EXHIBIT 3.(ii)
________________________
Transamerica Corporation
By-Laws
________________________
I, JACLYN L. LARSON, Assistant Secretary of Transamerica Corporation, a
Delaware corporation, hereby certify that the following constitutes a true and
correct copy of the by-laws of said corporation now in force.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of said
corporation this __________ day of __________________________, 19_____.
_________________________________________
Jaclyn L. Larson
Assistant Secretary
[SEAL]
Amended
January 25, 1996
BY-LAWS
OF
TRANSAMERICA CORPORATION
________________
OFFICES
1. The principal office shall be in the City of Wilmington, County of
New Castle, State of Delaware. The corporation may also have offices at such
other places as the Board of Directors may from time to time appoint or the
business of the corporation may require.
SEAL
2. The corporate seal shall have inscribed thereon the name of the
corporation, and the words "Incorporated October 11, 1928, Delaware." Said
seal may be used by causing it or a facsimile thereof to be impressed or
affixed or otherwise reproduced. The Secretary may have duplicate seals made
and deposited for use with such officers as the Board of Directors may
designate.
It shall not be necessary to the validity of any instrument executed by
any authorized officer or officers of this 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.
STOCKHOLDERS' MEETINGS
3. All meetings of the stockholders shall be held at such office or
place, within or without the State of Delaware, as may be designated by the
Board of Directors and as shall be specified in the notice of the meeting.
4. The annual meeting of the stockholders shall be held on such day of
the year and at such time as may be designated by the Board of Directors and
as shall be specified in the notice of the meeting, provided, however, that in
the absence of such a designation and notice, the annual meeting shall be held
on the fourth Thursday of April in each year, if not a legal holiday under the
laws of said State, then on the next succeeding day not a legal holiday under
the laws of said State, at 11 o'clock A.M., when they shall elect by a
plurality vote, by ballot, a Board of Directors, and transact such other
business as may properly be brought before the meeting.
5. The holders of a majority of the stock issued and outstanding, and
entitled to vote thereat, present in person, or represented by proxy, shall be
requisite and shall constitute a quorum at all meetings of the stockholders
for the transaction of business except as otherwise provided by law, by the
certificate of incorporation or by these by-laws. If, however, such majority
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person, or by proxy, shall
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have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until the requisite amount of voting stock shall
be present. At such adjourned meeting at which the requisite amount of voting
stock shall be represented any business may be transacted which might have
been transacted at the original meeting.
6. At each meeting of the 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 or by his duly authorized
attorney and submitted to the Secretary at or before such meeting, but no such
proxy shall be voted or acted upon after three years from its date, unless
said proxy provides for a longer period. Each stockholder shall have one vote
for each share of stock having voting power, registered in his name on the
books of the corporation; provided, however, that, except where a date shall
have been fixed as a record date for the determination of stockholders
entitled to vote as hereinafter provided in these by-laws, no share of stock
shall be voted at any election for directors which has been transferred on the
books of the corporation after the close of business on the day next preceding
the day on which notice is given. The vote for directors, and upon the demand
of any stockholder, the vote upon any question before the meeting, shall be by
ballot. All actions shall be had and all questions decided by a plurality
vote, except as otherwise specifically provided by statute or by the
certificate of incorporation or by these by-laws.
7. Written notice of the annual meeting shall be mailed to each
stockholder entitled to vote thereat at such address as appears on the records
of the corporation, not less than ten nor more than sixty days prior to the
meeting.
8. Special meetings of the stockholders, for any purpose, or purposes,
may be called only by the Board of Directors pursuant to a resolution adopted
by a majority of the total number of authorized directors (whether or not
there exist any vacancies in previously authorized directorships at the time
any such resolution is presented to the Board of Directors for adoption).
Such resolution shall state the purpose or purposes of the proposed meeting.
9. Business transacted at all special meetings shall be confined to
the objects stated in the call.
10. Written notice of a special meeting of stockholders, stating the
time and place and object thereof, shall be mailed, postage prepaid, at least
ten but not more than sixty days before such meeting, to each stockholder
entitled to vote thereat at such address as appears on the records of the
corporation.
