (or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the Board.
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Section 2. Right to Advancement of Expenses. The right to
indemnification conferred to in Section 1 of this Article V shall include the
right to be paid by the Corporation the expenses incurred in defending any
proceeding for which such right to indemnification is applicable in advance of
its final disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law requires, an advancement
of expenses incurred by an indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking, by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that such indemnitee is not entitled to be indemnified
for such expenses under this Article V or otherwise.
Section 3. Non-Exclusivity of Rights. The rights to indemnification
and to the advancement of expenses conferred in this Article V shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, the Restated Certificate of Incorporation, By-Law, agreement,
vote of stockholders or disinterested directors or otherwise.
Section 4. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
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Section 5. Indemnification of Employees and Agents of the Corporation.
The Corporation may, to the extent authorized from time to time by the Board,
grant rights to indemnification and to the advancement of expenses to any
employee or agent of the Corporation or, if serving at the request of the
Corporation, as an employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan, to the fullest extent of the provisions of this Article V
with respect to the indemnification and advancement of expenses of directors and
officers of the Corporation.
ARTICLE VI
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 1. Execution of Contracts. Except as otherwise required by
statute, the Restated Certificate of Incorporation or these By-Laws, any
contracts or other instruments may be executed and delivered in the name and on
behalf of the Corporation by such officer or officers (including any assistant
officer) of the Corporation as the Board may, from time to time, direct. Such
authority may be general or confined to specific instances as the Board may
determine. Unless authorized by the Board or expressly permitted by these
By-Laws, an officer or agent or employee shall not have any power or authority
to bind the Corporation by any contract or engagement or to pledge its credit or
to render it pecuniarily liable for any purpose or to any amount.
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Section 2. Loans. Unless the Board shall otherwise determine, the
President or any Executive Vice President may effect loans and advances at any
time for the Corporation from any bank, trust company or other institution or
from any firm, corporation or individual, and for such loans and advances may
make, execute and deliver promissory notes, bonds or other certificates or
evidences of indebtedness of the Corporation, but no officer or officers shall
mortgage, pledge, hypothecate or transfer any securities or other property of
the Corporation, except when authorized by the Board.
Section 3. Checks, Drafts, etc. All checks, drafts, bills of exchange
or other orders for the payment of money out of the funds of the Corporation,
and all notes or other evidences of indebtedness of the Corporation, shall be
signed in the name and on behalf of the Corporation by such persons and in such
manner as shall, from time to time, be authorized by the Board.
Section 4. Deposits. All funds of the Corporation not otherwise
employed shall be deposited, from time to time, to the credit of the Corporation
in such banks, trust companies or other depositories as the Board may, from time
to time, designate or as may be designated by an officer or officers of the
Corporation to whom such power of designation may, from time to time, be
delegated by the Board. For the purpose of deposit and for the purpose of
collection for the account of the Corporation, checks, drafts and other orders
for the payment of money which are payable to the order of the Corporation may
be endorsed, assigned and delivered by an officer or agent of the Corporation,
or in such other manner as the Board may determine by resolution.
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Section 5. General and Special Bank Accounts. The Board may, from time
to time, authorize the opening and keeping of general and special bank accounts
with such banks, trust companies or other depositories as the Board may
designate or as may be designated by an officer or officers of the Corporation
to whom such power of designation may, from time to time, be delegated by the
Board. The Board may make such special rules and regulations with respect to
such bank accounts, not inconsistent with the provisions of these By-Laws, as it
may deem expedient.
Section 6. Proxies in Respect of Securities of Other Corporations.
Unless otherwise provided by resolution adopted by the Board of Directors, the
President or a Vice President or the Treasurer may, from time to time, appoint
an attorney or attorneys or agent or agents, of the Corporation, in the name and
on behalf of the Corporation to cast the votes which the Corporation may be
entitled to cast as the holder of stock or other securities in any other
corporation any of whose stock or other securities may be held by the
Corporation, at meetings of the holders of the stock or other securities of such
other corporation, or to consent, in writing, in the name of the Corporation as
such holder, to any action by such other corporation, and may instruct the
person or persons so appointed as to the manner of casting such votes or giving
such consent, and may execute or cause to be executed in the name and on behalf
of the Corporation and under its corporate seal, or otherwise, all such written
proxies or other instruments as he may deem necessary or proper in the premises.
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ARTICLE VII
SHARES, ETC.
Section 1. Stock Certificates. Each holder of stock of the Corporation
shall be entitled to have a certificate, in such form as shall be approved by
the Board, certifying the number of shares of stock of the Corporation owned by
such holder. The certificates representing shares of stock shall be signed in
the name of the Corporation by the Chairman of the Board, the President or a
Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer and sealed with the seal of the Corporation (which
seal may be facsimile, engraved or printed); provided, however, that where any
such certificate is countersigned by a transfer agent other than the Corporation
or its employee, or is registered by a registrar other than the Corporation or
one of its employees, the signature of the officers of the Corporation upon such
certificates may be facsimiles, engraved or printed. In case any officer who
shall have signed or whose facsimile signature has been placed upon such
certificates shall have ceased to be such officer before such certificates shall
be issued, they may nevertheless be issued by the Corporation with the same
effect as if such officer were still in office at the date of their issue.
