As Amended 7/29/98
Exhibit 3(ii)
BY-LAWS
OF
ORION CAPITAL CORPORATION
(a Delaware corporation)
ARTICLE I.
Offices
Section 1. REGISTERED OFFICE. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. OTHER OFFICES. 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.
ARTICLE II.
Meetings of Stockholders
Section 1. PLACE OF MEETINGS. Meetings of stockholders shall be held at
such time and such place, within or without the State of Delaware, as shall be
stated in the notice of the meeting or a duly executed waiver of notice thereof.
Section 2. ANNUAL MEETINGS. The annual meeting of stockholders shall be
held at such date and time as shall be designated from time to time by the Board
of Directors and stated in the notice of the meeting, for the purpose of
electing a Board of Directors, and for the transaction of such other business as
may properly be brought before the meeting.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Restated Certificate of Incorporation, may be called by the Chairman of the
Board and shall be called by the Chairman of the Board 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, and the business
transacted at any such special meeting of stockholders shall be limited to the
purposes set forth in the notice.
Section 4. NOMINATIONS; INTRODUCTION OF BUSINESS AT A MEETING OF
STOCKHOLDERS.
(a) Only persons who are nominated in accordance with the procedures
set forth in these By-Laws shall be eligible to serve as directors. Nominations
of persons for election to the Board of Directors of the Corporation may be made
at a meeting of stockholders (i) by or at the direction of the Board of
Directors or (ii) by any stockholder of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this Section 4(a), who
shall be entitled to vote for the election of directors at the meeting and who
complies with the notice procedures set forth in this Section 4(a). Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice shall be delivered to
or mailed and received at the principal executive offices of the Corporation not
1
less than sixty (60) days nor more than ninety (90) days prior to the meeting,
regardless of any postponement, deferral or adjournment of that meeting to a
later date; provided, however, that in the event that less than seventy (70)
days' notice or public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 10th day following the day on which such
notice of the date of the meeting or such public disclosure was made. Such
stockholder's notice shall contain the written consent of each proposed nominee
to serve as a director if so elected and shall set forth (i) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director and as to each person, acting alone or in conjunction with one or more
other persons as a partnership, limited partnership, syndicate or other group,
who participates or is expected to participate in making such nomination or in
organizing, directing or financing such nomination or solicitation of proxies to
vote for the nominee (w) the name, age, residence address, and business address
of each proposed nominee and of each such person; (x) the principal occupation
or employment, and the name, type of business and address of the corporation or
other organization in which such employment is carried on, of each proposed
nominee and of each such person; (y) the amount of stock of the Corporation
owned beneficially, either directly or indirectly, by each proposed nominee and
each such person; and (z) a description of any arrangement or understanding of
each proposed nominee and of each such person with each other or any other
person regarding future employment or any future transaction to which the
Corporation will or may be a party, and (ii) as to the stockholder giving the
notice (x) the name and address, as they appear on the Corporation's books, of
such stockholder and (y) the class and number of shares of the Corporation which
are beneficially owned by such stockholder. At the request of the Board of
Directors, any person nominated by the Board of Directors for election as a
director shall furnish to the Secretary of the Corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. Subject to the rights of holders of preferred stock, no person
shall be eligible to serve as a director of the Corporation unless nominated in
accordance with the procedures set forth in the By-Laws. The chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures prescribed by the
By-Laws, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded. Notwithstanding the foregoing
provisions of this Section 4(a), a stockholder shall also comply with all
applicable requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder with respect to the matters set forth in
this Section.
(b) At an annual meeting of the stockholders, only such business shall
be conducted 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 is a stockholder of record at the time of giving of notice
provided for in this Section 4(b), who shall be entitled to vote at such annual
meeting and who complies with the notice of procedures set forth in this Section
4(b). For business 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 sixty (60) days nor more than ninety (90) days prior
to the annual meeting, regardless of any postponement, deferral or adjournment
of that meeting to a later date; provided, however, that in the event that less
than seventy (70) days' notice or prior public disclosure of the date of the
annual meeting is given or made to stockholders, notice by the stockholder to be
timely must be received no later than the close of business on the 10th day
following the day on which such notice of the date of the annual meeting was
mailed or 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 business 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
2
Corporation's books, of the stockholder proposing such business, (iii) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder and (iv) any material interest of the stockholder in such business.
