EXHIBIT 3.2
By-Laws
of
REYNOLDS METALS COMPANY
Table of Contents
Page
ARTICLE I - Stock
Section 1. Certificates for Stock. . . . . . . . . . . . . . . l
Section 2. Transfers of Stock . . . . . . . . . . . . . . . . 1
Section 3. Holders of Record . . . . . . . . . . . . . . . . . 1
Section 4. Lost or Destroyed Certificates. . . . . . . . . . . 2
ARTICLE II - Stockholders' Meetings
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . 2
Section 2. Annual Meetings . . . . . . . . . . . . . . . . . . 2
Section 3. Special Meetings. . . . . . . . . . . . . . . . . . 2
Section 4. Matters to be Brought Before
Stockholders Meetings . . . . . . . . . . . . . . . 2
Section 5. Notice of Meetings. . . . . . . . . . . . . . . . . 3
Section 6. Quorum. . . . . . . . . . . . . . . . . . . . . . . 4
Section 7. Adjourned Meetings. . . . . . . . . . . . . . . . . 4
Section 8. Inspectors of Election. . . . . . . . . . . . . . . 4
Section 9. List of Stockholders. . . . . . . . . . . . . . . . 5
Section 10. Voting. . . . . . . . . . . . . . . . . . . . . . . 5
Section 11. Consents in Writing . . . . . . . . . . . . . . . . 5
ARTICLE III - Board of Directors
Section 1. Number; Term of Office; Powers. . . . . . . . . . . 6
Section 2. Resignations. . . . . . . . . . . . . . . . . . . . 6
Section 3. Vacancies . . . . . . . . . . . . . . . . . . . . . 6
Section 4. Annual Meeting. . . . . . . . . . . . . . . . . . . 6
Section 5. Regular Meetings. . . . . . . . . . . . . . . . . . 6
Section 6. Special Meetings. . . . . . . . . . . . . . . . . . 6
Section 7. Notice of Meetings. . . . . . . . . . . . . . . . . 7
Section 8. Quorum; Adjourned Meetings;
Required Vote . . . . . . . . . . . . . . . . . . . 7
Section 9. Committees. . . . . . . . . . . . . . . . . . . . . 7
Section 10. Compensation. . . . . . . . . . . . . . . . . . . . 8
Section 11. Consents in Writing . . . . . . . . . . . . . . . . 8
Section 12. Participation by Conference Telephone . . . . . . . 8
Table of Contents, Continued
ARTICLE IV - Officers
Section 1. Officers. . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Chairman of the Board . . . . . . . . . . . . . . . 9
Section 3. Vice Chairmen of the Board. . . . . . . . . . . . . 9
Section 4. President . . . . . . . . . . . . . . . . . . . . . 9
Section 5. Vice Presidents . . . . . . . . . . . . . . . . . . 9
Section 6. General Counsel . . . . . . . . . . . . . . . . . . 9
Section 7. Secretary . . . . . . . . . . . . . . . . . . . . . 9
Section 8. Treasurer . . . . . . . . . . . . . . . . . . . . . 9
Section 9. Controller. . . . . . . . . . . . . . . . . . . . . 10
Section 10. Other Officers and Assistant Officers . . . . . . . 10
Section 11. Term of Office; Vacancies . . . . . . . . . . . . . 10
Section 12. Removal . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE V - Dividends and Finance
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . 10
Section 2. Deposits; Withdrawals; Notes and Other
Instruments . . . . . . . . . . . . . . . . . . . . 10
Section 3. Fiscal Year . . . . . . . . . . . . . . . . . . . . 10
ARTICLE VI - Books and Records; Record Date
Section 1. Books and Records . . . . . . . . . . . . . . . . . 11
Section 2. Record Date . . . . . . . . . . . . . . . . . . . . 11
ARTICLE VII - Notices
Section 1. Notices . . . . . . . . . . . . . . . . . . . . . . 12
Section 2. Waivers of Notice . . . . . . . . . . . . . . . . . 12
ARTICLE VIII - Contracts
Section 1. Interested Directors or Officers. . . . . . . . . . 12
ARTICLE IX - Seal
Section 1. Seal. . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE X - Indemnification
Section 1. Indemnification in Third Party
Actions . . . . . . . . . . . . . . . . . . . . . . 13
Section 2. Indemnification in an Action by or in
the Right of the Corporation. . . . . . . . . . . . 14
Section 3. Indemnification as of Right . . . . . . . . . . . . 14
Section 4. Determination of Indemnification. . . . . . . . . . 15
