EXHIBIT 3(b)
BY-LAWS
OF
CLARK EQUIPMENT COMPANY
A Delaware Corporation
ARTICLE I
Offices
Section 1. Location of Offices. The location of the principal office
of the Corporation shall be in the City of South Bend, Indiana. The
Corporation may have such other offices as the business of the Corporation
may require.
ARTICLE II
Meetings of Stockholders
Section 1. Place of Meeting. Meetings of the stockholders may be
held at the principal office of the Corporation or at such other place
either within or without the State of Delaware, as may be designated by the
Board of Directors or the officer calling said meetings.
Section 2. Annual Meeting. In the absence of the designation by the
Board of Directors of another date and time, the annual meeting of
stockholders shall be held in each year on the Friday immediately following
the second Monday in May (unless such Friday shall be a legal holiday at
the place of meeting, in which event such meeting shall be held on the
first business day preceding) at the hour of 10:00 in the morning, local
time, for the purpose of electing directors and transacting such other
business as may come before the meeting. If the annual meeting for
election of directors is not held on the date designated therefor, the
Board of Directors shall cause the meeting to be held as soon thereafter as
convenient.
Section 3. Special Meetings. Special meetings of the stockholders
may be called by the holders of a majority of the outstanding shares of the
Corporation, by a majority of the members of the Board of Directors, or by
the Chief Executive Officer, at any time.
Section 4. Notice of Meetings. The Secretary shall mail written or
printed notice of the time and place of every meeting of stockholders to
each stockholder entitled to vote thereat, at his last address of record as
it appears on the records of the Corporation not less than ten nor more
than sixty days before the date of every such meeting. In the case of
special meetings, the notice shall state the purpose or purposes thereof.
Any meeting may be held without notice if all stockholders entitled to vote
are present in person or by proxy, or if notice is waived in writing,
either before or after the meeting, by those not present.
Section 5. Chairman of Meetings. The Chairman of the Board shall act
as chairman of every meeting of stockholders unless otherwise legally
determined at such meeting. Subject to the foregoing, the Chairman may
designate the President to conduct all or any part of such meeting. In the
absence of the Chairman the President shall preside.
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Section 6. Voting of Shares. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock having voting
power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which by
express provision of the statutes or of the Certificate of Incorporation, a
different vote is required, in which case such express provision shall
govern and control the decision of such question.
Each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital
stock having voting power held by such stockholder, but no proxy shall be
voted or acted upon after three years from its date, unless the proxy
provides for a longer period.
At all elections of directors, the voting shall be by ballot or in
such other manner as may be determined by the stockholders present in
person or by proxy entitled to vote at such election. With respect to any
other matter presented to the stockholders for their consideration at a
meeting, any stockholder entitled to vote may, on any question, demand a
vote by ballot.
Section 7. Voting Lists. A complete list of the stockholders
entitled to vote at each such meeting, arranged in alphabetical order, with
the address of each, and the number of shares held by each, shall be
prepared by the Secretary and shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
Section 8. Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or 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, in advance, a record date, which shall not be more than sixty nor
less than ten days before the date of such meeting, nor more than sixty
days prior to any other action. 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.
Section 9. Quorum. Unless otherwise provided by law or in the
Certificate of Incorporation, a majority of the outstanding shares, present
in person or by proxy, shall constitute a quorum for the transaction of
business at any meeting of stockholders, but the stockholders present at
any meeting, in person or by proxy, though less than a quorum, may adjourn
the meeting to some other day.
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Section 10. Business at Meetings of Stockholders. (a) At any annual
or special meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of the
Corporation who is entitled to vote with respect thereto and who complies
with the notice procedures set forth in this Section 10(a). For business
to be properly brought before an annual or special meeting by a
stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice must be delivered or mailed to and received by the Secretary of the
Corporation at the principal executive offices of the Corporation not later
than the close of business on the 10th day following the day on which
notice of the date of the annual or special meeting was mailed. A
stockholder's notice to the Secretary shall set forth as to each matter
such stockholder proposes to bring before the annual or special meeting (x)
a brief description of the business desired to be brought before the
meeting, (y) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such business and (z) the class and
number of shares of the Corporation's capital stock that are owned of
record and, if different, beneficially by such stockholder. Notwithstanding
anything in these by-laws to the contrary, no business shall be brought
before or conducted at an annual or special meeting except in accordance
with the provisions of this Section 10(a). The officer of the Corporation
or other person presiding over the annual or special meeting shall, if the
facts so warrant, determine that business was not properly brought before
the meeting in accordance with the provisions of this Section 10(a) and, if
he should so determine, shall so declare to the meeting, and any such
business so determined to be not properly brought before the meeting shall
not be transacted.