Notwithstanding anything in the By-Laws to the contrary, no business shall be
conducted at the stockholder meeting except in accordance with the procedures
set forth in this section 4(b).The chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting and in accordance with the provisions of the By-Laws,
and if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this Section 4(b), a stockholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder with respect
to the matters set forth in this Section.
Section 5. STOCKHOLDER LISTS. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten (10) days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, showing the address of and
the number of shares registered in the name of each stockholder. Such list shall
be open to examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period not less than ten (10)
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 be produced and kept at the time and place of election during the whole
time thereof and may be inspected by any stockholder who is present.
Section 6. QUORUM AND ADJOURNMENT. The holders of a majority of the
stock issued and outstanding and entitled to vote thereat, 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
statute or by the Restated Certificate of Incorporation. If, however, such
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting, at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally noticed. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new date is set for the determination
of the stockholders entitled to vote at the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote
at the meeting.
Section 7. VOTING. When a quorum is present at any meeting, in all
matters other than the election of Directors, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy, and entitled to vote, shall decide any question brought before such
meeting, or unless the question is one upon which by express provision of
statute or the Restated Certificate of Incorporation a different vote is
required, in which case such express provision shall govern and control the
decision of such question. Directors shall be elected by a plurality of the
votes of the shares present in person or represented by proxy at such meeting
and entitled to vote on the election of directors.
Section 8. VOTING AND PROXIES. At all meetings of stockholders, every
stockholder having the right to vote shall be entitled to vote in person, or by
proxy appointed by an instrument in writing subscribed by such stockholder and
bearing a date not more than one (1) year prior to said meeting, unless said
instrument shall provide for a longer period. Each stockholder entitled to vote
3
at such meeting shall have one vote for each share of stock entitled to vote and
registered in his name on the books of the Corporation. Except as provided by
statute, the vote at any meeting of stockholders need not be by ballot unless so
directed by the chairman of the meeting.
Section 9. STOCK LEDGER. The original or duplicate stock ledger shall be
the only evidence as to who are the stockholders entitled to examine the list
required under Article II, Section 5 of these By-Laws or the books of the
Corporation, or to vote in person or by proxy at any meeting of the
stockholders.
Section 10. NOTICE. Written or printed notice of each meeting of the
stockholders, whether annual or special, stating the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes thereof,
shall be given to each stockholder of record of the Corporation entitled to vote
at such meeting, either personally by mail, not less than ten (10) days or more
than sixty (60) days prior to the meeting.
Section 11. 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 any
adjournment thereof, the Board of Directors may fix a record date, which shall
not precede the date such record date is fixed and shall not be more than sixty
(60) days nor less than ten (10) days before the date of such meeting. If no
record date is fixed, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be the close of business
on the day next preceding the day on which notice is given. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
(b) 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 authorized
or take corporate action by written consent shall, by written notice to the
Secretary, request the Board of Directors to fix a record date. 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
of 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 thereafter 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 stockholders' meetings are
recorded, to the attention of the Secretary of the Corporation. 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
4
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 at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action.
Section 12. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. In the event of
the delivery to the Corporation of a written consent or consents purporting to
authorize or take corporate action and/or related revocations (each such written
consent and any revocation thereof is referred to in this Section 12 as a
"Consent"), the Secretary of the Corporation shall provide for the safekeeping
of such Consents and shall as soon as practicable thereafter conduct such
reasonable investigation as he or she deems necessary or appropriate for the
purpose of ascertaining the validity of such Consents and all matters incident
thereto, including, without limitation, whether the holders of shares having the
requisite voting power to authorize or take the action specified in the Consents
have given consent; provided, however, that if the corporate action to which the
Consents relate is the removal or election of one or more members of the Board
of Directors, the Secretary of the Corporation shall designate an independent,
qualified inspector with respect to such Consents and such inspector shall
discharge the functions of the Secretary of the Corporation under this Section
12. If after such investigation the Secretary or the inspector (as the case may
be) shall determine that any action purportedly taken by such Consents has been
validly taken, 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 Consents shall be filed with such records. In conducting
the investigation required by this Section 12, the Secretary or the inspector
may, at the expense of the Corporation, retain to assist them special legal
counsel and any other necessary or appropriate professional advisors, and such
other personnel as they may deem necessary or appropriate.