10A. At an annual meeting of the stockholders, only such business shall
be conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, otherwise properly brought before the meeting by or at
the direction of the Board of Directors or otherwise properly brought before
the meeting by a stockholder. In addition to any other applicable
requirements, 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, Transamerica Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
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principal executive offices of the corporation, not less than thirty days nor
more than sixty days prior to the meeting; provided, however, that in the
event that less than forty days' notice or prior 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
tenth 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 before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address 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 annual meeting except in accordance with
the procedures set forth in this Section 10A; provided, however, that nothing
in this Section 10A shall be deemed to preclude discussion by any stockholder
of any business properly brought before the annual meeting in accordance with
said procedure.
The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 10A, 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.
10B. In addition to any other applicable requirements, only persons who
are nominated in accordance with the following procedures shall be eligible
for election as directors. Nominations of persons for election to the Board
of Directors of the corporation may be made at a meeting of stockholders by or
at the direction of the Board of Directors, by any nominating committee or
person appointed by the Board of Directors or by any stockholder of the
corporation entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this Section 10B. 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, Transamerica 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 less than thirty days nor more than sixty days
prior to the meeting; provided, however, that in the event that less than
forty days' notice or prior 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 tenth day following
the day on which such notice of the date of the meeting was mailed or such
public disclosure was made. Such stockholder's notice shall set forth (a) as
to each person whom the stockholder proposes to nominate for election or re-
election as a director, (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class and number of shares of the corporation which are
beneficially owned by the person and (iv) any other information relating to
the person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to Rule 14a under the Securities Exchange Act
of 1934; and (b) as to the stockholder giving the notice, (i) the name and
record address of stockholder and (ii) the class and number of shares of the
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corporation which are beneficially owned by the stockholder. The corporation
may require any proposed nominee to furnish such other information as may
reasonably be required by the corporation to determine the eligibility of such
proposed nominee to serve as a director of the corporation. No person shall
be eligible for election as a director of the corporation unless nominated in
accordance with the procedures set forth herein. These provisions shall not
apply to nomination of any persons entitled to be separately elected by
holders of preferred stock.
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 foregoing procedure, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded.
DIRECTORS
11. The property and business of this corporation shall be managed by
its Board of Directors, not less than seven nor more than twenty-two in number
as shall be determined by the Board of Directors. The Directors shall be
divided into three classes, designated Class I, Class II and Class III, and
each Class shall consist, as nearly as may be possible, of one-third of the
total number of directors constituting the entire Board of Directors. At the
1986 annual meeting of stockholders, Class I directors shall be elected for a
one-year term, Class II directors for a two-year term and Class III directors
for a three-year term. At each succeeding annual meeting of stockholders
beginning in 1987, successors to the class of directors whose term expires at
that annual meeting shall be elected for a three-year term. In case the Board
of Directors shall change the number of Directors within the above limits, any
increase or decrease shall be apportioned among the classes so as to maintain
the number of directors in each class as nearly equal as possible and any
additional Director of any class elected to fill a vacancy resulting from an
increase in such class shall hold office for a term that shall coincide with
the remaining term of that class, but in no case will a decrease in the number
of Directors shorten the term of any incumbent Director. A Director shall
hold office until the annual meeting for the year in which such Director's
term expires and until his or her successor shall be elected and qualified,
subject, however, to such Director's prior death, resignation, retirement,
disqualification or removal from office.
12. Any vacancy in the Board of Directors that results from an increase
in the number of Directors may be filled by a majority of the Directors then
in office, provided that a quorum is present, and any other vacancy occurring
in the Board of Directors may be filled by a majority of the directors then in
office, even if less than a quorum, or by a sole remaining director, and each
Director elected to fill a vacancy not resulting from an increase in the
number of directors shall have the same remaining term as that of such
Director's predecessor.
Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of preferred stock or preference stock issued by this
corporation shall have the right, voting separately by class or series, to
elect directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships
shall be governed by the terms of this corporation's certificate of
incorporation applicable thereto, and such directors so elected shall not be
divided into classes pursuant to Article IX of such certificate of
incorporation unless expressly provided by the terms thereof. The Directors
of this corporation need not be stockholders.
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13. The Directors may hold their meetings and have one or more offices,
and keep the books of the corporation outside of Delaware or at such other
offices of the corporation or other places as they may from time to time
determine.
14. Directors, in addition to expenses of attendance, shall be allowed
such compensation as may be fixed from time to time by resolution adopted by a
majority of the whole Board of Directors; provided that nothing herein
contained shall be construed to preclude any Director from serving the
corporation in any other capacity and receiving compensation therefor.
