Exhibit 3.12
THIRD RESTATED BYLAWS OF
THE CHARLES SCHWAB CORPORATION
(As Amended on May 9, 2003)
ARTICLE I
OFFICES
Section 1.01. Registered Office. The registered office of The Charles
Schwab Corporation (the "Corporation") in the State of Delaware shall be at 1209
Orange Street, Wilmington, Delaware, and the name of the registered agent at
that address shall be the Corporation Trust Company.
Section 1.02. Principal Office. The principal office for the
transaction of the business of the Corporation shall be at 101 Montgomery
Street, San Francisco, California. The Board of Directors (hereafter called the
"Board") is hereby granted full power and authority to change said principal
office from one location to another.
Section 1.03. Other Offices. The Corporation may also have an office
or offices at such other place or places, either within or without the State of
Delaware, as the Board may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01. Annual Meetings. Annual meetings of the stockholders of
the Corporation for the purpose of electing directors and for the transaction of
such other proper business as may come before such meetings shall be held each
year on a date and at a time designated by the Board.
Section 2.02. Special Meetings. Special meetings of the stockholders
for any purpose or purposes may be called by the Chairman of the Board, the
Board or a committee of the Board which has been duly designated by the Board
and whose powers and authority, as provided in a resolution of the Board or in
these Bylaws, include the power to call such meetings. Unless otherwise
prescribed by statute, the Certificate of Incorporation or these Bylaws, special
meetings may not be called by any other person or persons. No business may be
transacted at any special meeting of stockholders other than such business as
may be designated in the notice calling such meeting.
Section 2.03. Place of Meeting. The Board of Directors, the Chairman
of the Board, or a committee of the Board, as the case may be, may designate the
place of meeting for any annual meeting or for any special meeting of the
stockholders called by the Board of Directors, the Chairman of the Board, or a
committee of the Board. If no designation is so made, the place of meeting shall
be the principal office of the Corporation.
Section 2.04. Notice of Meeting. Written or printed notice, stating
the place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered by the Corporation not less than ten (10)
days nor more than sixty (60) days before the date of the meeting, either
personally or by mail, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail with postage thereon prepaid, addressed to the
stockholder at his address as it appears on the stock transfer books of the
Corporation. Such further notice shall be given as may be required by law. Only
such business shall be conducted at a special meeting of stockholders as shall
have been brought before the meeting pursuant to the Corporation's notice of
meeting. Meetings may be held without notice if all stockholders entitled to
vote are present, or if notice is waived by those not present in accordance with
Section 8.02 of these Bylaws. Any previously scheduled meeting of the
stockholders may be postponed, and (unless the Certificate of Incorporation
otherwise provides) any special meeting of the stockholders may be canceled, by
resolution of the Board upon public notice given prior to the date previously
scheduled for such meeting of stockholders.
Section 2.05. Quorum and Adjournment. Except in the case of any
meeting for the election of directors summarily ordered as provided by law, the
holders of record of a majority in voting interest of the shares of stock of the
Corporation entitled to be voted thereat, present in person or by proxy, shall
constitute a quorum for the transaction of business at any meeting of the
stockholders of the Corporation or any adjournment thereof. Where a separate
vote by a class or classes is required, a majority of the outstanding shares of
such class or classes, present in person or represented by proxy, shall
constitute a quorum entitled to take action with respect to that vote on that
matter and the affirmative vote of the majority of the shares of such class or
classes present in person or represented by proxy at the meeting shall be the
act of such class. In the absence of a forum at any meeting or any adjournment
thereof, a majority in voting interest of the shareholders present in person or
by proxy and entitled to vote thereat or, in the absence therefrom of all
stockholders, any officer entitled to preside at, or to act as secretary of such
meeting may adjourn such meeting from time to time. The Chairman of the meeting
or a majority of the shares so represented may adjourn the meeting from time to
time, whether or not there is such a quorum. No notice of the time and place of
adjourned meetings need be given except as required by law. No business may be
transacted at a meeting in the absence of a quorum other than the adjournment of
such meeting, except that if a quorum is present at the commencement of a
meeting, business may be transacted until the meeting is adjourned even though
the withdrawal of stockholders results in less than a quorum.
Section 2.06. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(i) Nominations of persons for election to the
Board and the proposal of business to be considered by the
stockholders may be made at an annual meeting of
stockholders (A) pursuant to the Corporation's notice of
meeting, (B) by or at the direction of the Board or (C) by
any stockholder of the Corporation who was a stockholder of
record at the time of giving of notice provided for in this
Bylaw, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this Bylaw.
(ii) For nominations or other business to be
properly brought before an annual meeting by a stockholder
pursuant to clause (C) of paragraph (a)(i) of this Bylaw,
the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other
business must otherwise be a proper matter for stockholder
action. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of
business on the 60th day nor earlier than the close of
business on the 90th day prior to the first anniversary of
the preceding year's annual meeting; provided, however, that
in the event that the date of the annual meeting is more
than 30 days before or more than 60 days after such
anniversary date, notice by the stockholder to be timely
must be so delivered not earlier than the close of business
on the 90th day prior to such annual meeting and not later
than the close of business on the later of the 60th day
prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting
is first made by the Corporation. In no event shall the
public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's
notice as described above. 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 all information relating to such person that is
required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and Rule 14a-11 thereunder (including such
person's written consent to being named in the proxy
statement as a nominee and to serving as a director if
elected); (B) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of
the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal
is made; and (C) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination
or proposal is made (1) the name and address of such
stockholder, as they appear on the Corporation's books, and
of such beneficial owner and (2) the class and number of
shares of the Corporation which are owned beneficially and
of record by such stockholder and such beneficial owner.