(b) Only persons who are nominated in accordance with the procedures
set forth in these By-Laws 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 at which directors are
to be elected only (i) by or at the direction of the Board of Directors or
(ii) 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 10(b). Such nominations, other than
those made by or at the direction of the Board of Directors, shall be made
by timely notice in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice shall be delivered or mailed to and received
at the principal executive offices of the Corporation by the Secretary of
the Corporation not later than the close of business on the 10th day
following the day on which notice of the date of the meeting was mailed.
Such stockholder's notice shall set forth (x) as to each person whom such
stockholder proposes to nominate for election or re-election as a director,
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or as otherwise
required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (including such person's written consent
to being named in a proxy statement as a nominee and to serving as a
director if elected); and (y) as to the stockholder giving notice (a) the
name and address, as they appear on the Corporation's books, of such
stockholder and (b) the class and number of shares of the Corporation's
capital stock that are owned of record and, if different, beneficially by
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such stockholder. At the request of the Board of Directors, any person
nominated by the Board of Directors for election as a director shall
furnish to the Secretary of the Corporation that information required to be
set forth in a stockholder's notice of nomination which pertains to the
nominee. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the provisions of this
Section 10(b). The officer of the Corporation or other person presiding at
the meeting shall, if the facts so warrant, determine that a nomination was
not made in accordance with such provisions and, if he should so determine,
shall so declare to the meeting, and the defective nomination shall be
disregarded.
ARTICLE III
Directors
Section 1. Number, Tenure and Qualifications. The business and
affairs of the Corporation shall be managed by the Board of Directors. The
number of directors shall be not less than seven nor more than twelve, as
determined by resolution adopted by a majority of the whole Board. No more
than one-third of the directors may be employees of the Corporation. The
directors shall be elected at the annual meeting of the stockholders,
except as provided in Section 5 of this Article. Each director elected
shall hold office until his successor is elected and qualified or until his
earlier resignation or removal.
Section 2. Regular Meetings. A regular annual meeting of the Board
of Directors shall be held immediately after the adjournment of each annual
meeting of stockholders, and other regular meetings of the Board of
Directors may be held at such times as the Board shall by resolution
appoint, and a written or printed notice specifying the time and place of
each such regular meeting shall be given to each director at his last
address of record as it appears on the records in the office of the
Corporation, at least five days before the date of such regular meeting.
Section 3. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, or the President or
Secretary or by five or more members of the Board by written or printed
notice thereof to each director at his last address of record as it appears
on the records in the office of the Corporation, at least three days before
the date of such proposed meeting. Such notice shall state the time, place
and purpose or purposes of every such meeting. When, in the opinion of the
Chief Executive Officer, circumstances exist which justify accelerated
action, a special meeting of the Board of Directors may be called by the
Chief Executive Officer or Secretary by sending notice thereof by telegram,
radiogram or cablegram to each director at his last address of record as it
appears on the records in the office of the Corporation, at least 24 hours
before the date of such proposed meeting. Such notice shall state the
time, place and purpose or purposes of every such meeting.
Section 4. Quorum. Except as provided in Sections 1 and 6 of this
Article, a majority of the Board of Directors shall be necessary to
constitute a quorum for the transaction of business, and the acts of a
majority of the directors present at a meeting at which a quorum is present
shall be the acts of the Board of Directors. The directors present at any
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meeting, though less than a quorum, may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 5. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be
filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election of directors and until their successors shall be elected and
qualified.
Section 6. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate such committees as the
Board may desire, each committee to consist of one or more of the directors
of the Corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any such committee,
to the extent provided in the resolutions designating it, may have and may
exercise the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, but no committee
shall have the power or authority in reference to amending the Certificate
of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to
the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the by-laws of the Corporation; and, unless the
resolution designating such committee shall expressly so provide, no
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock (other than stock issued pursuant to a
stock option plan adopted by the Corporation). To the extent provided in
the resolutions designating it, any such committee may authorize the seal
of the Corporation to be affixed to all papers which may require it. In
the absence or disqualification of any member of any committee, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or she or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in
the place of any such absent or disqualified member. Each committee shall
keep regular minutes of its meetings and make a report of its proceedings
and actions to the Board of Directors when required. A majority of a
quorum 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 shall have power at any time, by resolution passed by a
majority of the whole Board, to change the membership of any such
committee, to fill vacancies in it, or to dissolve it.