ARTICLE III.
Directors
Section 1. NUMBER AND QUALIFICATION OF DIRECTORS. The number of directors
which shall constitute the whole Board shall not be less than five (5) nor more
than fifteen (15). The exact number shall be that number specified from time to
time by duly adopted resolutions of the Board. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2 of this
Article III, and each director shall hold office until his or her successor is
duly elected and qualified or until his or her earlier resignation or removal.
No individual may run for election or reelection to the Board or be appointed a
director from and after the date he or she reaches 70 years of age.
Section 2. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Vacancies caused by
death, resignation, removal or otherwise, and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
the stockholders of the Corporation and each director so chosen shall hold
office until the next annual election of directors and until his or her
successor is duly elected and qualified or until his or her earlier resignation
or removal.
5
Section 3. POWERS. The business of the Corporation shall be managed by or
under the direction of its Board of Directors which may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute
or by the Restated Certificate of Incorporation or by these By-Laws directed or
required to be exercised or done by the stockholders.
Section 4. PLACE OF MEETINGS. The Board of Directors of the Corporation may
hold meetings, both regular and special, within or without the State of
Delaware.
Section 5. ORGANIZATIONAL MEETING. The organizational meeting of each
newly elected Board of Directors shall be held immediately after the annual
meeting of stockholders or at such time and place as shall be designated by the
Chairman of the Board or as may otherwise be fixed by the vote of the
stockholders at the annual meeting and if such meeting is held immediately after
the annual meeting of stockholders or if a majority of the whole Board shall be
present, no notice of such meeting shall be necessary to the newly elected
directors in order legally to constitute the meeting provided a quorum shall be
present; or they may meet at such time and place as shall be specified in a
notice given as hereinafter provided for special meetings of the Board of
Directors or as shall be specified in a written waiver signed by all of the
directors.
Section 6. REGULAR MEETINGS. Regular meetings of the Board of Directors may
be held without notice at such time and at such place as shall from time to time
be determined by the Board.
Section 7. SPECIAL MEETINGS. Special meetings of the Board of Directors
may, at any time and for any purpose permitted by law, either be called by the
Chairman of the Board or by the Secretary if the Secretary shall have received
written request therefor from any two directors, which meetings shall be held at
the time and place designated by the person or persons calling the meeting.
Notice of the time, place and purpose of such meeting shall be given to the
directors by the Secretary, or in case of his or her absence, refusal or
inability to act, by any other officer. Any such notice may be given by mail, by
telegraph, by telephone, by personal service or any means thereby as to
different directors. If the notice is by mail, then it shall be deposited in the
mail at least forty-eight hours before the time of the meeting; if by telegram,
by delivery of the message to the telegraph company at least twelve (12) hours
before the time of the meeting; if by telephone or personal service, at least
twelve (12) hours before the time of the meeting.
Section 8. QUORUM. At all meetings of the Board of Directors, a
majority of the whole Board shall 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 statute or by the Restated Certificate
of Incorporation or by these By-Laws. Any meeting of the Board of Directors may
be adjourned to meet again at a stated time and place. If a quorum shall not be
present at any meeting of the Board of Directors, a majority of the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
6
Section 9. ACTION WITHOUT A MEETING. Unless otherwise restricted by the
Restated Certificate of Incorporation or these By-Laws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board or
of such 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.
Section 10. MEETINGS BY CONFERENCE TELEPHONE. Unless otherwise restricted
by the Restated Certificate of Incorporation or these By-Laws, members of the
Board of Directors or any committee thereof may participate in a meeting of such
Board or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting in this manner shall constitute
presence in person at such meeting.