(iii) Notwithstanding anything in the second
sentence of paragraph (a)(ii) of this Bylaw to the contrary,
in the event that the number of directors to be elected to
the Board of the Corporation is increased and there is no
public announcement by the Corporation naming all of the
nominees for director or specifying the size of the
increased Board at least 70 days prior to the first
anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Bylaw shall also be
considered timely, but only with respect to nominees for any
new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of
business on the 10th day following the day on which such
public announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business
shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the Corporation's notice
of meeting. Nominations of persons for election to the Board may be
made at a special meeting of stockholders at which directors are to be
elected pursuant to the Corporation's notice of meeting (i) by or at
the direction of the Board or (ii) provided that the Board has
determined that directors shall be elected at such meeting, by any
stockholder of the Corporation who is a stockholder of record at the
time of giving of notice provided for in this Bylaw, who shall be
entitled to vote at the meeting and who complies with the notice
procedures set forth in this Bylaw. In the event the Corporation calls
a special meeting of stockholders for the purpose of electing one or
more directors to the Board, any such stockholder may nominate a
person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if
the stockholder's notice required by paragraph (a)(ii) of this Bylaw
shall be delivered to the Secretary at the principal executive offices
of the Corporation not earlier than the close of business on the 90th
day prior to such special meeting and not later than the close of
business on the later of the 60th day prior to such special meeting or
the 10th day following the day on which public announcement is first
made of the date of the special meeting and of the nominees proposed
by the Board to be elected at such meeting. In no event shall the
public announcement of an adjournment of a special meeting commence a
new time period for the giving of a stockholder's notice as described
above.
(c) General. (i) Only such persons who are nominated in
accordance with the procedures set forth in this Bylaw shall be
eligible to serve as directors and only such business shall be
conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in this
Bylaw. Except as otherwise provided by law, the Chairman of the
meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting
was made or proposed, as the case may be, in accordance with the
procedures set forth in this Bylaw and, if any proposed nomination or
business is not in compliance with this Bylaw, to declare that such
defective proposal or nomination shall be disregarded.
(i) For purposes of this Bylaw, "public
announcement" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(ii) Notwithstanding the foregoing provisions of
this Bylaw, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set
forth in this Bylaw. Nothing in this Bylaw shall be deemed
to affect any rights (A) of stockholders to request
inclusion of proposals in the Corporation's proxy statement
pursuant to Rule 14a-8 under the Exchange Act or (B) of the
holders of any series of Preferred Stock to elect directors
under specified circumstances.
Section 2.07. Voting.
(a) Each stockholder shall, at each meeting of the
stockholders, be entitled to vote in person or by proxy each share or
fractional share of the stock of the Corporation having voting rights
on the matter in question and which shall have been held by him and
registered in his name on the books of the Corporation:
(i) on the date fixed pursuant to Section 6.05 of
these Bylaws as the record date for the determination of
stockholders entitled to notice of and to vote at such
meeting, or
(ii) if no such record date shall have been so
fixed, then (a) at the close of business on the day next
preceding the day on which notice of the meeting shall be
given or (b) if notice of the meeting shall be waived, at
the close of business on the day next preceding the day on
which the meeting shall be held.
(b) Shares of its own stock belonging to the Corporation or
to another corporation, if a majority of the shares entitled to vote
in the election of directors in such other corporation is held,
directly or indirectly, by the Corporation, shall neither be entitled
to vote nor be counted for quorum purposes. Nothing in this section
shall be construed as limiting the right of the Corporation to vote
stock, including but not limited to its own stock, held by it in a
fiduciary capacity. Persons holding stock of the Corporation in a
fiduciary capacity shall be entitled to vote such stock. Persons whose
stock is pledging shall be entitled to vote, unless in the transfer by
the pledgor on the books of the Corporation he shall have expressly
empowered the pledgee to vote thereon, in which case only the pledgee,
or his proxy, may represent such stock and vote thereon. Stock having
voting power standing of record in the names of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants
in common, tenants by the entirety or otherwise, or with respect to
which two or more persons have the same fiduciary relationship, shall
be voted in accordance with the provisions of the General Corporation
Law of the State of Delaware.
(c) Any such voting rights may be exercised by the
stockholder entitled thereto in person or by his proxy appointed by an
instrument in writing, subscribed by such stockholder or by his
attorney thereunto authorized and delivered to the secretary of the
meeting; provided, however, that no proxy shall be voted or acted upon
after three years from its date unless said proxy shall provide for a
longer period. The attendance at any meeting of a stockholder who may
theretofore have given a proxy shall not have the effect of revoking
the same unless he shall in writing so notify the secretary of the
meeting prior to the voting of the proxy. At any meeting of the
stockholders all matters, except as otherwise provided in the
Certificate of Incorporation, in these Bylaws or by law, shall be
decided by the vote of a majority of the shares present in person or
by proxy and entitled to vote thereat and thereon, a quorum being
present. The vote at any meeting of the stockholders on any questions
shall be by ballot and each ballot shall be signed by the stockholder
voting, or by his proxy, if there be such proxy, and it shall state
the number of shares voted. The chairman of the meeting shall fix and
announce at the meeting the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will
vote at a meeting.