15. In addition to the powers and authorities by these by-laws
expressly conferred upon it, the Board may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or by
the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders; provided, however that no portion of
the holdings of the corporation of voting securities in any subsidiary company
shall be sold or otherwise disposed of, if such sale or disposition would
reduce the voting power of the corporation in such subsidiary below a majority
of the total voting power thereof, without approval of at least a majority of
the whole Board of Directors, either expressed at a meeting by resolution
concurred in by a majority of the whole Board of Directors or by written
consent executed by at least a majority of all the members of the Board.
COMMITTEES
16. The Board of Directors, by resolution adopted by a majority of the
whole Board, may designate an Executive Committee to consist of three or more
Directors to hold office at the pleasure of the Board and by like resolution
may fill vacancies in, or reconstitute the membership of, the Executive
Committee. Meetings of the Executive Committee for any purpose or purposes
may be called by the Chairman of the Board, the Chief Executive Officer, the
President, or the Chairman of the Executive Committee, and shall be called by
any of them at the request in writing of at least two members of the Executive
Committee, to be held in such place in the City and County of San Francisco,
or at any other place within or without the State of California, as shall be
designated from time to time by the Chairman of the Board, the Chief Executive
Officer, the President, the Chairman of the Executive Committee or the
Executive Committee and indicated in the notice of such meetings.
At least twenty-four hours' notice of such meetings shall be given
to each member of the Executive Committee either personally or by telegram or
by telephone; provided, however, that if any such meeting is to be held at any
place other than in the City and County of San Francisco notice of such
meeting shall be given personally to each member of the Executive Committee or
may be given by mailing a notice in a postage prepaid envelope addressed to
each such member at his address registered on the books of the corporation, at
least three days before the time fixed for the meeting.
The Executive Committee shall, between sessions of the Board, have
such powers as may be delegated to it from time to time by the Board of
Directors.
The Secretary or a member of the Executive Committee shall keep
minutes of all its proceedings, all of which shall be reported as soon as
practicable to the Board of Directors and shall be subject to revision or
rescission by the Board of Directors provided no rights of third parties shall
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be affected thereby. The Chairman of the Executive Committee shall preside at
all meetings of the Executive Committee and in his absence the Executive
Committee shall select from its members a Chairman of each meeting. The
presence of a majority of the members of the Executive Committee (but in no
event less than three) shall be necessary to constitute a quorum for the
transaction of business.
17. The Board of Directors may from time to time by resolution create
such other committee or committees of directors, officers, employees or other
persons designated by it for the purpose, to advise with the Board, the
Executive Committee and the officers and employees of the corporation in all
such matters as the Board shall deem advisable and with such functions and
duties as the Board shall by resolution prescribe. A majority of all the
members of any such committee may determine its action and fix the time and
place of its meetings unless the Board of Directors shall otherwise provide.
The Board of Directors shall have power to change the members of any such
committee at any time, to fill vacancies, and to discharge any such committee,
either with or without cause, at any time.
18. Members of the Executive Committee and of any other special or
standing committee shall, in addition to expenses of attendance, be allowed
such compensation as may be fixed from time to time by resolution adopted by a
majority of the whole Board of Directors.
MEETINGS OF THE BOARD
19. The newly elected Board shall have its first meeting at such place
and time as shall be fixed by the vote of the stockholders at the annual
meeting, for the purpose of organization or otherwise, and no notice of such
meeting shall be necessary to the newly elected Directors in order legally to
constitute the meeting; provided, a quorum of the whole Board shall be
present; or they may meet at such place and time as shall be fixed by the
consent in writing of all the Directors, or as shall be stated in the notice
of such meeting given as hereinafter provided in the case of special meetings
of the Board.
20. Regular meetings of the Board of Directors shall be held without
call or notice at such time and place as shall from time to time be fixed by
standing resolution of the Board.
21. Special meetings of the Board may be called by the Chairman of the
Board, by the Chief Executive Officer, or by the President, on twenty-four
hours' notice to each Director, either personally or in writing by mail, or by
telegram, or by telephone; special meetings shall be called by the Chairman of
the Board, the Chief Executive Officer, the President or the Secretary in like
manner and on like notice on the written request of three Directors. Notice
of special meetings of the Board shall state the time and place of the meeting
but need not state the purpose thereof except as otherwise expressly provided
in these by-laws.
22. At all meetings of the Board a majority of the total number of
Directors shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the act of a majority of the Directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute or by
the certificate of incorporation or by these by-laws.