Section 11. COMMITTEES. There are hereby established an Executive
Committee, an Audit and Information Services Committee, a Compensation and
Nomination Committee and a Finance and Investment Committee, each of which shall
have the powers and functions set forth in the following paragraphs of this
Section 11 and such additional powers as may be delegated to it by the Board of
Directors. The Board of Directors may, by resolution passed by a majority of the
whole Board, establish one or more additional standing committees or special
committees of the Board of Directors. Each committee of the Board of Directors
shall have such powers and functions as may be delegated to it by the Board of
Directors, except as limited by the General Corporation Law of the State of
Delaware. The Board of Directors may abolish any committee established by or
pursuant to this Section 11 as it may deem advisable. Each such committee shall
consist of three or more members, the exact number to be determined from time to
time by the Board of Directors. Designation of members of each such committee
shall be made by the Board of Directors. The Board may also 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 the absence or
disqualification of any member of any such committee or committees, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or she 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. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
The Executive Committee, during intervals between meetings of the Board
of Directors, shall have and may exercise, in the best interests of the
Corporation, all of the powers of the Board of Directors in the management and
control of the business of the Corporation, except as limited by the General
Corporation Law of the State of Delaware and except with respect to matters
within the powers of the Audit and Information Services Committee, the
Compensation and Nomination Committee or the Investment Committee. The powers of
7
the Executive Committee shall be exercised in a manner which is consistent with
any specific directions of the Board of Directors as to the conduct of the
Corporation's affairs. All action taken by the Executive Committee shall be
reported to the Board of Directors at the next meeting of the Board following
the Executive Committee meeting at which such action was taken.
The Audit and Information Services Committee, a majority of which shall
not be employees of the Corporation, shall confer periodically with the
Corporation's independent accountants in respect of the preparation of the
Corporation's financial statements and the maintenance of proper financial
records and controls, shall make such recommendations to the Board of Directors
with respect thereto as it shall deem advisable and shall bring to the attention
of the Board of Directors the criticisms and recommendations of such independent
accountants. The Audit and Information Services Committee shall also be
empowered to periodically review the adequacy, accuracy and security of the
Corporation's data processing and information systems and establish such
standards and procedures with respect thereto as the Committee deems necessary
and appropriate. The Audit Committee and Information Services Committee shall
also perform such other functions as may be delegated to it by the Board of
Directors.
The Compensation and Nomination Committee shall consist entirely of
members who are not officers or employees of the Corporation. The Compensation
and Nomination Committee shall be empowered to review the amount and terms of
compensation paid to the principal executive officers of the Corporation and to
the principal executive officers of the Corporation's subsidiaries, and to
authorize, or to recommend to the Board of Directors of the Corporation and such
subsidiaries the authorization of such salary levels and employment agreements
with respect to such officers as such Committee may deem appropriate. The
Compensation and Nomination Committee shall also be empowered to authorize, or
recommend to the Board of Directors the authorization of such general incentive
compensation arrangements, including any bonus, stock option or special
compensation plans for the Corporation, as such Committee may deem appropriate.
The Compensation and Nomination Committee shall also recommend to the Board of
Directors annually a slate of nominees to the Board of Directors to be proposed
to the shareholders, and, from time to time, to recommend persons to fill any
vacancy on the Board, such recommendation to be based on general criteria (as
established by the full Board of Directors) for the selection of members of the
Board. The Compensation and Nomination Committee shall also perform such other
functions as may be delegated to it by the Board of Directors.
The Finance and Investment Committee shall be empowered to establish and
approve or recommend to the Board of Directors the adoption of the Corporation's
investment policies and to review such policies for conformance to applicable
federal and state laws and regulations and for consistency with the
Corporation's objectives. The Finance and Investment Committee shall also be
empowered to review the Corporation's portfolio for compliance with approved
policies and to approve, where appropriate, exceptions to defined policies. The
Corporation's Chief Investment Officer shall serve as a non-voting member of the
Finance and Investment Committee. The Finance and Investment Committee shall
also perform such other functions as may be delegated to it by the Board of
Directors.
Section 12. REMUNERATION. The directors may be paid for their expenses,
if any, including but not limited to those incurred in connection with
attendance at each meeting of the Board of Directors, and may be paid a fixed
sum for attendance at each meeting of the Board of Directors, a stated salary, a
fee as such director or any combination thereof. No such payment shall preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
8
ARTICLE IV.