Section 5. Advance for Expenses. . . . . . . . . . . . . . . . 15
Section 6. General Provisions. . . . . . . . . . . . . . . . . 15
ARTICLE XI - Amendments
Section 1. Amendments. . . . . . . . . . . . . . . . . . . . . 16
By-Laws
of
REYNOLDS METALS COMPANY
(Incorporated under the Laws of Delaware)
ARTICLE I - Stock
1. Certificates for Stock. Certificates of Stock shall be issued in
numerical order, be signed by the Chairman of the Board of Directors, a
Vice Chairman of the Board of Directors, 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 corporate seal; provided, that
where any Certificate of Stock is signed by a duly appointed and authorized
Transfer Agent or Registrar the signatures of the Chairman of the Board of
Directors, Vice Chairman of the Board of Directors, the President, Vice
President, Secretary, Assistant Secretary, Treasurer or Assistant Treasurer
may be facsimile, engraved or printed, and the seal of the corporation on
any such Certificate of Stock may be facsimile, engraved or printed. In
case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to
be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he
or she were such officer, transfer agent or registrar at the date of issue.
2. Transfers of Stock. Transfers of stock shall be made only upon
the books of the corporation, and only by the person named in the
certificate or by attorney, lawfully constituted in writing, and only upon
surrender of the certificate therefor. The directors may by resolution
make reasonable regulations for the transfers of stock.
3. Holders of Record. Registered stockholders only shall be entitled
to be treated by the corporation as the holders in fact of the stock
standing in their respective names and the corporation shall not be bound
to recognize any equitable or other claim to or interest in any share on
the part of any other person, whether or not it shall have express or other
notice thereof, except as expressly provided by the laws of Delaware.
4. Lost or Destroyed Certificates. In case of loss or destruction of
any certificate of stock another may be issued in its place upon
satisfactory proof of such loss or destruction and upon the giving of a
satisfactory bond of indemnity to the corporation, all as determined either
expressly by the directors or pursuant to general authority granted by
them.
ARTICLE II - Stockholders' Meetings
1. Place of Meetings. Meetings of the stockholders shall be held at
such place, within or outside the State of Delaware, as the Board of
Directors may determine.
2. Annual Meeting. The annual meeting of the stockholders of the
corporation, for the election of directors to succeed those whose terms
expire, and for the transaction of such other business as may come before
the meeting, shall be held on the first Wednesday after April 15th of each
year, if not a legal holiday, and if a legal holiday, then on the first
business day following, at eleven o'clock in the forenoon, or on such other
date and at such other time as may be fixed by the Board of Directors. If
the annual meeting of the stockholders be not held as herein prescribed,
the election of directors may be held at any meeting thereafter called
pursuant to these By-Laws.
3. Special Meetings. Special meetings of the stockholders may be
called by the Chairman of the Board of Directors, or a Vice Chairman of the
Board of Directors, or the President or by the Board of Directors, and
shall be called at any time by the Board of Directors upon the request in
writing of stockholders entitled to cast a majority of the votes which all
stockholders are entitled to cast. Such request must state the purpose of
the meeting.
4. Matters to be Brought Before Stockholders Meetings. Except as
otherwise provided by law, at any annual or special meeting of stockholders
only such business shall be conducted as shall have been properly brought
before the meeting in accordance with this Section.