Section 2.08. List of Stockholders. The Secretary of the Corporation
shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the duration thereof, and may be inspected by any stockholder who is
present.
Section 2.09. Inspectors of Election. The Corporation shall, in
advance of any meeting of stockholders, appoint one or more inspectors to act at
the meeting and make a written report thereof. The Corporation may designate one
or more persons as alternate inspectors to act at the meeting. If no inspector
or alternative is able to act at a meeting of stockholders, the chairman of such
meeting shall appoint one or more inspectors to act at the meeting. Each
inspector so appointed shall first sign an oath faithfully to execute the duties
of inspector at such meeting with strict impartiality and according to the best
of his ability. The inspectors shall ascertain the number of shares outstanding
and the voting power of each, determine the shares represented at a meeting and
the validity of proxies and ballots, count all votes and ballots, determine and
retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors, and certify their determination of
the number of shares represented at the meeting and their count of all votes and
ballots. Reports of the inspectors shall be in writing and subscribed and
delivered by them to the Secretary of the Corporation. The inspectors may
appoint or retain other persons or entities to assist them in the performance of
their duties as inspectors. The inspectors need not be stockholders of the
Corporation, and any officer of the Corporation may be an inspector on any
question other than a vote for or against a proposal in which he shall have a
material interest.
Section 2.10. No Stockholder Action by Written Consent. Except as
otherwise fixed by or pursuant to the provisions of Article FOURTH of the
Certificate of Incorporation relating to the rights of holders of any class or
series of stock having a preference over the Common Stock as to dividends or
upon liquidation with respect to such class or series of stock, any action
required or permitted to be taken by the stockholders of the Corporation must be
effected at a duly called annual or special meeting of such holders and may not
be effected by any consent in writing by such stockholders.
ARTICLE III
BOARD OF DIRECTORS
Section 3.01. General Powers. The property, business and affairs of
the Corporation shall be managed by or under the direction of the Board.
Section 3.02. Number, Election and Terms. Except as otherwise fixed by
or pursuant to the provisions of Article FOURTH of the Certificate of
Incorporation relating to the rights of the holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect additional directors under specified circumstances, the
number of the directors of the Board of the Corporation shall be fixed from time
to time exclusively pursuant to a resolution adopted by a majority of the total
number of directors which the Corporation would have if there were no vacancies.
Commencing with the 1996 annual meeting of stockholders, the directors, other
than those who may be elected by the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation,
shall be classified, with respect to the time for which they severally hold
office, into three classes, as nearly equal in number as is reasonably possible,
one class to be originally elected for a term expiring at the annual meeting of
stockholders to be held in 1997, the second class to be originally elected for a
term expiring at the annual meeting of stockholders to be held in 1998, and the
third class to be originally elected for a term expiring at the annual meeting
of stockholders to be held in 1999, with each director to hold office to hold
office until his or her successor is duty elected and qualified. At each annual
meeting of the stockholders of the Corporation, commencing with the 1997 annual
meeting, the successors of the class of directors whose term expires at that
meeting shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year of their
election, with each director to hold office until his or her director shall have
been duly elected and qualified.
Section 3.03. Procedure for Election of Directors; Required Vote.
Election of directors at all meetings of the stockholders at which directors are
to be elected shall be by ballot, and, except as otherwise fixed by or pursuant
to the provisions of Article FOURTH of the Certificate of Incorporation relating
to the rights to the holders of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation to elect directors
under specified circumstances, a plurality of the votes cast thereat shall elect
directors.
Section 3.04. Resignations. Any director of the Corporation may resign
at any time by giving written notice to the Board or to the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time be not specified, it shall take effect immediately upon
its receipt; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 3.05. Removal. Subject to the rights of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect directors under specified circumstances, any director may
be removed from office at any time, but only for cause and only by the
affirmative vote of the holders of 80% of the combined voting power of the then
outstanding shares of stock entitled to vote generally in the election of
directors, voting together as a single class.
Section 3.06. Vacancies. Subject to applicable law and except as
otherwise provided for or fixed by or pursuant to the provisions of Article
FOURTH of the Certificate of Incorporation relating to the rights of the holders
of any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect directors under specified circumstances,
and unless the Board of Directors otherwise determines, vacancies resulting from
death, resignation, retirement, disqualification, removal from office or other
cause, and newly created directorships resulting from any increase in the
authorized number of directors, may be filled only by the affirmative vote of a
majority of the remaining directors, though less than a quorum of the Board of
Directors, and directors so chosen shall hold office for a term expiring at the
annual meeting of stockholders at which the term of office of the class to which
they have been elected expires and until such director's successor shall have
been duly elected and qualified. No decrease in the number of authorized
directors constituting the Board of Directors of the Corporation shall shorten
the term of any incumbent director.