Section 7. Action by Consent. Unless otherwise restricted by the
Certificate of Incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof designated pursuant to Section 6 of this Article, may be
taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing and such writing or writings are
filed with the minutes of proceedings of the Board or committee.
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Section 8. Telephonic Meetings. Members of the Board of Directors or
any committee thereof designated pursuant to Section 6 of this Article may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section shall constitute presence in person at
such meeting.
Section 9. Meetings, Place. Meetings of the Board of Directors shall
be held at such place either within or without the State of Delaware, as
shall be stated in the notice thereof.
Section 10. Compensation of Directors and Committees. No director
shall receive any salary or compensation for his services as a director or
member of any committee of the Board designated pursuant to Section 6 of
this Article except that directors' fees in such amounts as shall be
determined by the Board of Directors from time to time may be paid to each
director for (a) attendance at any regular or special meeting of the Board
of Directors or of any such committee, and (b) services as a director
performed between meetings. In addition, the Board may adopt and implement
a retirement plan for those members of the Board who are not employees of
the Corporation that will provide for the payment of monthly benefits to
such directors upon their retirement from service on the Board.
Section 11. Resignation. A director may resign at any time by giving
written notice to the Chairman of the Board of Directors, to the President,
or to the Secretary. Unless otherwise stated in such notice of resignation
the acceptance thereof shall not be necessary to make it effective; and
such resignation shall take effect at the time specified therein, or in the
absence of such specification, it shall take effect upon the receipt
thereof.
ARTICLE IV
Officers
Section 1. Regular Officers. The Board of Directors shall elect a
President and may elect a Chairman of the Board, one of whom shall be
elected Chief Executive Officer. The Board of Directors shall also elect
one or more Vice Presidents, a Secretary, a Treasurer, and a Controller.
In addition, the Board of Directors may elect one or more Assistant
Secretaries, one or more Assistant Treasurers and may elect such other
officers and appoint such agents as the Board may determine. None of said
officers, except the Chief Executive Officer, Chairman of the Board, and
the President, need be a director. Any combination of offices may be held
by the same person, except that the office of Vice President may not be
held in combination with the office of Chairman or the office of President.
One or more Vice Presidents may be given additional designations, such as
Executive Vice President, Senior Vice President, Group Vice President, and
the like. The Chief Executive Officer may add to the title of any officer
additional words indicating the officer's duties. Subject to the above
restrictions, for any reason that the Board of Directors may deem
sufficient, whether occasioned by absence or otherwise, the Board may
delegate all or any of the powers or duties of any officer to any other
officer or director.
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Section 2. Compensation. The compensation of all officers of the
Corporation shall be fixed by the Board of Directors or such committee of
the Board as the Board of Directors may designate by resolution passed by a
majority of the whole Board. No officer shall be disqualified from
receiving such compensation by reason of the fact that he is also a
director of the Corporation.
Section 3. Term of Office and Removal. Each officer shall hold
office for the term for which he was elected, or until his successor is
elected and qualified, or until his death, resignation, or removal in the
manner herein provided. Any officer or agent selected by the Board of
Directors may be removed with or without cause by the Board of Directors
or, with the approval of the Governance Committee, by the Chief Executive
Officer, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
Section 4. Vacancies. A vacancy in any office by reason of death,
resignation, removal, disqualification or otherwise, may be filled by the
Board of Directors for the unexpired portion of the term.
Section 5. Resignation. Any officer may resign at any time upon
written notice to the Corporation. Unless otherwise stated in such notice
of resignation, the acceptance thereof shall not be necessary to make it
effective; and such resignation shall take effect at the time specified
therein, or in the absence of such specification, it shall take effect upon
the receipt thereof.
ARTICLE V
Duties of Officers
Section 1. Chief Executive Officer. Either the Chairman of the Board,
or the President, as the Board of Directors shall determine, shall be the
Chief Executive Officer of the Corporation. The Chief Executive Officer
shall be the chief executive and administrative officer of the Corporation
and, subject to the control of the Board of Directors, shall have general
management and control of the affairs and business of the Corporation. The
officers of the Corporation shall be responsible to him for the proper and
faithful discharge of their duties and shall make such reports to him with
respect to the business of the Corporation under their charge as he may
from time to time require. He shall have such other powers and perform
such other duties as from time to time may be assigned to him by the Board
of Directors or an appropriate committee thereof authorized pursuant to
Section 6 of Article III.