Notices
Section 1. MANNER OF NOTICES. Whenever under the provisions of statute
or of the Restated Certificate of Incorporation or of these By-Laws notice is
required to be given to any director, committee member, officer or stockholder,
it shall not be construed to mean personal notice, but such notice may be given,
in the case of stockholders, in writing, by mail, by depositing the same in a
post office or letter box, in a postpaid, sealed wrapper, addressed to such
stockholder, at such address as appears on the books of the Corporation, or, in
default of other address, to such stockholder at the General Post Office in the
City of Wilmington, Delaware, and, in the case of directors, committee members
and officers, by telephone or by mail or telegram to the last business address
known to the Secretary, and such notice shall be deemed to be given at the time
when the same shall be thus mailed or telegraphed or telephoned.
Section 2. WAIVER. Whenever any notice is required to be given under the
provisions of statute or of the Restated Certificate of Incorporation or of
these By-Laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of any and all objections to the date, time, and purposes of
such meeting, and the sufficiency of notice thereof, except when the person
attends a meeting for the purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE V.
Officers
Section 1. OFFICERS. The officers of the Corporation shall be appointed
by the Board of Directors and shall be a Chairman of the Board of Directors, a
President, a Vice Chairman of the Board of Directors who shall preside over
meetings of the Board of Directors in the absence of the Chairman, one or more
Vice Presidents (which term may include Executive Vice President, Senior Vice
President and any other title approved by the Board of Directors), a Secretary
and a Treasurer or a Chief Financial Officer who serves as the Treasurer. The
Board of Directors may also choose one or more assistant officers. Any two or
more offices may be held by the same person except for the offices of Chairman
of the Board and Secretary, which shall be held by two individuals.
Section 2. ELECTION. The Board of Directors at its first organizational
meeting after each annual meeting of stockholders, shall choose a Chairman of
the Board of Directors, a President, a Vice Chairman of the Board of Directors,
one or more Vice Presidents as set forth in Article V, Section 1, a Secretary
and a Treasurer.
Section 3. APPOINTMENT OF SUBORDINATE OFFICERS. The Board of Directors may
appoint or empower the Chairman of the Board to appoint, such other officers and
agents as deemed 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 of Directors.
Section 4. SALARIES. The salaries of the Chairman of the Board, President,
all Vice Presidents, the Secretary and the Treasurer of the Corporation shall be
fixed by the Board of Directors.
9
Section 5. TERM OF OFFICE: REMOVAL AND RESIGNATION. After his or her
appointment to an office of the Corporation an individual shall hold such office
until a new slate of officers is appointed by the Board of Directors at an
organizational meeting thereof, or until any other time that his or her
successor is chosen and has qualified, or until his or her earlier removal or
resignation. Any officer appointed by the Board of Directors may be removed at
any time by the affirmative vote of a majority of the entire Board of Directors.
Any officer at any time may resign from any or all of the offices he or she
holds, and his or her resignation may be either oral or written. Unless
otherwise specified in the form of resignation, the acceptance of the
resignation shall not be necessary to make it effective. Any vacancy occurring
in any office of the Corporation may be filled by appointment by the Board of
Directors.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be the
Chief Executive Officer of the Corporation with the powers of general manager,
and he or she shall have supervision over and may exercise general executive
powers concerning all of the operations and business of the Corporation, with
the authority from time to time to delegate to other officers such executive and
other powers and duties as he or she may deem advisable. He or she shall preside
at all meetings of the stockholders and the Board of Directors.
Section 7. THE PRESIDENT. The President shall, in the absence of the
Chairman of the Board and the Vice-Chairman of the Board, preside at all
meetings of the stockholders and the Board of Directors. The President shall
have the same power as the Chairman of the Board to execute and deliver such
certificates, contracts, bonds, mortgages, notes and other instruments and
documents for and on behalf of the Corporation and under the seal of the
Corporation where so required. He shall have general responsibility for the
management of the operations of the Corporation and shall perform such duties,
in that regard, as are incident to his office or properly required of him by the
Chairman of the Board or by the Board of Directors.