In order to be properly brought before the meeting, such business
must have either been (i) specified in the written notice of the meeting
(or any supplement thereto) given to stockholders of record on the record
date for such meeting by or at the direction of the Board of Directors,
(ii) brought before the meeting at the direction of the Board of Directors
or the officer presiding over the meeting, or (iii) specified in a written
notice given by or on behalf of a stockholder of record on the record date
for such meeting entitled to vote thereat or a duly authorized proxy for
such stockholder, in accordance with all of the following requirements.
A notice referred to in clause (iii) hereof must be delivered
personally to, or mailed to and received at, the principal executive office
of the corporation, addressed to the attention of the Secretary, not more
than ten (10) days after the date of the initial notice referred to in
clause (i) hereof, in the case of business to be brought before a special
meeting of stockholders, and not less than thirty (30) days prior to the
first anniversary date of the initial notice referred to in clause (i)
hereof of the previous year's annual meeting, in the case of business to be
brought before an annual meeting of stockholders, provided, however, that
such notice shall not be required to be given more than ninety (90) days
prior to an annual meeting of stockholders. Such notice referred to in
clause (iii) hereof shall set forth:
(a) a full description of each such item of business proposed to be
brought before the meeting;
(b) the name and address of the person proposing to bring such
business before the meeting;
(c) the class and number of shares held of record, held beneficially
and represented by proxy by such person as of the record date for the
meeting (if such date has then been made publicly available) and as of the
date of such notice;
(d) if any item of such business involves a nomination for director,
all information regarding each such nominee that would be required to be
set forth in a definitive proxy statement filed with the Securities and
Exchange Commission pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended, or any successor thereto and the written consent of
each such nominee to serve if elected; and
(e) all other information that would be required to be filed with the
Securities and Exchange Commission if, with respect to the business
proposed to be brought before the meeting, the person proposing such
business was a participant in a solicitation subject to Section 14 of the
Securities Exchange Act of 1934, as amended, or any successor thereto.
No business shall be brought before any meeting of stockholders of
the corporation otherwise than as provided in this Section.
5. Notice of Meetings. Written notice of the place, date and hour of
the annual and of all special meetings of the stockholders and, in the case
of special meetings, of the purpose or purposes for which such special
meeting is called, shall be given in the manner specified in Section l of
Article VII of these By-Laws not less than ten (10) nor more than sixty
(60) days prior to the meeting, to each stockholder of record of the
corporation entitled to vote thereat. Business transacted at all special
meetings shall be confined to the purposes stated in the notice.
6. Quorum. A quorum at any annual or special meeting of the
stockholders shall consist of the presence, in person or by proxy, of
stockholders entitled to cast a majority of the votes which all
stockholders are entitled to cast, except as otherwise specifically
provided by law or in the Certificate of Incorporation.
7. Adjourned Meetings. If a quorum be not present at a properly
called stockholders' meeting, the meeting may be adjourned from time to
time by a majority in interest of those present in person or by proxy and
entitled to vote thereat. At any such adjourned meeting at which a quorum
shall be present, any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is
for more than thirty (30) 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; otherwise, no notice of such adjourned meeting need be given if
the time and place thereof are announced at the meeting at which the
adjournment is taken. The absence from any meeting of stockholders holding
the number of shares of stock of the corporation required by law, the
Certificate of Incorporation or these By-Laws for action upon any given
matter shall not prevent action at such meeting upon any other matter or
matters which may properly come before the meeting, if there shall be
present thereat in person or by proxy stockholders holding the number of
shares of stock of the corporation required in respect of such other matter
or matters.
8. Inspectors of Election. In advance of any meeting of stockholders
or any corporate action to be taken by the stockholders in writing without
a meeting, the Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer or Secretary of the corporation shall appoint one or more
inspectors of election to serve at such meeting or to examine such written
consents and to make a written report with respect thereto. In addition,
any such officer may, but shall not be required to, designate one or more
persons as alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate is able to act at a meeting of stockholders,
the presiding officer at such meeting shall appoint one or more inspectors
to act at the meeting. Each inspector shall discharge his or her duties in
accordance with applicable law and shall, before entering upon the
discharge of his or her duties, take and sign an oath faithfully to execute
the duties of inspector with strict impartiality and according to the best
of his or her ability.