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OFFICERS
23. The officers of the corporation shall be chosen by the Directors
and shall be a Chairman of the Board, a Chief Executive Officer, a President,
one or more Vice Presidents, a Treasurer, a Secretary, a Controller, Assistant
Vice Presidents, Assistant Treasurers, Assistant Secretaries and Assistant
Controllers. The Board of Directors may also choose such other officers as
they may determine. Any number of offices may be held by the same person.
24. The Board of Directors shall annually at its organizational meeting
choose a Chairman of the Board, a Chief Executive Officer, a President, one or
more Vice Presidents, the Secretary, the Treasurer, the Controller, and such
other officers as they may determine, none of whom except the Chairman of the
Board and the Chief Executive Officer, need be members of the Board. The
Board of Directors shall also choose annually at its organizational meeting a
Chairman of the Executive Committee, who shall be a member of the Board.
25. The Board may appoint such other officers and agents as it shall
deem necessary, who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time
by the Board.
26. The salaries of all officers and agents of the corporation shall be
fixed by the Board of Directors.
27. The officers of the corporation shall hold office until their
successors are chosen and qualify in their stead. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the whole Board of Directors. If the office
of any officer or officers becomes vacant for any reason, the vacancy shall be
filled by the Board of Directors.
28. In the case of the absence of any officer of the corporation, or
for any other reason that the Board may deem sufficient, the Board may
delegate, for the time being, the powers or duties, or any of them, of such
officer to any other officer, or to any Director, provided, a majority of the
entire Board concur therein.
THE CHAIRMAN OF THE BOARD
29. The Chairman of the Board shall preside at all meetings of the
stockholders and of the Board of Directors and shall be ex-officio a member of
all standing committees with the exception of the Corporate Audit Committee
and the Management Development and Compensation Committee.
CHIEF EXECUTIVE OFFICER,
PRESIDENT AND VICE PRESIDENTS
30. (a) The Chief Executive Officer shall be the chief executive
officer of the corporation and, subject to the Board of Directors, shall have
general and active management of the business, affairs, and property of the
corporation. The Chief Executive Officer shall keep the Board of Directors
fully informed and shall freely consult with them concerning the matters in
his charge. The Chief Executive Officer shall be ex-officio a member of all
standing committees with the exception of the Corporate Audit Committee and
the Management Development and Compensation Committee. In the absence or
disability of the Chairman of the Board, if the Chairman of the Board not be
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the Chief Executive Officer, the Chief Executive Officer shall perform the
duties and exercise the powers of the Chairman of the Board.
(b) The President shall do and perform such duties and have such
powers as from time to time may be assigned to him by the Board of Directors,
or, if the President not be the Chief Executive Officer, the Chief Executive
Officer. If the President shall not be the Chief Executive Officer, the
President shall keep the Chief Executive Officer fully informed and shall
freely consult with him concerning the matters in his charge and, in the
absence or disability of the Chief Executive Officer, the President shall
perform the duties and exercise the powers of the Chief Executive Officer.
(c) In the absence or disability of the President, a Vice
President designated by the Board of Directors or by the Executive Committee
shall perform the duties and exercise the powers of the President.
(d) The Chairman of the Executive Committee shall preside at all
meetings of the Executive Committee and shall perform such other duties as may
be prescribed by the Board of Directors or the Executive Committee.
(e) The Vice Presidents shall respectively perform such duties as
may be prescribed by the Board of Directors or the Chief Executive Officer.
THE SECRETARY AND
ASSISTANT SECRETARIES
31. (a) The Secretary shall attend all sessions of the Board and all
meetings of the stockholders and record all votes and the minutes of all
proceedings in a book to be kept for that purpose, and shall perform like
duties for the standing committees when required. The Secretary shall give,
or cause to be given, notice of all meetings of the stockholders, and the
Board of Directors, and shall perform such other duties as may be prescribed
by the Board of Directors, or by the Chairman of the Board, under whose
supervision the Secretary shall be. The Secretary shall keep in safe custody
the seal of the corporation, and shall have authority to affix the same to any
instrument requiring it.
(b) The Assistant Secretaries, in the order of their seniority,
shall, in the absence or disability of the Secretary, perform the duties and
exercise the powers of the Secretary, and shall perform such other duties as
may be prescribed by the Board of Directors or the Chairman of the Board.
THE TREASURER AND
ASSISTANT TREASURERS
32. (a) The Treasurer shall have the custody of the corporate funds
and securities and shall deposit all moneys 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.