Section 2. Books of Account and Record of Stockholders. The books and
records of the Corporation may be kept at such places within or without the
State of Delaware, as the Board may, from time to time, determine. The stock
record books and the blank stock certificate books shall be kept by the
Secretary or by any other officer or agent designated by the Board.
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Section 3. Transfer of Shares. Transfers of shares of stock of the
Corporation shall be made on the stock records of the Corporation only upon
authorization by the registered holder thereof, or by his or her attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary or with a transfer agent or transfer clerk, and on surrender of the
certificate or certificates for such shares properly endorsed or accompanied by
a duly executed stock transfer power and the payment of all taxes thereon.
Except as otherwise provided by law, the Corporation shall be entitled to
recognize the exclusive right of a person in whose name any share or shares
stand on the record of stockholders as the owner of such share or shares for all
purposes, including, without limitation, the rights to receive dividends or
other distributions and to vote as such owner, and the Corporation may hold any
such stockholder of record liable for calls and assessments and the Corporation
shall not be bound to recognize any equitable or legal claim to or interest in
any such share or shares on the part of any other person whether or not it shall
have express or other notice thereof. Whenever any transfers of shares shall be
made for collateral security and not absolutely and both the transferor and
transferee request the Corporation to do so, such fact shall be stated in the
entry of the transferee.
Section 4. Regulations. The Board 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. It may appoint, or authorize any officer or officers
to appoint, one or more transfer agents or one or more transfer clerks and one
or more registrars and may require all certificates for shares of stock to bear
the signature or signatures of any of them.
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Section 5. Lost, Destroyed or Mutilated Certificates. The holder of
any certificate representing shares of stock of the Corporation shall
immediately notify the Corporation of any loss, destruction or mutilation of
such certificate, and the Corporation may issue a new certificate of stock in
the place of any certificate theretofore issued by it which the owner thereof
shall allege to have been lost, stolen or destroyed or which shall have been
mutilated, and the Board may, in its discretion, require such owner or his or
her legal representative to give to the Corporation a bond in such sum, limited
or unlimited, and in such form and with such surety or sureties as the Board, in
its absolute discretion, shall determine, to indemnify the Corporation against
any claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate, or the issuance of a new certificate.
Anything herein to the contrary notwithstanding, the Board, in its absolute
discretion, may refuse to issue any such new certificate, except pursuant to
legal proceedings under the laws of the State of Delaware.
Section 6. Stockholder's Right of Inspection. Any person who shall
have been a stockholder of record of the Corporation for at least six months
immediately preceding his or demand, or any person holding, or thereunto
authorized by the holders of , at least five percent of the outstanding shares
of stock of the Corporation, shall, in person or by attorney or other agent,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose the
Corporation's stock ledger, a list of its stockholders, and its other books and
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records, and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent shall be the person who seeks the
right to inspection, the demand under oath shall be accompanied by a power of
attorney or such other writing which authorizes the attorney or other agent to
so act on behalf of the stockholder. The demand under oath shall be directed to
the Corporation at its registered office in the State of Delaware or at its
principal place of business.
Section 7. Fixing of Record Date. In order that the Corporation may
determine the stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders entitled to exercise
any rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty days
prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board adopts the resolution relating thereto.
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ARTICLE VIII
OFFICES
Section 1. Registered Office. The registered office of the Corporation
in the State of Delaware shall be at 15 East North Street, Dover, Delaware or
such other office within the State of Delaware as the Board of Directors may
determine, from time to time.
Section 2. Other Offices. The Corporation may also have an office or
offices other than said principal office at such place or places, either within
or without the State of Delaware, as the Board shall, from time to time,
determine or the business of the Corporation may require.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall be determined by the Board.
ARTICLE X
SEAL
The Board shall provide a corporate seal, which shall be in the form
of two concentric circles and bear the name of the Corporation and the words and
figures "Corporate Seal 1967, Delaware".
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ARTICLE XI
AMENDMENTS
These By-Laws may be amended or repealed, or new By-Laws may be
adopted, at any annual or special meeting of the stockholders, by a majority of
the total votes of the stockholders or when stockholders are required to vote by
class by a majority of the total votes of the appropriate class, present in
person or represented by proxy and entitled to vote on such action; provided,
however, that the notice of such meeting shall have been given as provided in
these By-Laws, which notice shall mention that amendments or repeal of these
By-Lays, or the adoption of new By-Laws, is one of the purposes of such meeting.
These By-Laws may also be amended or repealed, or new By-Laws may be adopted, by
the Board at any meeting thereof; provided, however, that notice of such meeting
shall have been given as provided in these By-Laws, which notice shall mention
that amendment or repeal of the By-Laws, or the adoption of new By-Laws, is one
of the purposes of such meeting; and provided, further, that By-Laws adopted by
the Board may be amended or repealed by the stockholders as hereinabove
provided.
Amended 2/10/99
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