Section 3.07. Place of Meeting, Etc. The Board may hold any of its
meetings at such place or places within or without the State of Delaware as the
Board may from time to time by resolution designate or as shall be designated by
the person or persons calling the meeting or in the notice or a waiver of notice
of any such meeting. Directors may participate in any regular or special meeting
of the Board by means of conference telephone or similar communications
equipment pursuant to which all persons participating in the meeting of the
Board can hear each other, and such participation shall constitute presence in
person at such meeting.
Section 3.08. First Meeting. The Board shall meet as soon as
practicable after each annual election of directors and notice of such first
meeting shall not be required.
Section 3.09. Regular Meetings. Regular meetings of the Board may be
held at such times as the Board shall from time to time by resolution determine.
If any day fixed for a regular meeting shall be a legal holiday at the place
where the meeting is to be held, then the meeting shall be held at the same hour
and place on the next succeeding business day not a legal holiday. Except as
provided by law, notice of regular meetings need not be given.
Section 3.10. Special Meetings. Special meetings of the Board may be
called by the Chairman of the Board of Directors or the Chief Executive Officer.
Notice of any special meeting of directors shall be given to each director at
his business or residence in writing by hand delivery, first-class or overnight
mail or courier service, telegram or facsimile transmission, or orally by
telephone. If mailed by first-class mail, such notice shall be deemed adequately
delivered when deposited in the United States mails so addressed, with postage
thereon prepaid, at least five (5) days before such meeting. If by telegram,
overnight mail or courier service, such notice shall be deemed adequately
delivered when the telegram is delivered to the telegraph company or the notice
is delivered to the overnight mail or courier service company at least
twenty-four (24) hours before such meeting. If by facsimile transmission, such
notice shall be deemed adequately delivered when the notice is transmitted at
least twelve (12) hours before such meeting. If by telephone or by hand
delivery, the notice shall be given at least twelve (12) hours prior to the time
set for the meeting. Such notice may be waived by any director and any meeting
shall be a legal meeting without notice having been given if all the directors
shall be present thereat or if those not present shall, either before or after
the meeting, sign a written waiver of notice of, or a consent to, such meeting
or shall after the meeting sign the approval of the minutes thereof. All such
waivers, consents or approvals shall be filed with the corporate records or be
made a part of the minutes of the meeting.
Section 3.11. Quorum and Manner of Acting. Except as otherwise
provided in the Certificate of Incorporation or these Bylaws or by law, the
presence of a majority of the total number of directors then in office shall be
required to constitute a quorum for the transaction of business at any meeting
of the Board. Except as otherwise provided in the Certificate of Incorporation
or these Bylaws or by law, all matters shall be decided at any such meeting, a
quorum being present, by the affirmative votes of a majority of the directors
present. In the absence of a quorum, a majority of directors present at any
meeting may adjourn the same from time to time until a quorum shall be present.
Notice of any adjourned meeting need not be given. The directors shall act only
as a Board, and the individual directors shall have no power as such.
Section 3.12. Action by Consent. Any action required or permitted to
be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
Board or of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or committee.
Section 3.13. Compensation. The directors shall receive only such
compensation for their services as directors as may be allowed by resolution of
the Board. The Board may also provide that the Corporation shall reimburse each
such director for any expense incurred by him on account of his attendance at
any meetings of the Board or Committees of the Board. Neither the payment of
such compensation nor the reimbursement of such expenses shall be construed to
preclude any director from serving the Corporation or its subsidiaries in any
other capacity and receiving compensation therefor.
Section 3.14. Executive Committee. There may be an Executive Committee
of two or more directors appointed by the Board, who may meet at stated times,
or in notice to all by any of their own number, during the intervals between the
meetings of the Board; they shall advise and aid the officers of the Corporation
in all matters concerning its interest and the management of its business, and
generally perform such duties and exercise such powers as may be directed or
delegated by the Board from time to time. The Board of Directors may also
designate, if it desires, other directors as alternate members who may replace
any absent or disqualified member of the Executive Committee at any meeting
thereof. To the full extent permitted by law, the Board may delegate to such
committee authority to exercise all the powers of the Board while the Board is
not in session. Vacancies in the membership of the committee shall be filled by
the Board at a regular meeting or at a special meeting for that purpose. In the
absence or disqualification of any member of the Executive Committee and any
alternate member in his or her place, the member or members of the Executive
Committee present at the meeting and not disqualified from voting, whether or
not he or she or they constitute a quorum, may, by unanimous vote, appoint
another member of the Board of Directors to act at the meeting in the place of
the absent or disqualified member. The Executive Committee shall keep written
minutes of its meeting and report the same to the Board when required. The
provisions of Sections 3.09, 3.10, 3.11 and 3.12 of these Bylaws shall apply,
mutatis mutandis, to any Executive Committee of the Board.