Section 8. VICE PRESIDENT. The Vice President or Vice Presidents, as the
case may be, shall perform such duties and have such powers as the Board of
Directors may from time to time prescribe.
Section 9. SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all of the
proceedings of the meetings of the Corporation and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
committees when required. He or she shall give, or cause to be given, notice of
all meetings of the stockholders and special meetings of the Board of Directors,
and shall perform such other duties as may be prescribed by the Board of
Directors or Chairman of the Board and have custody of the corporate seal of the
Corporation and he or she, or an Assistant Secretary, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by his or her signature or by the signature of such Assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
or her signature.
Section 10. ASSISTANT SECRETARY. The Assistant Secretary or, if there
be more than one, the Assistant Secretaries, in the order determined by the
Board of Directors (or in the absence of any such determination, then in the
order of their appointment), shall, in the absence or disability of the
Secretary or in the event of his or her inability or refusal to act, perform the
duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
10
Section 11. TREASURER. The Treasurer shall have the 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 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.
Section 12. DISBURSEMENT OF FUNDS. The Treasurer shall disburse the funds
of the Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Chairman of the Board
and the Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of his or her transactions as Treasurer and of
the financial condition of the Corporation.
Section 13. ASSISTANT TREASURER. The Assistant Treasurer or, if there shall
be more than one, the Assistant Treasurers, in the order determined by the Board
of Directors (or in the absence of any such determination, then in the order of
their appointment), shall, in the absence of the Treasurer or in the event of
his or her inability or refusal to act, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
ARTICLE VI.
Certificates of Stock
Section 1. CERTIFICATES OF STOCK. Every holder of stock in the Corporation
shall be entitled to have a certificate certifying the number of shares owned by
him or her in the Corporation. Such certificate shall be signed by or in the
name of the Corporation by the Chairman of the Board or the President or a Vice
President and also signed by the Treasurer or an Assistant Treasurer, or the
Secretary, or an Assistant Secretary of the Corporation.
Section 2. SIGNATURES. Any or all of the signatures on a certificate may be
a facsimile. In case any officer, transfer agent, or registrar who 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 or she
were such officer, transfer agent, or registrar at the date of issue.
Section 3. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
11
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his or her legal representative, to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate or
certificates alleged to have been lost, stolen or destroyed.
Section 4. TRANSFERS OF STOCK. Upon surrender to the Corporation or a
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, to cancel the old certificate and to record the
transaction upon its books.
Section 5. REGISTERED STOCKHOLDERS. The Corporation shall be entitled to
treat the person registered on its books as the owner of any share or shares of
stock as the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to, or interest in, such share or shares
on the part of any other person, whether or not it shall have actual or other
notice thereof, except as otherwise provided by applicable law.
ARTICLE VII.
General Provisions
Section 1. DIVIDENDS. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Restated Certificate of Incorporation, if any,
may be declared by the Board of Directors at any regular or special meeting,
pursuant to applicable law. Dividends may be paid in cash, in property, or in
shares of the capital stock of the Corporation.
Section 2. CHECKS. All checks or demands for monies and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 3. FISCAL YEAR. The fiscal year of the Corporation shall be on a
calendar year basis unless otherwise fixed by resolution of the Board of
Directors.
Section 4. CORPORATE SEAL. The corporate seal shall have inscribed
thereon the name of the corporation and the words "Corporate Seal, Delaware."
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise. It shall not be necessary to the validity of
any instrument executed by any authorized official of the Corporation that the
execution of such instrument be evidenced by the corporate seal, and all
documents, instruments, contracts and writings of all kinds signed on behalf of
the Corporation by any authorized officer or officers thereof shall be as
effectual and binding on the Corporation without the corporate seal as if the
execution of the same had been evidenced by affixing the corporate seal thereto.
ARTICLE VIII.
Amendments
These By-Laws, or any of them, may be altered, amended or repealed, and
new By-Laws may be adopted either: (i) by the Board of Directors, by vote of a
majority of the directors present at any regular meeting of the Board and
without previous notice, or at any special meeting of the Board, provided that
notice of such proposed alteration, amendment, repeal or adoption of new By-Laws
is given in the notice of such special meeting, or by written consent without a
12
meeting signed by all directors; or (ii) by the stockholders, at any annual
meeting of stockholders and without previous notice, or at any special meeting
of stockholders, provided that notice of such proposed alteration, amendment,
repeal or adoption is given in the notice of special meeting.
