EXHIBIT 3.6
AMENDED AND RESTATED BYLAWS OF
THE CHARLES SCHWAB CORPORATION
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 President. 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 President, one or more Vice Presidents, a Secretary
and a Treasurer. The Chief Executive Officer of the corporation shall be
such officer as the Board shall from time to time designate. 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. The Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the stockholders and directors and shall have
such other powers and duties as may be prescribed by the Board or by
applicable law. He shall be an ex-officio member of standing committees, if so
provided in the resolutions of the Board appointing the members of such
committees.
Section 4.07. The President. The President shall be the managing
officer of the Corporation. Subject to the control of the Board, the President
shall have general supervision, control and management of the affairs and
business of the Corporation, and general charge and supervision of all offices,
agents and employees of the Corporation; shall see that all orders and
resolutions of the Board are carried into effect; shall, in the absence of the
Chairman of the Board, preside at all meetings of the stockholders and
Board; and in general shall exercise all powers and perform all duties incident
to President and managing officer of the Corporation and such other powers and
duties as may from time to time be assigned to him by the Board or as may be
prescribed in these Bylaws.
The President may execute bonds, mortgages and other contracts
requiring a seal, under the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board to some
other officer or agent of the Corporation.
The President shall be an ex-officio member of standing committees, if
so provided in the resolutions of the Board appointing the members of such
committees.
Section 4.08. 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 4.09. 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 President, 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 4.10. 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
President 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 4.11. 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
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 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 or agent 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 or
agent or in any other capacity while serving as a director, officer, employee
or agent, 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 or agent 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.
(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) 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 sixty
(60) days after a written claim has been received by the Corporation, except
in the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty (20) 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.
(d) 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.
(e) 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.
(f) 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
he Corporation.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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).
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
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.