It shall be the duty of the Chief Executive Officer to present to the
stockholders at least fifteen days before the annual stockholders' meeting,
a report showing the condition of the Corporation at the close of the
preceding year and a summary of its operations during that year.
It also shall be the duty of the Chief Executive Officer to present at
each annual meeting of the Board of Directors a complete report covering
the Corporation's operations for the preceding year and its condition at
the end of the year.
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Section 2. The Chairman of the Board. The Chairman of the Board shall,
unless he designates the President, preside over all meetings of the
stockholders and the Board of Directors. He shall have such other powers
and perform such other duties as from time to time may be assigned to him
by the Board of Directors or an appropriate committee authorized pursuant
to Section 6 of Article III.
Section 3. The President. In the absence of the Chairman, the
President shall exercise the powers and assume the duties of that office.
He shall have such other powers and perform such duties as from time to
time may be assigned to him by the Board of Directors or an appropriate
committee thereof authorized pursuant to Section 6 of Article III.
Section 4. The Vice President. There may be as many Vice Presidents
as the Board of Directors from time to time shall elect, and they shall
have such powers and duties as the Chief Executive Officer may from time to
time authorize.
Section 5. The Secretary. The Secretary shall record all the
proceedings of the meetings of stockholders and the Board of Directors in
books to be kept for that purpose, and perform such other duties as shall
be assigned to him by the Board of Directors, the Chairman or the
President. He shall, when required hereunder, give or cause to be given,
notice of all meetings of the stockholders and of the Board of Directors
and shall perform such other duties as may be prescribed by the Board of
Directors, Chairman or the President, under whose supervision he shall be.
He shall keep in safe custody the seal of the Corporation and may affix the
seal to any instrument requiring the same.
Section 6. The Assistant Secretary. The Assistant Secretary, or if
there be more than one, the Assistant Secretaries in the order determined
by the Board of Directors (or if there be no such determination, then in
the order of their election), shall, in the absence of the Secretary or in
the event of his inability or refusal to act, perform the duties and
exercise the powers of the Secretary and shall perform such other duties
and have such other powers as shall be assigned by the Board of Directors,
the Chairman or the President.
Section 7. The Treasurer. The Treasurer shall attend to the finances
of the Corporation and shall have the custody of its funds. He shall keep
full and accurate accounts of receipts and disbursements in books belonging
to the Corporation, and shall deposit or cause to be deposited all moneys,
and other valuable effects, in the name of and to the credit of the Corpo-
ration, in such depositaries as may be authorized or authorized to be
designated by the Board of Directors. If requested, the Treasurer shall
render to the Chairman, President and directors, at the annual meeting of
the Board of Directors, and at such other times as they may require it, an
account of all his transactions as Treasurer, and of the financial
condition of the Corporation. He shall be bonded in favor of the
Corporation in such amount and with such sureties as shall be determined by
the Board of Directors.
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Section 8. The Assistant Treasurer. The Assistant Treasurer, or if
there shall be more than one, the Assistant Treasurers in the order
determined by the Board of Directors (or if there be no such determination,
then in the order of their election), shall, in the absence of the
Treasurer or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the Treasurer and shall perform such
other duties and have such other powers as shall be assigned by the Board
of Directors, the Chairman or the President.
Section 9. The Controller. The Controller shall be in charge of the
accounts of the Corporation; shall have supervision over the corporate,
general and cost accounting activities; shall see that there is kept an
adequate set of books and records with respect to the earnings, expenses,
expenditures and business transactions relating to the Corporation's
accounts; shall verify the assets reported by the Treasurer and cause to be
examined the books and accounts kept by and under the supervision of the
Treasurer; shall, when requested, furnish the Board of Directors, the
Chairman, and the President with complete and accurate statements of
account showing the financial position of the Corporation, and shall
perform such other duties as the Board of Directors may from time to time
confer upon and prescribe to him.
Section 10. Bond May Be Required. In addition to the bonding
required by Section 6, the Board of Directors may, by resolution, require
any or all of the officers, employees or agents of the Corporation to be
bonded in favor of the Corporation in such amount and with such sureties as
shall be determined by the Board of Directors.