Section 3.15. Other Committees. The Board may, by resolution passed by
a majority of the whole Board, designate one or more other committees, each such
committee to consist of one or more of the directors of the Corporation. The
Board of Directors may also designate, if it desires, other directors as
alternate members who may replace any absent or disqualified member of any such
committee at any meeting thereof. To the full extent permitted by law, any such
committee shall have and may exercise such powers and authority as the Board may
designate in such resolution. Vacancies in the membership of a committee shall
be filled by the Board at a regular meeting or a special meeting for that
purpose. Any such committee shall keep written minutes of its meeting and report
the same to the Board when required. In the absence or disqualification of any
member of any such committee and any alternate member or members of any such
committee present at the meeting and not disqualified from voting, whether or
not he or she or they constitute a quorum, may, by unanimous vote, appoint
another member of the Board of Directors to act at the meeting in the place of
the absent or disqualified member. The provisions of Section 3.09, 3.10, 3.11
and 3.12 of these Bylaws shall apply, mutatis mutandis, to any such committee of
the Board.
ARTICLE IV
OFFICERS
Section 4.01. Number. The officers of the Corporation shall be a
Chairman of the Board, a Chief Executive Officer, a President, one or more Vice
Presidents, a Secretary and a Treasurer. The Board may also elect one or more
Assistant Secretaries and Assistant Treasurers. A person may hold more than one
office providing the duties thereof can be consistently performed by the same
person.
Section 4.02. Other Officers. The Board may appoint such other
officers 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.
Section 4.03. Election. Each of the officers of the Corporation,
except such officers as may be appointed in accordance with the provisions of
Section 4.02 or Section 4.05 of this Article, shall be chosen annually by the
Board and shall hold his office until he shall resign or shall be removed or
otherwise disqualified to serve, or his successor shall be elected and
qualified.
Section 4.04. Salaries. The salaries of all executive officers of the
Corporation shall be fixed by the Board or by such committee of the Board as may
be designated from time to time by a resolution adopted by a majority of the
Board.
Section 4.05. Removal; Vacancies. Subject to the express provisions of
a contract authorized by the Board, any officer may be removed, either with or
without cause, at any time by the Board or by any officer upon whom such power
of removal may be conferred by the Board. Any vacancy occurring in any office of
the Corporation shall be filled by the Board.
Section 4.06. Chairman of the Board. The Chairman of the Board shall
be an officer of the Corporation, subject to the control of the Board, and shall
report directly to the Board. The Chairman of the Board shall play an active
role in helping to build and lead the Corporation, working closely with the
Chief Executive Officer to set the Corporation's strategy, and shall be the
co-spokesman for the Corporation along with the Chief Executive Officer. The
Chairman of the Board shall preside at all meetings of the stockholders and of
the Board and shall have such other powers and duties as may be prescribed by
the Board or by applicable law.
Section 4.07. Chief Executive Officer. The Chief Executive Officer
shall be an officer of the Corporation and shall have general supervision and
direction over the business and affairs of the Corporation, subject to the
control of the Board and the provisions of Section 4.06 of this Article IV, and
shall report directly to the Board. The Chief Executive Officer shall see that
all orders and resolutions of the Board are carried into effect; shall, if
present and in the absence of the Chairman of the Board, preside at meetings of
the stockholders and of the Board; and in general shall exercise all powers and
perform all duties as may from time to time be assigned to the Chief Executive
Officer by the Board or as may be prescribed in these Bylaws.
Section 4.08. The President. The President shall perform such senior
duties in connection with the operations of the Corporation as the Chief
Executive Officer of the Corporation, or, if the President and the Chief
Executive Officer are the same person, the Board, shall from time to time
determine. The President shall report directly to the Chief Executive Officer
unless the President and the Chief Executive Officer are the same person, in
which case the President shall report directly to the Board. In the absence of
the Chief Executive Officer or in the event of his inability or refusal to act,
the President shall perform the duties of the Chief Executive Officer and, when
so acting, shall have all the powers of and be subject to all the restrictions
upon the Chief Executive Officer.
Section 4.09. The Vice Presidents. In the absence of the President or
in the event of his inability or refusal to act, the Vice President (or in the
event there be more than one Vice President, the Vice Presidents in the order
designated, or in the absence of any designation, then in the order of their
election) shall perform the duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President. The Vice Presidents shall perform such other duties and have such
other powers as the Board may from time to time prescribe.
Section 4.10. The Secretary and Assistant Secretary. The Secretary
shall attend all meetings of the Board and all meetings of the stockholders and
record all the proceedings of the meetings of the Corporation and of the Board
in a book to be kept for that purpose and shall perform like duties for the
standing and special committees of the Board when required. He shall give, or
cause to be given, notice of all meetings of the stockholders and special
meetings of the Board, and shall perform such other duties as may be prescribed
by the Board or Chief Executive Officer, under whose supervision he shall act.
He shall have custody of the corporate seal of the Corporation and he, or an
assistant secretary, shall have authority to affix the same to any instrument
requiring it and, when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The Board may give general authority to
any other officer to affix the seal of the Corporation and to attest the
affixing by his signature.
The assistant secretary, or if there be more than one, the assistant
secretaries in the order determined by the Board (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 his refusal to act, perform
the duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board may from time to time prescribe.
Section 4.11. The Treasurer. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all 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.
He shall disburse the funds of the Corporation as may be ordered by
the Board, making proper vouchers for such disbursements, and shall render to
the Chief Executive Officer and the Board, at its regular meetings, or when the
Board so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation.
If required by the Board, he shall give the Corporation a bond (which
shall be renewed every six (6) years) in such sum and with such surety or
sureties as shall be 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.