9. List of Stockholders. A complete list of the stockholders
entitled to vote at each annual or special meeting of the stockholders of
the corporation, arranged in alphabetical order, showing the address of
record of each and the number of voting shares held by each, shall be
prepared by the Secretary, who shall have charge of the stock ledger, and
filed in the City (or, if such meeting is to be held at a place not within
any city, then in the county) where the meeting is to be held, at a
location specified in the Notice of Meeting, or if no such location is
specified in such notice, at the place where the meeting is to be held, at
least ten (10) days before every such meeting, and shall, during the usual
hours for business, be open to the examination of any stockholder for any
purpose germane to the meeting, and during the whole time of said meeting
be open to the examination of any stockholder.
10. Voting. Subject to the provisions of Article VI, Section 2 of
these By-Laws, and except where a different vote per share is prescribed by
the Certificate of Incorporation for a class of stock, each holder of stock
of a class which is entitled to vote in any election or on any other
questions at any annual or special meeting of the stockholders shall be
entitled to one vote, in person or by written proxy, for each share of such
class held of record. Except where, and to the extent that, a different
percentage of votes and/or a different exercise of voting power is
prescribed by law, the Certificate of Incorporation or these By-Laws, all
elections and other questions shall be decided by the vote of stockholders,
present in person or by proxy and entitled to vote, representing a majority
of the votes cast. Abstentions shall be counted in the tabulation of the
votes cast. The votes for directors, and, upon demand of any stockholder,
or where required by law, the votes upon any question before the meeting,
shall be by ballot; otherwise, the election shall be held as the presiding
officer prescribes.
11. Consents in Writing. Any action which might have been taken under
these By-Laws by a vote of the stockholders at a meeting thereof may be
taken by them without a meeting, without prior notice and without a vote,
if a consent in writing setting forth the action so taken shall be signed
by the holders of outstanding shares of stock of the corporation 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; provided, that prompt notice of the taking
of such corporate action shall be given to those stockholders who have not
consented thereto if less than unanimous written consent is obtained.
ARTICLE III - Board of Directors
1. Number; Term of Office; Powers. The business and affairs of the
corporation shall be under the direction of a Board of Directors,
consisting of sixteen (16) persons. Directors shall be elected for one
year, and shall hold office until their successors are elected and
qualified. Directors need not be stockholders. In addition to the power
and authority expressly conferred upon them by the By-Laws and the
Certificate of Incorporation, the Board of Directors may exercise all such
powers of the corporation and do all such lawful acts and things as are not
by law or by the Certificate of Incorporation or by these By-Laws directed
or required to be exercised or done by the stockholders.
2. Resignations. Any director may resign at any time by giving
written notice of resignation to the Board of Directors, to the Chief
Executive Officer or to the Secretary of the corporation. Any such
resignation shall take effect at the time specified therein, or if the time
be not specified therein, then upon receipt thereof. The acceptance of
such resignation shall not be necessary to make it effective.
3. Vacancies. Except as otherwise specifically provided by law, the
Certificate of Incorporation or these By-Laws, all vacancies in the Board
of Directors, whether caused by resignation, death, increase in the number
of authorized directors or otherwise, may be filled by a majority of the
Board of Directors then in office, even though less than a quorum, or by
the stockholders at a special meeting. A director thus elected to fill any
vacancy shall hold office until the next annual meeting of stockholders and
until a successor is elected and qualified.
4. Annual Meeting. The annual meeting of the Board of Directors, for
the election of officers and the transaction of other business, shall be
held on the same day and at the same place as, and as soon as practicable
following, the annual meeting of stockholders, or at such other date, time
or place as the directors may by resolution designate.
5. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such times, and at such place within or outside the State
of Delaware, as the Board of Directors may from time to time by resolution
designate.