(b) The Treasurer shall disburse the funds of the corporation as
may be ordered by the Board, taking proper vouchers for such disbursements,
and shall render to the Chairman of the Board, the Chief Executive Officer,
the President, and the Board of Directors, at the regular meetings of the
Board, or whenever they may require it, an account of all his transactions as
Treasurer.
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(c) The Treasurer shall give the corporation a bond if required by
the Board of Directors in a sum, and with one or more sureties, satisfactory
to the Board, for the faithful performance of the duties of his office, and
for the restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control
belonging to the corporation; but the Board of Directors may, if they see fit,
dispense with such bond. The Treasurer shall perform such other duties as may
be prescribed by the Board of Directors or by the Chief Executive Officer.
(d) The Assistant Treasurers in the order of their seniority
shall, in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer, and shall perform such other duties as
may be prescribed by the Board of Directors or the Chief Executive Officer.
THE CONTROLLER AND
ASSISTANT CONTROLLERS
33. (a) The Controller shall act as the principal accounting officer
in charge of general accounting books and records of the corporation, and
shall have general supervision of the accounting practices of all
subsidiaries.
(b) The Controller shall cause to be prepared, compiled, and
filed, such reports, statements, statistics, and other data as may be required
by law or as may be prescribed by the Chief Executive Officer or the Board of
Directors.
(c) The Controller shall give the corporation a bond if required
by the Board of Directors in a sum, and with one or more sureties,
satisfactory to the Board, for faithful performance of the duties of his
office, and for restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation; but the Board of Directors may, if
they see fit, dispense with such bond.
(d) The Assistant Controllers in the order of their seniority
shall, in the absence or disability of the Controller, perform the duties and
exercise the powers of the Controller, and shall perform such other duties as
may be prescribed by the Board of Directors or the Chief Executive Officer.
INDEMNIFICATION OF DIRECTORS
OR OFFICERS
34. (a) Subject to subsection (d) of this section, any person who was
or is made a party or is threatened to be made a party to or is involved in
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, or a
person of whom he or she is the legal representative, is or was a Director or
officer of the corporation, or is or was a Director or officer of the
corporation serving at the request of the corporation as a Director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
another enterprise, whether the basis of such proceeding is alleged action in
an official capacity as a Director or officer or in any other capacity while
serving as a Director or officer, shall be indemnified and held harmless by
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the corporation to the fullest extent permitted by the Delaware General
Corporation Law as the same exists or, subject to subsection (o) of this
section, may hereafter be amended, against losses, liabilities and expenses
(including attorneys' fees, judgments, fines and amounts paid in settlement)
actually and reasonably incurred or suffered by him or her in connection with
such action, suit or proceeding; provided, however, that no indemnification
shall be provided to any such person if a judgment or other final adjudication
adverse to the Director or officer establishes that the Director or officer
did not act in good faith and in a manner such Director or officer reasonably
believed to be in or not opposed to the best interests of the corporation or,
with respect to any criminal action or proceeding, had reasonable cause to
believe his or her conduct was unlawful; and provided, further, that except as
to actions to enforce indemnification rights pursuant to subsection (f) of
this section, the corporation shall indemnify any such person seeking
indemnification in connection with an action, suit or proceeding (or part
thereof) initiated by such person only if the action, suit or 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 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.
(b) Subject to subsection (d) of this section, any person who was
or is made 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 or officer of the corporation, or is or was a Director or officer
of the corporation serving at the request of the corporation as a Director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or another enterprise shall be indemnified by the corporation 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 of the
State of Delaware or such other court shall deem proper.
(c) Notwithstanding the other provisions of this section, to the
extent that a Director or officer of the corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred
to in subsections (a) and (b) of this section, or in defense of any claim,
issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation unless a
determination is made (1) by the Board of Directors by a majority vote of a
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quorum consisting of Directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable
a quorum of disinterested Directors so directs, by independent legal counsel
(who may be the regular counsel of the corporation) in a written opinion, or
(3) by the stockholders that indemnification of the Director or officer is not
proper in the circumstances because he or she has not met the applicable
standard of conduct set forth in subsections (a) and (b) of this section.