ARTICLE VI
Division Executives
Section 1. Appointment. The Chief Executive Officer may from time to
time appoint employees of the Corporation, who need not be officers of the
Corporation, as Division Executives of the administrative divisions of the
Corporation. Division Executives shall have any one of the titles of
"President," "Executive Vice President," or "Vice President" of the
administrative division concerned. The Chief Executive Officer may add to
the title additional words identifying the Division Executive's duties.
The Chief Executive Officer may terminate any such appointment at any time.
Section 2. Duties, Authority and Compensation. Division Executives
shall have such duties and authority and receive such compensation, not
inconsistent with these by-laws or any limitation or restrictions imposed
by the Board of Directors, as the Chief Executive Officer may from time to
time determine. Division Executives shall not be officers of the
Corporation for any purpose whatever by virtue of their appointment as
such.
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ARTICLE VII
Execution of Instruments
Section 1. Checks, Etc. All checks, drafts and orders for payment of
money shall be signed in the name of the Corporation by such officers or
agents as the Board of Directors shall from time to time designate or
authorize to be designated for that purpose.
Section 2. Contracts, Conveyances, Etc. The Board of Directors may
authorize any officer, or officers, agent or agents, to enter into any
contract, conveyance or other instrument, or execute and deliver any such
contract, conveyance, or other instrument in the name of and on behalf of
the Corporation, and such authority may be general or confined to specific
instances.
When the execution of any contract, conveyance, or other instrument
has been authorized by the Board of Directors without specification of the
executing officers or agents, the Chairman, if he is an employee of the
Corporation, the President or any Vice President may execute and deliver
the same in the name of and on behalf of the Corporation and may affix the
corporate seal thereto, and, if the transaction represented thereby is in
the ordinary course of business and does not exceed $250,000, the Chairman,
if he is an employee of the Corporation, the President or any Vice
President may designate any person to act as agent for the Corporation to
execute and deliver, in the name of and on behalf of the Corporation, any
and all contracts, conveyances, or other instruments in such transactions.
Any contract, conveyance or other instrument may be executed and
delivered in the name of and on behalf of the Corporation by the Chairman,
if he is an employee of the Corporation, the President or any Vice
President provided that the transaction represented thereby is in the
ordinary course of business of the Corporation.
Section 3. Attestation. The signature of any officer to any
contract, conveyance or other instrument may be attested by any other
officer of the Corporation and any officer may affix the corporate seal to
any contract, conveyance or other instrument.
ARTICLE VIII
Notices
Section 1. Method of Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these by-laws, notice
is required to be given to any director or stockholder, such notice may be
given in person or in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and, when given by mail such
notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given
by telegram, radiogram or cablegram.
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Section 2. Waiver of Notice. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these by-laws, a waiver thereof in writing, signed by
the person or persons entitled to said notice, whether before or after the
time stated therein, shall be deemed equivalent thereto.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in any
written waiver of notice.
ARTICLE IX
Fiscal Year and Corporate Seal
Section 1. Fiscal Year. The fiscal year of the Corporation shall be
the calendar year.
Section 2. Corporate Seal. The seal of the Corporation shall be
circular in form and contain the name of the Corporation and state of its
incorporation. Such seal may be altered from time to time at the
discretion of the Board of Directors. The seal may be used by causing it
or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE X
Certificates for Shares
Section 1. Certificates. The interest of each stockholder of the
Corporation shall be evidenced by certificates for shares of stock in such
form as the Board of Directors may from time to time prescribe. The
certificates of stock shall be signed by the Chairman of the Board, if he
is an employee of the Corporation, or the President or a Vice President and
by the Secretary, or the Treasurer, or an Assistant Secretary, or an
Assistant Treasurer, sealed with the seal of the Corporation or a facsimile
thereof, and countersigned and registered in such manner, if any, as the
Board of Directors may by resolution prescribe. Where any such certificate
is countersigned by a transfer agent other than the Corporation or its
employee, or registered 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.
Section 2. Transfer. The shares of stock of the Corporation shall be
transferred only upon the books of the Corporation by the holder thereof in
person or by his attorney, upon surrender for cancellation of certificates
for the same number of shares, with an assignment and power of transfer
endorsed thereon or attached thereto, duly executed, with such proof of the
authenticity of the signature as the Corporation or its agents may
reasonably require.
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Section 3. Registered Stockholders. The Corporation shall be
entitled to treat the registered holder of any share as the absolute owner
thereof for all purposes, and 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 the Corporation shall have express or other notice
thereof, save as may be otherwise provided by the statutes of the State of
Delaware.