6. Special Meetings. Special meetings of the directors may be called
at any time by the Chairman of the Board of Directors, a Vice Chairman of
the Board of Directors, the President or an Executive Vice President, or by
the Secretary upon written request of one-third of the directors, such
request stating the purpose for which the meeting is to be called. Special
meetings shall be held at the principal office of the corporation or at
such office within or outside the State of Delaware as the directors may
from time to time designate.
7. Notice of Meetings. Except as otherwise required by law, notice
of special meetings of the Board of Directors or of any committee of the
Board of Directors shall be given to each director or to each committee
member, as the case may be, by mail at least two days before the day on
which the meeting is to be held or by personal delivery, word-of-mouth,
telephone, telegraph, radio, cable or other comparable means at least six
hours before the time at which the meeting is to be held. Such notice
shall state the time and place of such meeting, but need not state the
purposes thereof unless otherwise required by law. No notice need be given
of the annual meeting of directors or of regular meetings of directors or
of committees of the Board of Directors, provided that, whenever the time
or place of such meetings shall be fixed or changed, notice of such action
shall be given promptly to each director or to each committee member, as
the case may be, who shall not have been present at the meeting at which
such action was taken.
8. Quorum; Adjourned Meetings; Required Vote. A majority of the
Board of Directors as constituted from time to time shall be necessary and
sufficient at all meetings to constitute a quorum for the transaction of
business. In the absence of a quorum, a majority of those present may
adjourn the meeting from time to time and the meeting may be held as
adjourned without further notice provided a quorum be present at such
adjourned meeting. Unless otherwise specifically provided by the
Certificate of Incorporation or statute, the act of a majority of the
directors present at any properly convened meeting at which there is a
quorum, but in no case less than one-third of all of the directors then in
office, shall be the act of the Board of Directors.
9. Committees. Standing or Temporary Committees may be appointed
from their own number by the Board of Directors from time to time, and the
directors may from time to time vest such committees with such powers as
the directors may see fit, subject to such conditions as the directors may
prescribe or as may be prescribed by law. All committees shall consist of
two or more directors. The term of office of the members of each committee
shall be as fixed from time to time by the Board of Directors; provided,
however, that any committee member who ceases to be a director shall ipso
facto cease to be a committee member. Any member of any committee may be
removed at any time with or without cause by the Board of Directors, and
any vacancy in any committee may be filled by the Board of Directors. All
committees shall keep regular minutes of their transactions and shall cause
them to be recorded in books kept for that purpose in the office of the
corporation, and shall report the same to the Board of Directors at their
regular meetings. Subject to this Section 9 and except as otherwise
determined by the Board of Directors, each committee may make rules for the
conduct of its business.
10. Compensation. Directors, as such, may receive, pursuant to
resolution of the Board of Directors, fixed fees, other compensation and
expenses for their services as directors, including, without limitation,
services as chairmen or as members of committees of the directors;
provided, however, that nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity
and receiving compensation therefor.
11. Consents in Writing. 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 of Directors 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 of
Directors or committee.
12. Participation by Conference Telephone. Members of the Board of
Directors or of any committee may participate in a meeting of such Board of
Directors or committee, as the case may be, 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 by such means shall constitute presence in person at the meeting.
ARTICLE IV - Officers
1. Officers. The corporation may have a Chairman of the Board of
Directors, one or more Vice Chairmen of the Board of Directors, a
President, one or more Vice Presidents, which may include Executive and
Senior Vice Presidents, a General Counsel, a Secretary, a Treasurer, a
Controller and such other officers and assistant officers as the Board of
Directors shall deem appropriate; provided, that the corporation shall have
such officers as are required by applicable law. Officers shall be elected
annually by the Board of Directors. One person may hold more than one
office.
The Board of Directors shall designate a Chief Executive Officer,
and may designate a Chief Operating Officer and a Chief Financial Officer
from among the officers of the corporation.