(e) Expenses incurred (including attorneys' fees) by a Director or
officer in defending a civil or criminal action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action,
suit or proceeding; provided, however, that the payment of such expenses
incurred by a Director or officer in his or her capacity as a Director or
officer (and not in any other capacity in which service was or is rendered by
such person while a Director or officer) in advance of the final disposition
of such action, suit or proceeding shall be made only upon receipt of an
undertaking by or on behalf of the Director or officer 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 section. Such expenses
incurred by other employees and agents of the corporation (or by the Directors
or officers not acting in their capacity as such, including service with
respect to employee benefit plans) may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
(f) If a request to be indemnified under subsections (a) and (b)
of this section is made, the Board of Directors shall make a determination
pursuant to Section 145(d) of the Delaware General Corporation Law within
thirty days after such request as to whether the person so requesting
indemnification is entitled to indemnification under this section and the
Delaware General Corporation Law. If a claim under subsections (a), (b), (c)
or (e) of this section is not paid in full by the corporation within thirty
days after a written claim has been received by the corporation, the claimant
may at any time thereafter bring suit against the corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled to be paid also the expense (including attorneys'
fees) of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending an action, suit or proceeding in advance of its final disposition
where the undertaking, if any is required, has been tendered to the
corporation) that the claimant has not met the standards of conduct that make
it permissible under the Delaware General Corporation Law or this section for
the corporation to indemnify the claimant for the amount claimed. The burden
of proving such a defense shall be on the corporation. Neither the failure of
the corporation (including its Board of Directors, independent legal counsel,
or its stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper under the
circumstances because he or she has met the applicable standard of conduct set
forth in the Delaware General Corporation Law, nor an actual determination by
the corporation (including its Board of Directors, independent legal counsel,
or its stockholders) that the claimant had not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that
claimant has not met the applicable standard of conduct.
(g) The rights provided by or granted pursuant to the other
subsections of this section shall be a contract right, and shall not be deemed
exclusive of any other rights to which those seeking indemnification and
advancement of expenses are or hereafter may be entitled under any statute,
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provision of the certificate of incorporation, 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, it being the policy of the corporation that indemnification of
the persons specified in subsections (a) and (b) of this section shall be made
to the fullest extent permitted by law the Delaware General Corporation Law,
as the same exists or, subject to subsection (o) of this section, may
hereafter be amended.
(h) The corporation may purchase and maintain insurance to protect
itself and 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, expense or
loss 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, expense or loss under the provisions of this section or applicable
law.
(i) The rights provided by, or granted pursuant to, this section
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.
(j) The corporation may provide rights to indemnification and to
the advancement of expenses to employees and agents of the corporation who are
not Directors or officers of the corporation with such scope and effect as
determined from time to time by the Board of Directors.
(k) For purposes of this section, 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, 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 another
enterprise, shall stand in the same position under the provisions of this
section 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.
(l) For the purposes of any determination under subsection (d) of
this section, a person shall be deemed to have 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, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his or her conduct was
unlawful, if his or her action is based on the records or books of account of
the corporation or another enterprise, or on information supplied to him or
her by the officers of the corporation or another enterprise in the course of
their duties, or on the advice of legal counsel for the corporation or another
enterprise or on information or records given or reports made to the
corporation or another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by
the corporation or another enterprise. The provisions of this subsection
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shall not be deemed to be exclusive or to limit in any way the circumstances
in which a person may be deemed to have met the applicable standard of conduct
set forth in subsections (a) or (b) of this section, as the case may be.
(m) For purposes of this section, references to "another
enterprise" shall include employee benefit plans; references to "fines" shall
include any excise 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 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" as referred to
in this section.
(n) The Board of Directors is specifically authorized, without any
action on the part of the stockholders, to alter, amend or repeal this
section, to such an extent and in such manner as the law of Delaware, or other
applicable law, relating to indemnification of the Directors, officers,
employees and agents herein referred to may, at any time and from time to
time, authorize or permit; provided, however, that any amendment, repeal or
modification of this section shall not (i) in any way diminish or adversely
affect any right or protection of any Director, officer, employee or agent of
the Corporation existing at the time of such amendment, repeal, or
modification, or the obligations of the corporation arising hereunder, or (ii)
apply to the indemnification of any such person for liability, expense or loss
stemming from actions or omissions occurring prior to such amendment, repeal
or modification.
(o) Any person entitled to be indemnified or to the reimbursement
or advancement of expenses as a matter of right pursuant to this section shall
be entitled to the greater of the indemnification (or advancement of expenses)
provided (i) under the applicable law in effect at the time of the occurrence
of the event or events giving rise to the action or proceeding, to the extent
permitted by law, or (ii) under the applicable law in effect at the time
indemnification (or advancement of expenses) is sought.