ARTICLE IX.
Indemnification of Officers and Directors
Section 1. INDEMNITY FOR CERTAIN EXPENSES, JUDGMENTS, FINES AND
SETTLEMENTS. The Corporation shall indemnify and make whole any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he or she is or was a director, officer, employee or
agent of the Corporation subsequent to March 30, 1976, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
subsequent to March 30, 1976, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding if he or she
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to, the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit, or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendre or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in,
or not opposed to, the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
Section 2. INDEMNITY FOR CERTAIN DEFENSE AND SETTLEMENT EXPENSES --
COURT APPROVAL. The Corporation shall indemnify and make whole any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he or she is or was a director,
officer, employee or agent of the Corporation subsequent to March 30, 1976, or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise subsequent to March 30, 1976, against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
with the defense or settlement of such action or suit if he or she acted in good
faith and in a manner he or she reasonably believed to be in, or not opposed to,
the best interests of the Corporation, except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
Section 3. INDEMNITY FOR SUCCESSFUL DEFENSE OF CERTAIN MATTERS.
Notwithstanding the other provisions of this Article IX, to the extent that a
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
13
in Section 1 or 2 of this Article IX, or in defense of any claim, issue or
matter therein, he or she shall be indemnified and made whole against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith.
Section 4. DETERMINATION THAT STANDARD OF CONDUCT HAS BEEN MET. Any
indemnification under Sections 1 or 2 of this Article IX (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he or she has met the applicable
standard of conduct set forth in said Sections 1 or 2. Such determination shall
be made (a) by the Board of Directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding, or (b) if
such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (c) by the stockholders.
Section 5. PAYMENT OF EXPENSES IN ADVANCE. Expenses incurred by any person
who may have a right of indemnification under this Article IX in defending a
civil or criminal action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director, officer, employee or agent
to repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the Corporation as authorized in this Article IX.
Such expenses incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the Board of Directors deems appropriate.
Section 6. OTHER INDEMNIFICATION RIGHTS NOT AFFECTED BY THIS ARTICLE. The
indemnification and advancement of expenses provided by or granted pursuant to
this Article IX shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
By-Law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office.
Section 7. INSURANCE. Upon resolution passed by the Board of Directors,
the Corporation may purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her and incurred by him
or her in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify him or her
against such liability under the provisions of this Article IX or the General
Corporation Law of the State of Delaware, as amended.
Section 8. INDEMNIFICATION TO THE FULLEST EXTENT PERMITTED BY LAW. The
Corporation shall, to the fullest extent permitted by applicable law from time
to time in effect, indemnify any and all persons who are or were directors,
officers, employees or agents of this Corporation subsequent to March 30, 1976,
or who are or were serving at the request of this Corporation as directors,
officers, employees or agents of another corporation, partnership, joint
venture, trust or other enterprise subsequent to March 30, 1976, from and
against any and all of the expenses, liabilities or other matters referred to in
or covered by said law.
14
Section 9. CONSTITUENT AND RESULTING CORPORATION. For the purposes of
this Article IX, references to "the Corporation" shall include, in addition to
the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation subsequent to March 30, 1976, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
subsequent to March 30, 1976, shall stand in the same position under the
provisions of this Article IX with respect to the resulting or surviving
corporation as he or she would have with respect to such constituent corporation
if its separate existence had continued.
Section 10. OTHER ENTERPRISE. For the purposes of this Article IX,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any taxes assessed on a person with respect
to an employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer, employee or agent
of the Corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as reflected to in
this Article IX.
Section 11. CONTINUING BENEFIT. The indemnification and advancement of
expenses provided by or granted pursuant to this Article IX shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
ARTICLE X.
Annual Reports
A periodic report, including profit and loss statements and balance
sheets, prepared in accordance with generally accepted accounting principles,
shall be made to stockholders at least once a year.