The Chief Executive Officer shall have general supervision and
management of the business and affairs of the corporation, subject to the
control of the Board of Directors, and may prescribe the duties to be
performed by the officers of the corporation in addition to the duties
prescribed by these By-Laws or by the Board of Directors. In the absence
or disability of the Chairman of the Board of Directors, the Chief
Executive Officer shall preside at all meetings of stockholders and
directors. In the absence or disability of the Chief Executive Officer,
such officer of the corporation as the Chief Executive Officer shall have
designated in writing to the Board of Directors or to the Secretary of the
corporation shall, subject to further action by the Board of Directors,
have the powers and perform the duties of the Chief Executive Officer.
2. Chairman of the Board. The Chairman of the Board of Directors
shall preside at all meetings of stockholders and directors.
3. Vice Chairmen of the Board. A Vice Chairman shall perform such
duties as are properly required by the Board of Directors or the Chief
Executive Officer.
4. President. The President shall perform such duties as
are properly required by the Board of Directors or the Chief Executive
Officer.
5. Vice Presidents. Each of the Executive Vice presidents, Senior
Vice Presidents and other Vice Presidents shall perform such duties as are
properly required by the Board of Directors or the Chief Executive Officer.
6. General Counsel. The General Counsel shall advise the corporation
on legal matters affecting the corporation and its activities, shall
supervise and direct the handling of all such legal matters and shall
perform all such other duties as are incident to the office of General
Counsel.
7. Secretary. The Secretary shall keep the minutes of the meetings
of the stockholders and of the Board of Directors, and, when required, the
minutes of the meetings of the committees, and shall be responsible for the
custody of all such minutes. The Secretary shall be responsible for the
custody of the stock ledger and documents of the corporation. The
Secretary shall have custody of the corporate seal and may affix and attest
such seal to any instrument whose execution shall have been duly authorized
and shall perform all other duties incident to the office of Secretary.
8. Treasurer. The Treasurer shall have the custody of all moneys and
securities of the corporation and shall keep or cause to be kept accurate
accounts of all money received or payments made in books kept for that
purpose. The Treasurer shall deposit or cause to be deposited funds of the
corporation in accordance with Article V, Section 2 of these By-Laws and
shall disburse the funds of the corporation by checks or vouchers as
authorized by the Board of Directors. The Treasurer shall also perform all
other duties incident to the office of Treasurer.
9. Controller. The Controller shall be the chief accounting officer
of the corporation. The Controller shall keep or cause to be kept all
books of accounts and accounting records of the corporation and shall keep
and maintain, or cause to be kept and maintained, adequate and correct
accounts of the properties and business transactions of the corporation.
The Controller shall prepare or cause to be prepared appropriate financial
statements for the corporation and shall perform such other duties as may
be incident to the office of Controller.
10. Other Officers and Assistant Officers. All other officers and
assistant officers shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors or the
Chief Executive Officer.
11. Term of Office; Vacancies. Each officer shall hold office until
the annual meeting of the Board of Directors following the end of the term
of the Board by which such officer is elected, except in the case of
earlier death, resignation or removal. Vacancies in any office arising from
any cause may be filled by the directors at any regular or special meeting.
12. Removal. Any officer elected or appointed by the Board of
Directors may be removed at any time, with or without cause, by the Board
of Directors.
ARTICLE V - Dividends and Finance
1. Dividends. Dividends may be declared to the full extent permitted
by law at such times as the Board of Directors shall direct.
2. Deposits; Withdrawals; Notes and Other Instruments. The moneys of
the corporation shall be deposited in the name of the corporation in such
banks or trust companies as shall be designated by the Board of Directors,
and shall be drawn out only by check signed by persons designated, from
time to time, by the Board of Directors or by an officer of this
corporation to whom the Board of Directors has delegated such authority.
All notes and other instruments for the payment of money shall be signed or
endorsed by officers or other persons authorized from time to time by the
Board of Directors or by an officer of this corporation to whom the Board
of Directors has delegated such authority.