Section 4.12. The Assistant Treasurer. The Assistant Treasurer, or if
there be more than one, the assistant treasurers in the order determined by the
Board (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 the
Board may from time to time prescribe.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 5.01. Checks, Drafts, Etc. All checks, drafts or other orders
for payment of money, notes or other evidence of indebtedness payable by the
Corporation and all contracts or agreements shall be signed by such person or
persons and in such manner as, from time to time, shall be determined by
resolution of the Board. Each such person or persons shall give such bond, if
any, as the Board may require.
Section 5.02. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board may select, or
as may be selected by any officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation to whom such power shall
have been delegated by the Board. For the purpose of deposit and for the purpose
of collection for the account of the Corporation, the Chief Executive Officer or
President, any Vice President or the Treasurer (or any other officer or
officers, assistant or assistants, agent or agents, or attorney or attorneys of
the Corporation who shall from time to time be determined by the Board) may
endorse, assign and deliver checks, drafts and other orders for the payment of
money which are payable to the order of the Corporation.
Section 5.03. General and Special Bank Accounts. The Board may from
time to time authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositories as the Board may
select or as may be selected by any officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation to whom
such power shall have been delegated by the Board. The Board may make such
special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these Bylaws, as it may deem expedient.
ARTICLE VI
SHARES AND THEIR TRANSFER
Section 6.01. Certificates for Stock. Every owner of stock of the
Corporation shall be entitled to have a certificate or certificates, to be in
such form as the Board shall prescribe, certifying the number and class of
shares of the stock of the Corporation owned by him. The certificates
representing shares of such stock shall be numbered in the order in which they
shall be issued and shall be signed in the name of the Corporation by the
Chairman, Vice Chairman, Chief Executive Officer or President or a Vice
President, and by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer. Any of or all of the signatures on the certificates may be
a facsimile. In case any officer, transfer agent or registrar who has signed, or
whose facsimile signature has been placed upon, any such certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, such certificate may nevertheless be issued by the Corporation with
the same effect as though the person who signed such certificate, or whose
facsimile signature shall have been placed thereupon, were such officer,
transfer agent or registrar at the date of issue. A record shall be kept of the
respective names of the persons, firms or corporations owning the stock
represented by such certificates, the number and class of shares represented by
such certificates, respectively, and the respective dates thereof, and in case
of cancellation, the respective dates of cancellation. Every certificate
surrendered to the Corporation for exchange or transfer shall be canceled, and
no new certificate or certificates shall be issued in exchange for any existing
certificate until such existing certificate shall have been so canceled, except
in cases provided for in Section 6.04.
Section 6.02. Transfers of Stock. Transfers of shares of stock of the
Corporation shall be made only on the books of the Corporation by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary, or with a transfer clerk or a
transfer agent appointed as provided in Section 6.03, and upon surrender of the
certificate or certificates for such shares properly endorsed and the payment of
all taxes thereon. The person in whose name shares of stock stand on the books
of the Corporation shall be deemed the owner thereof for all purposes as regards
the Corporation. Whenever any transfer of shares shall be made for collateral
security, and not absolutely, such fact shall be so expressed in the entry of
transfer if, when the certificate or certificates shall be presented to the
Corporation for transfer, both the transferor and the transferee request the
Corporation to do so.
Section 6.03. Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these Bylaws,
concerning the issue, transfer and registration of certificates for shares of
the stock of the Corporation. It may appoint, or authorize any officer or
officers to appoint, one or more transfer clerks or one or more transfer agents
and one or more registrars, and may require all certificates for stock to bear
the signature or signatures of any of them.
Section 6.04. Lost, Stolen, Destroyed, and Mutilated Certificates. In
any case of loss, theft, destruction or mutilation of any certificate of stock,
another may be issued in its place upon proof of such loss, theft, destruction
or mutilation and upon the giving of a bond of indemnity to the Corporation in
such form and in such sum as the Board may direct; provided, however, that a new
certificate may be issued without requiring any bond when, in the judgment of
the Board, it is proper so to do.
Section 6.05. Fixing Date for Determination of Stockholders of Record.
In order that the Corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders, or to receive payment of any
dividend or other distribution or allotment of any rights or to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action except for consenting to corporate action in
writing without a meeting, the Board of Directors may fix a record date, which
shall not precede the date the resolution fixing the record date is adopted and
which record date shall not be more than sixty (60) nor less than ten (10) days
before the date of any meeting of stockholders, nor more than sixty (60) days
prior to the time for such other action as herein before described; provided,
however, that 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 preceding the day
on which notice is given or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held and, for determining
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or to exercise any rights in respect of any change,
conversion or exchange of stock or any other lawful action except for consenting
to corporate action in writing without a meeting, the record date shall be the
close of business on the day on which the Board of Directors adopts a resolution
relating thereto.
For purposes of determining the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix a
record date, which 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 ten (10) days after the date upon which the resolution
fixing the record date is adopted, as of which shall be determined the
stockholders of record entitled to consent to corporate action in writing
without a meeting. If no record date has been fixed by the Board of Directors
and no prior action by the Board of Directors is required by the Delaware
General Corporation Law, the record date shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation in the manner prescribed in Section 2.09 hereof. If
no record date has been fixed by the Board of Directors and prior action by the
Board of Directors is required by the Delaware General Corporation Law with
respect to the proposed action, the record date for determining stockholders
entitled to consent to corporate action writing shall be the close of business
on the day in which the Board of Directors adopts the resolutions taking such
prior action.
