Amended October 24, 2001
Bylaws
of
QCR HOLDINGS, INC.
A Delaware Corporation
ARTICLE I
Offices
Section 1.1 The corporation shall maintain a registered office in the State
of Delaware as required by law. The corporation may also have offices at other
places, within or without the State of Delaware, as the business of the
corporation may require.
ARTICLE II
Stockholders
Section 2.1 ANNUAL MEETING. An annual meeting of the stockholders shall be
held commencing in 1993 on the second Wednesday in October of each year, if not
a legal holiday, and if a legal holiday, then on the next succeeding business
day, or on such date as shall be determined by the board of directors, for the
election of directors and for the transaction of such other business as may come
before the meeting.
Section 2.2 SPECIAL MEETINGS. Special meetings of the stockholders may be
called by the chairman of the board, the president, the board of directors, or
at the request in writing of stockholders owning a majority of the issued and
outstanding voting stock of the corporation. Within ten days after the receipt
of such a written request, the president or another officer designated by the
president must send a notice of meeting in accordance with Section 2.5 hereof.
Section 2.3 ACTION BY STOCKHOLDERS. (a) At any annual or special meeting of
stockholders, only such new business shall be conducted, and only such proposals
shall be acted upon, as shall have been brought before the meeting by, or at the
direction of, the board of directors, or by any stockholder entitled to vote at
such meeting, provided, however, that such stockholder has complied with the
procedures set forth in this Section 2.3.
(b) For a proposal to be properly brought before a special or annual
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the secretary of the corporation as set forth in this Section 2.3.
To be timely, a stockholder's notice must be delivered, mailed or telegraphed to
the principal executive offices of the corporation not less than 30 days nor
more than 75 days prior to the date of the originally scheduled meeting,
regardless of any postponements, deferrals or adjournments of that meeting to a
later date; provided, however, that, if less than 40 days' notice of the date of
the scheduled meeting is given or made by the corporation, notice by the
stockholder, to be timely, must be so delivered, mailed or telegraphed to the
corporation not later than the close of business on the 10th day following the
day on which notice of the date of the scheduled meeting was first mailed to
stockholders. Such stockholder's notice shall set forth as to each matter the
stockholder proposes to bring before the meeting: (i) a brief description of the
proposal desired to be brought before the meeting and the reasons for conducting
such business at the meeting; (ii) the name and address, as they appear on the
corporation's books, of the stockholder proposing such business; (iii) the
number of shares of the corporation's common stock beneficially owned by such
stockholder on the date of such stockholder's notice; and (iv) any financial or
other interest of such stockholder in the proposal.
(c) The board of directors may reject any stockholder proposal not timely
made in accordance with this Section 2.3. If the board of directors determines
that the information provided in a stockholder's notice does not satisfy the
informational requirements hereof, the secretary of the corporation shall
promptly notify such stockholder of the deficiency in the notice. The
stockholder shall then have an opportunity to cure the deficiency by providing
additional information to the secretary within such period of time, not to
exceed 10 days from the date such deficiency notice is given to the stockholder,
as the board of directors shall determine. If the deficiency is not cured within
such period, or if the board of directors determines that the additional
information provided by the stockholder, together with the information
previously provided, does not satisfy the requirements of this Section 2.3, then
the board of directors may reject such stockholder's proposal. The secretary of
the corporation shall notify a stockholder in writing whether his or her
proposal has been made in accordance with the time and information requirements
hereof.
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(d) This Section 2.3 shall not prevent the consideration and approval or
disapproval at a special or annual meeting of reports of officers, directors and
committees of the board of directors, but in connection therewith no new
business shall be acted upon at any such meeting unless stated, filed and
received as herein provided.
Section 2.4 PLACE OF MEETING. The board of directors may designate any
place, either within or without the State of Delaware, as the place of meeting
for any annual meeting or for any special meeting called by the board of
directors. If no designation is made or if a special meeting is called otherwise
than by the board of directors, the place of meeting shall be the principal
place of business of the corporation.