3. Fiscal Year. The fiscal year of the corporation shall date from
the first day of January in each year.
ARTICLE VI - Books and Records; Record Date
1. Books and Records. The books, accounts and records of the
corporation, except as may be otherwise required by the laws of the State
of Delaware, may be kept within or outside of the said State at such places
as the Board of Directors may from time to time appoint.
2. Record Date.
(a) The Board of Directors is authorized to fix in advance a date, not
exceeding sixty (60) days preceding the date of any meeting of
stockholders, or the date for the payment of any dividend, or other
distribution or allotment of any rights, or the date when any change,
conversion or exchange of capital stock shall go into effect, as a record
date for the determination of the stockholders entitled to notice of, and
to vote at, any such meeting and any adjournment thereof, or entitled to
receive payment of any such dividend or other distribution or allotment of
rights, or to exercise any rights in respect of any such change, conversion
or exchange of capital stock. Such stockholders and only such stockholders
as shall be stockholders of record on the record date so fixed shall be
entitled to such notice of, and to vote at, such meeting and any
adjournment thereof, or to receive payment of such dividend or other
distribution or allotment of rights, or to exercise such rights, as the
case may be, notwithstanding any transfer of any stock on the books of the
corporation after any such record date fixed as aforesaid. Any such record
date fixed in connection with a meeting of stockholders shall not be less
than ten (10) days before the date of such 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 is authorized to fix in advance a record date, which
record date shall not be more than ten (10) days after the date upon which
the resolution fixing the record date is adopted by the Board of Directors.
Any stockholder of record seeking to have the stockholders authorize or
take corporate action by written consent shall, by written notice to the
Secretary, request the Board of Directors to fix a record date. 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 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 the Secretary. If
no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which
the Board of Directors adopts the resolution taking such prior action.
Such stockholders and only such stockholders as shall be stockholders of
record on the record date so fixed shall be entitled to give such consent,
notwithstanding any transfer of any stock on the books of the corporation
after any such record date fixed as aforesaid.
ARTICLE VII - Notices
1. Notices. Whenever any provision of law or these By-Laws requires
notice to be given to any director, officer or stockholder, such notice may
be given in writing by mailing the same to such director, officer or
stockholder at his or her address as the same appears in the books of the
corporation, unless such stockholder shall have filed with the Secretary a
written request that notices intended for him or her be mailed to some
other address, in which case it shall be mailed to the address designated
in such request. The time when the same shall be mailed shall be deemed to
be the time of the giving of such notice. This section shall not be deemed
to preclude the giving of notice by other means if permitted by the
applicable provision of law or these By-Laws.
2. Waivers of Notice. A waiver of any notice in writing, signed by a
stockholder, director or officer, whether before or after the time stated
in said waiver for holding a meeting, shall be deemed equivalent to a
notice required to be given to any stockholder, director or officer.
ARTICLE VIII - Contracts
1. Interested Directors or Officers. No contract or transaction
between the corporation and one or more of its directors or officers, or
between the corporation and any other corporation, partnership, association
or other organization in which one or more of the directors or officers of
the corporation are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the
director or officer of the corporation is present at or participates in the
meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction, or solely because his, her or their votes are
counted for such purpose, if:
(i)The material facts as to the relationship or interest of such
person and as to the contract or transaction are disclosed or are
known to the Board of Directors or the committee thereof, and the
Board of Directors or committee in good faith authorizes the contract
or transaction by a vote sufficient for such purpose without counting
the vote of the interested director or directors of the corporation;
provided, however, that common or interested directors may be counted
in determining the presence of a quorum at a meeting of the Board of
Directors or committee; or
(ii)The material facts as to the relationship or
interest of such person and as to the contract or
transaction are disclosed or are known to the stockholders
of the corporation entitled to vote thereon, and the
contract or transaction is specifically approved in good
faith by vote of the stockholders of the corporation; or
(iii)The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or
ratified by the Board of Directors, a committee thereof or
the stockholders of the corporation.