Section 4. Lost Certificates. In the event that any certificate of
stock is lost, stolen, destroyed or mutilated, the Board of Directors may
authorize the issuance of a new certificate of the same tenor and for the
same number of shares in lieu thereof. The Board may in its discretion,
before the issuance of such new certificate, require the owner of the lost,
stolen, destroyed or mutilated certificate, or the legal representative of
the owner to make an affidavit or affirmation setting forth such facts as
to the loss, destruction or mutilation as it deems necessary, and to give
the Corporation a bond in such reasonable sum as it directs to indemnify
the Corporation.
ARTICLE XI
Indemnification of Directors, Officers and Others
Section 1. The Corporation shall, to the fullest extent permitted by
applicable law, indemnify any person (and the heirs, executors and
administrators thereof) who was or is made, or threatened to be made, a
party to an action, suit or proceeding, whether civil, criminal,
administrative or investigative, whether involving any actual or alleged
breach of duty, neglect or error, any accountability, or any actual or
alleged misstatement, misleading statement or other act or omission and
whether brought or threatened in any court or administrative or legislative
body or agency, including an action by or in the right of the Corporation
to procure a judgment in its favor and an action by or in the right of any
other corporation of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Corporation is serving or
served in any capacity at the request of the Corporation, by reason of the
fact that he, his testator or intestate is or was a director or officer of
the Corporation, or is serving or served such other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, amounts paid in
settlement, and costs, charges and expenses, including attorneys' fees,
incurred therein or in any appeal thereof.
Section 2. The Corporation shall indemnify other persons and
reimburse the expenses thereof, to the extent required by applicable law,
and may indemnify any other person to whom the Corporation is permitted to
provide indemnification or the advancement of expenses, whether pursuant to
rights granted pursuant to, or provided by, the Delaware General
Corporation Law or otherwise.
Section 3. The Corporation shall, from time to time, reimburse or
advance to any person referred to in Section 1 of this Article the funds
necessary for payment of expenses, including attorneys' fees, incurred in
connection with any action, suit or proceeding referred to in Section 1 of
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this Article, upon receipt of a written undertaking by or on behalf of such
person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (1) his acts were
committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, (2) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled or (3) his conduct was
otherwise of a character such that Delaware law would require that such
amount(s) be repaid.
Section 4. Any director or officer of the Corporation serving
(1) another corporation, of which a majority of the shares entitled to vote
in the election of its directors is held by the Corporation, or (2) any
employee benefit plan of the Corporation or any corporation referred to in
clause (1), in any capacity shall be deemed to be doing so at the request
of the Corporation.
Section 5. Any person entitled to be indemnified or to the
reimbursement or advancement of expenses as a matter of right pursuant to
this Article may elect to have the right to indemnification (or advancement
of expenses) interpreted on the basis of the applicable law in effect at
the time of the occurrence of the event or events giving rise to the
action, suit or proceeding, to the extent permitted by applicable law, or
on the basis of the applicable law in effect at the time indemnification is
sought.
Section 6. The right to be indemnified or to the reimbursement or
advancement of expenses pursuant to this Article (1) is a contract right
pursuant to which the person entitled thereto may bring suit as if the
provisions hereof were set forth in a separate written contract between the
Corporation and the director or officer, (2) is intended to be retroactive
and shall be available with respect to events occurring prior to the
adoption hereof, and (3) shall continue to exist after the rescission or
restrictive modification hereof with respect to events occurring prior
thereto.
Section 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto 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 also to be
paid the expenses of prosecuting such claim. 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 or reimbursement or advancement of
expenses to the claimant is proper in the circumstances, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the claimant is not
entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
Section 8. The invalidity or unenforceability of any provision of
this Article shall not affect the validity or enforceability of the
remaining provisions of this Article.
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ARTICLE XII
Making, Altering or Repealing By-Laws
Any provision of these by-laws may be altered or repealed, and new
by-laws may be made: (1) by the stockholders or Board of Directors at any
meeting thereof if notice of such proposed alteration, repeal or new by-law
is contained in the notice of such meeting; provided, however, that such
notice may be waived as provided in Article VIII, Section 2, if the waiver
contains notice of such proposed alteration, repeal or new by-law, or (2)
by unanimous written consent of the directors which consent shall contain
such alteration, repeal or new by-law.
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