ARTICLE VII
INDEMNIFICATION
Section 7.01. Indemnification of Officers, Directors, Employees and
Agents; Insurance.
(a) Right to Indemnification. Each person who was or is made
a party or is threatened to be made a party to or is otherwise
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a director or officer of
the Corporation or is or was serving at the request of the Corporation
as a director, officer, employee, trustee, agent or fiduciary of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity as a director, officer,
employee, trustee, agent, fiduciary, or in any other capacity, while
serving as a director, officer, employee, agent, trustee or fiduciary
of another corporation shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification
rights than permitted prior thereto), against all expense, liability
and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred
or suffered by such indemnitees in connection therewith and such
indemnification shall continue as to an indemnitee who has ceased to
be a director, officer, employee, trustee, agent, fiduciary or in any
other capacity, and shall inure to the benefit of the indemnitee's
heirs, executors and administrators; provided, however, that except as
provided in paragraph (c) hereof with respect to proceedings to
enforce rights to indemnification, the Corporation shall indemnify any
such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof)
was authorized or is subsequently ratified by the Board of Directors
of the Corporation. The Corporation shall not be liable to indemnify
the indemnitee with regard to any award in any proceeding if the
Corporation was not given a reasonable and timely opportunity, at its
expense, to meaningfully participate in the defense of such
proceeding.
(b) Right to Advancement of Expenses. The right to
indemnification conferred in paragraph (a) of this Section shall
include the right to be paid by the Corporation the expenses
(including attorneys' fees) incurred in defending any proceeding for
which such right to indemnification is applicable in advance of its
final disposition (hereinafter an "advancement of expenses");
provided, however, that, if the Delaware General Corporation Law
requires, an advancement of expenses incurred by an indemnitee in his
or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to
repay all amounts so advanced if it shall ultimately be determined by
final judicial decision from which there is no further right to appeal
(hereinafter a "final adjudication") that such indemnitee is not
entitled to be indemnified for such expenses under this Section or
otherwise.
(c) To obtain indemnification under this Bylaw, a claimant
shall submit to the Corporation a written request, including therein
or therewith such documentation and information as is reasonably
available to the claimant and is reasonably necessary to determine
whether and to what extent the claimant is entitled to
indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this paragraph (c),
a determination, if required by applicable law, with respect to the
claimant's entitlement thereto shall be made as follows: (1) if
requested by the claimant, by Independent Counsel (as hereinafter
defined), or (2) if no request is made by the claimant for a
determination by Independent Counsel, (i) by the Board by a majority
vote of a quorum consisting of Disinterested Directors (as hereinafter
defined), or (ii) if a quorum of the Board consisting of Disinterested
Directors is not obtainable or, even if obtainable, such quorum of
Disinterested Directors so directs, by Independent Counsel in a
written opinion to the Board, a copy of which shall be delivered to
the claimant, or (iii) if a quorum of Disinterested Directors so
directs, by the stockholders of the Corporation. In the event the
determination of entitlement to indemnification is to be made by
Independent Counsel at the request of the claimant, the Independent
Counsel shall be selected by the Board unless there shall have
occurred within two years prior to the date of the commencement of the
action, suit or proceeding for which indemnification is claimed a
"Change of Control" as defined in the Senior Executive Severance
Policy, in which case the Independent Counsel shall be selected by the
claimant unless the claimant shall request that such selection be made
by the Board. If is so determined that the claimant is entitled to
indemnification, payment to the claimant shall be made within 10 days
after such determination.
(d) Right of Indemnitee to Bring Suit. The rights to
indemnification and to the advancement of expenses conferred in
paragraphs (a) and (b) of this Section shall be a contract between the
Corporation and each director or officer of the Corporation who serves
or served in such capacity at any time while this Article VII is in
effect. Any repeal or modification of this Article VII or any repeal
or modification of relevant provisions of the Delaware General
Corporation Law or any other applicable laws shall not in any way
diminish any rights to indemnification of such director or officer or
the obligations of the Corporation hereunder. If a claim under
paragraph (a) or (b) of this Section is not paid in full by the
Corporation within thirty (30) days after a written claim pursuant to
paragraph (c) has been received by the Corporation, or in the case of
a claim for advancement of expenses, in which case the applicable
period shall also be thirty (30) days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid
amount of the claim. If successful in whole or in part in any such
suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in
a suit brought by the indemnitee to enforce a right to an advancement
of expenses) it shall be a defense that, and (ii) in any suit by the
Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking the Corporation shall be entitled to recover
such expenses upon a final adjudication that, the indemnitee has not
met any applicable standard for indemnification set forth in the
Delaware General Corporation Law. 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 suit that indemnification of the indemnitee
is proper in the circumstances because the indemnitee 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 indemnitee has not met such applicable standard
of conduct, shall create a presumption that the indemnitee has not met
the applicable standard of conduct or, in the case of such a suit
brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to
an advancement of expenses hereunder, or by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking,
the burden of proving that the indemnitee is not entitled to be
indemnified, or to such advancement of expenses, under this Section or
otherwise shall be on the Corporation.