ARTICLE IX - Seal
1. Seal. The corporate seal of the corporation shall
consist of two concentric circles, between which is the name of
the corporation, and in the center shall be inscribed the year of
its incorporation and the words, "Corporate Seal, Delaware."
ARTICLE X - Indemnification
1. Indemnification in Third Party Actions. The corporation
shall indemnify each 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 such
person 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, including service with respect to employee benefit
plans, against all expense, liability and loss (including
attorneys fees, judgments, fines, ERISA excise taxes or
penalties, and amounts paid or to be paid in settlement) actually
and reasonably incurred by such person 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, except that no
indemnification shall be made in respect of any proceeding (or
part thereof) initiated by such person unless such proceeding (or
part thereof) was authorized by the Board of Directors of the
corporation. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which the person reasonably believed to be in or not
opposed to the best interests of the corporation, and with
respect to any criminal action or proceeding, had reasonable
cause to believe that his or her conduct was unlawful.
2. Indemnification in an Action by or in the Right of the
Corporation. The corporation shall indemnify each 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 such person 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, including service with
respect to employee benefit plans, against expenses (including
attorneys' fees) actually and reasonably incurred by such person
in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests
of the corporation and except that no indemnification shall be
made in respect of (a) 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 such Court of
Chancery or such other court shall deem proper, or (b) any
proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized by the Board of
Directors of the corporation.
3. Indemnification as of Right. To the extent that a
director, officer, employee or agent of the corporation has been
successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in Sections l and 2 of this
Article X, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including
attorneys fees) actually and reasonably incurred by such person
in connection therewith.
4. Determination of Indemnification. Any indemnification
under Sections 1 and 2 of this Article X (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 the person has met the applicable standard
of conduct set forth in such Sections l and 2. Such
determination shall be made (a) by the Board of Directors (the
Board) 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 a quorum
of disinterested directors so directs, by independent legal
counsel in a written opinion or (c) by the stockholders.
5. Advance for Expenses. Expenses (including attorneys'
fees) incurred in defending any civil, criminal, administrative
or investigative action, suit or proceeding shall 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 the 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 X.
6. General Provisions.
(a) All expenses (including attorneys' fees) incurred in
defending any civil, criminal, administrative or investigative
action, suit or proceeding which are advanced by the corporation
under Section 5 of this Article X shall be repaid (i) in case the
person receiving such advance is ultimately found, under the
procedure set forth in this Article X, not to be entitled to
indemnification, or (ii) where indemnification is granted, to the
extent that the expenses so advanced by the corporation exceed
the indemnification to which such person is entitled.
(b) The corporation may indemnify each person, though he or
she is not or was not a director, officer, employee or agent of
the corporation, who served at the request of the corporation on
a committee created by the Board to consider and report to it in
respect of any matter. Any such indemnification may be made
under the preceding provisions of this Article X and shall be
subject to the limitations thereof except that (as indicated) any
such committee member need not be nor have been a director,
officer, employee or agent of the corporation.
(c) The provisions of this Article X shall be applicable to
appeals. References to "serving at the request of the
corporation" shall include without limitation 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. A person who acted in
good faith and in a manner he or she 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."
(d) If any section, subsection, paragraph, sentence, clause,
phrase or word in this Article X shall be adjudicated invalid or
unenforceable, such adjudication shall not be deemed to
invalidate or otherwise affect any other section, subsection,
paragraph, sentence, clause, phrase or word of this Article.
(e) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article X 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 their official
capacities and as to action in another capacity while holding
such office, and shall 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 XI - Amendments
1. Amendments. Alterations or amendments of these By-Laws
may be made by the stockholders at any annual or special meeting
if the notice of such meeting contains a statement of the
proposed alteration or amendment, or by the Board of Directors at
any annual, regular or special meeting, provided notice of such
alteration or amendment has been given to each director in
writing at least five (5) days prior to said meeting or has been
waived by all the directors.
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