CERTIFICATES OF STOCK
35. The certificates of stock of the corporation shall be numbered and
shall be entered in the books of the corporation as they are issued. They
shall exhibit the holder's name and number of shares and shall be signed by
the Chairman of the Board, the Chief Executive Officer, the President, or a
Vice President, and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary. Where a certificate is countersigned (1)
by a transfer agent other than the corporation or its employee, or (2) by a
registrar other than the corporation or its employee, any other signature on
the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corporation with
the same effect as if he were such officer, transfer agent or registrar at the
date of issue.
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TRANSFERS OF STOCK
36. Transfers of stock shall be made on the books of the corporation
only by the person named in the certificate or by attorney, lawfully
constituted in writing, and upon surrender of the certificate therefor.
FIXING RECORD DATE
37. (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
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty nor less than ten days before the date of such meeting.
If no record date is fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of
business on the day next preceding the date on which the meeting is held. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
(b) In order that the corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect
of any change, conversion or exchange of stock, or for the purpose of any
other lawful action, the Board 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, and which record date shall be not more than sixty
days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto.
REGISTERED STOCKHOLDERS
38. The corporation shall be entitled to treat the holder of record 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 on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of
Delaware.
LOST CERTIFICATES
39. The Board of Directors may authorize the issue of a new certificate
of stock in the place of any certificate theretofore issued by the
corporation, alleged to have been lost or destroyed, and the Board of
Directors may, in their discretion, require the owner of the lost or destroyed
certificate, or his legal representatives, to give the corporation a bond
sufficient to indemnify the corporation against any claim that may be made
against it on account of the alleged loss of any such certificate and to
furnish such proof of the loss or destruction of such certificate as they
shall deem proper and to comply with such other regulations as the Board shall
from time to time fix including advertising such loss or destruction in such
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manner as the Board of Directors may require. A new certificate may be issued
without requiring any bond when, in the judgment of the Board of Directors, it
is proper to do so.
INSPECTION OF BOOKS AND RECORDS
40. The Directors shall determine from time to time whether, and, if
allowed, when and under what conditions and regulations the books and records
of the corporation (except such as may by statute be specifically open to
inspection) or any of them shall be open to the inspection of the
stockholders, and the stockholders' rights in this respect are and shall be
restricted and limited accordingly.
CHECKS
41. All checks or demands for money and notes of the corporation shall
be signed by such officer or officers as the Board of Directors may from time
to time designate.
FISCAL YEAR
42. The fiscal year shall begin the first day of January each year.
DIVIDENDS
43. Dividends upon the capital stock of the corporation, subject to the
provisions of the certificate of incorporation, if any, may be declared by
the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock.
Before payment of any dividend there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the
Directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the Directors shall think conducive to the interests of the
corporation.
DIRECTORS' ANNUAL STATEMENT
44. The Board of Directors shall present at each annual meeting, and
when called for by vote of the stockholders, at any special meeting of the
stockholders, a full and clear statement of the business and condition of the
corporation.
NOTICES
45. Whenever under the provisions 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
the 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 by telegram to the last
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business address known to the Secretary of the corporation, and such notice
shall be deemed to be given at the time when the same shall be thus mailed or
telegraphed or telephoned.
WAIVER OF NOTICE
46. Whenever, under the provisions of these by-laws or of any law, the
stockholders, Directors or committees are authorized to hold any meeting after
notice or after a particular notice, or after the lapse of any prescribed
period of time, such meeting may be held without notice or without said
particular notice or without such lapse of time by the written waiver of
notice and written consent to act, signed by every person entitled to such
notice, or entitled to be present at any such meeting or participate in any
such action. Except as otherwise provided by law, attendance of a person at a
meeting shall constitute a waiver of notice of such meeting.
AMENDMENTS
47. These by-laws may be altered, amended or repealed or new by-laws
may be adopted by the affirmative vote of the holders of at least eighty
percent (80%) of the voting power of all of the then-outstanding shares of
capital stock of the corporation, or by the affirmative vote of a majority of
the Board of Directors, provided a quorum is present, at any regular meeting
of the stockholders or of the Board of Directors or at any special meeting of
the stockholders or of the Board of Directors if notice of such alteration,
amendment, repeal or adoption of new by-laws be contained in the notice of
such special meeting.
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