(e) Non-Exclusivity of Rights. The rights to indemnification
and to the advancement of expenses conferred in this Section shall not
be exclusive of any other right which any person may have or hereafter
acquire under any statute, the Corporation's certificate of
incorporation, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
(f) Insurance. The Corporation may maintain insurance, at
its expense, to protect itself and any director, officer, employee or
agent of the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability or
loss, whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under the Delaware
General Corporation Law, provided that such insurance is available on
acceptable terms, which determination shall be made by the Board of
Directors or by a committee thereof.
(g) Indemnification of Employees and Agents of the
Corporation. The Corporation may, to the extent and in accordance with
the terms authorized from time to time by the board of directors,
grant rights to indemnification, and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the
provisions of this Section with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
(h) For purposes of this Section, references to "the
Corporation" shall include, in addition to the 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 other enterprise,
shall stand in the same position under this Section with respect to
the Corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this Section, references to "serving at
the request of the Corporation" shall include any service as director,
officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Section.
(j) Notwithstanding anything else in this Article VII, in
the event that the express provisions of the Delaware General
Corporation Law relating to indemnification of, or advancement of
expenses by the Corporation to, persons eligible for indemnification
or advancement of expenses under this Article VII are amended to
permit broader indemnification or advancement of expenses, then the
Corporation will provide such indemnification and advancement of
expenses to the maximum extent permitted by the Delaware General
Corporation Law.
(k) If this Article VII or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each indemnitee of the
Corporation as to costs, charges and expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement with respect to
any action, suit or proceeding, whether civil, criminal,
administrative or investigative, including an action by or in the
right of the Corporation, to the full extent permitted by any
applicable portion of this Article VII that shall not have been
invalidated and to the full extent permitted by applicable law.
(l) Notwithstanding anything else in this Article VII, at
any and all times at which the Corporation is subject to the
provisions of the California Corporations Code by virtue of the
operation of Section 2115 thereof or otherwise, the indemnification
and advancement of expenses provided by, or granted pursuant to, this
Article VII shall be in all respects limited by the provisions of the
California Corporations Code made applicable by such Section 2115 (or
such other provision of California law).
(m) If a determination shall have been made pursuant to
paragraph (c) of this Bylaw that the claimant is entitled to
indemnification, the Corporation shall be bound by such determination
in any judicial proceeding commenced pursuant to paragraph (d) of this
Bylaw.
(n) The Corporation shall be precluded from asserting in any
judicial proceeding commenced pursuant to paragraph (d) of this Bylaw
that the procedures and presumptions are not valid, binding and
enforceable and shall stipulate in such proceeding that the
Corporation is bound by all the provisions of this Bylaw.
(o) For purposes of this Bylaw:
(i) "Disinterested Director" means a director of
the Corporation who is not and was not a party to the matter
in respect of which indemnification is sought by the
claimant.
(ii) "Independent Counsel" means a law firm, a
member of a law firm, or and independent practitioner, that
is experienced in matters of corporation law and shall
include any person who, under the applicable standards of
professional conduct then prevailing, would not have a
conflict of interest in representing either the Corporation
or the claimant in an action to determine the claimant's
rights under this Bylaw.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Seal. The Board shall provide a corporate seal, which
shall be in the form of a circle and shall bear the name of the Corporation and
words and figures showing that the Corporation was incorporated in the State of
Delaware and the year of incorporation.
Section 8.02. Waiver of Notices. Whenever notice is required to be
given by these Bylaws or the Certificate of Incorporation or by law, the person
entitled to said notice may waive such notice in writing, either before or after
the time stated therein, and such waiver shall be deemed equivalent to notice.
Section 8.03. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board.
Section 8.04. Amendments. These Bylaws may be altered, amended or
repealed at any meeting of the Board or of the stockholders, provided notice of
the proposed change was given in the notice of the meeting and, in the case of a
meeting of the Board, in a notice given not less than two days prior to the
meeting; provided, however, that, in the case of amendments by stockholders,
notwithstanding any other provisions of these Bylaws or any provision of law
which might otherwise permit a lesser vote or no vote, but in addition to any
affirmative vote of the holders of any particular class or series of the capital
stock of the Corporation required by law, the Certificate of Incorporation of
these Bylaws, the affirmative vote of the holders of at least 80% of the total
voting power of all the then outstanding shares of Voting Stock of the
Corporation, voting together as a single class, shall be required to alter,
amend or repeal this Section 8.04 or any provision of Sections 2.06, 2.10, 3.02,
3.05 and 3.06 of these Bylaws.
Section 8.05. Voting Stock. Any person so authorized by the Board, and
in the absence of such authorization, the Chairman of the Board, the Chief
Executive Officer or President or any Vice President, shall have full power and
authority on behalf of the Corporation to attend and to act and vote at any
meeting of the stockholders of any corporation in which the Corporation may hold
stock and at any such meeting shall possess and may exercise any and all rights
and powers which are incident to the ownership of such stock and which as the
owner thereof the Corporation might have possessed and exercised if present. The
Board by resolution from time to time may confer like powers upon any other
person or persons.