Section 2.5 NOTICE OF MEETING. Written notice stating the place, date and
hour of the meeting, the place where the stockholder list may be examined prior
to the meeting, if different from the place of the meeting and, in the case of a
special meeting, the purpose or purposes for which the meeting is called, shall
be given in person or by mail or telegram not less than ten nor more than sixty
days before the date of the meeting, or in the case of a merger or consolidation
of the corporation requiring stockholder approval or a sale, lease or exchange
of all or substantially all of the corporation's property and assets, not less
than twenty nor more than sixty days before the date of meeting, by or at the
direction of the chairman of the board, the president, any vice president, the
secretary or the officer or persons calling the meeting, to each stockholder of
record entitled to vote at such meeting. If mailed, notice shall be deemed given
when deposited in the United States mail, postage prepaid, directed to the
stockholder at his or her address as it appears on the records of the
corporation. If notice is given by telegram, such notice shall be deemed to be
delivered when the telegram is delivered to the telegraph company. If notice is
given by overnight delivery service, such notice will be deemed delivered on the
next business day after the date of delivery to a nationally recognized
overnight delivery service. When a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken, unless
the adjournment is for more than thirty days, or unless, after adjournment, a
new record date is fixed for the adjourned meeting, in either of which cases
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. Notice need not be given to any stockholder who
submits a written waiver of notice signed by such stockholder either before or
after any meeting. Attendance by a stockholder at a meeting of stockholders
shall constitute a waiver of notice of such meeting, except when the stockholder
attends the meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting need be specified in any waiver of
notice of such meeting.
Section 2.6 NOMINATIONS OF DIRECTORS. (a) Nominations, other than those
made by, or at the direction of, a majority of the board of directors or a
committee thereof shall be made only if timely written notice of such nomination
or nominations has been given to the secretary of the corporation. To be timely,
such notice shall be delivered to or mailed and received at the principal
executive offices of the corporation not less than 30 days nor more than 75 days
prior to the meeting irrespective of any deferrals, postponements or
adjournments thereof to a later date; provided, however, that in the event that
less than 40 days' notice or prior public disclosure of the date of the meeting
is given or made to stockholders, notice by the stockholder to be timely must be
so received not later than the close of business on the 10th day following the
day on which such notice of the date of meeting was mailed or such public
disclosure was made, whichever first occurs. Each such notice to the secretary
shall set forth: (i) the name and address of record of the stockholder who
intends to make the nomination; (ii) a representation that the stockholder is a
holder of record of shares of the corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (iii) the name, age, business and
residence addresses, and principal occupation or employment of each nominee;
(iv) a description of all arrangements or understandings between the stockholder
and each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (v) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, as then
in effect; and (vi) the consent of each nominee to serve as a director of the
corporation if so elected. The corporation may require any proposed nominee to
furnish such other information as may reasonably be required by the corporation
to determine the eligibility of such proposed nominee to serve as a director of
the corporation.
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(b) A majority of the board of directors may reject any nomination by a
stockholder not timely made or otherwise not in accordance with the terms of
this Section 2.6. If a majority of the board of directors reasonably determines
that the information provided in a stockholder's notice does not satisfy the
informational requirements of this Section 2.6 in any material respect, the
secretary of the corporation shall promptly notify such stockholder of the
deficiency in writing. The stockholder shall have an opportunity to cure the
deficiency by providing additional information to the secretary within such
period of time, not to exceed 10 days from the date such deficiency notice is
given to the stockholder, as a majority of the board of directors shall
reasonably determine. If the deficiency is not cured within such period, or if a
majority of the board of directors reasonably determines that the additional
information provided by the stockholder, together with the information
previously provided, does not satisfy the requirements of this Section 2.6 in
any material respect, then a majority of the board of directors may reject such
stockholder's nomination. The secretary of the corporation shall notify a
stockholder in writing whether his or her nomination has been made in accordance
with the time and information requirements of this Section 2.6.
Section 2.7 FIXING OF RECORD DATE. (a) In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, the board of directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the board of directors, and which record
date shall not be more than sixty nor less than ten days before the date of such
meeting. If no record date is fixed by the board of directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the board of directors may fix a new record date for the adjourned meeting.
(b) In order that the corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the board of directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
board of directors adopts the resolution relating thereto.
Section 2.8 VOTING LISTS. The officer or agent who has charge of the stock
ledger of the corporation shall prepare and make, at least ten 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 number of shares registered in his or her name, which list, for
a period of ten days prior to such meeting, shall be kept on file either at a
place within the city where the meeting is to be held and 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, and shall be open to the examination of any
stockholder, for any purpose germane to the meeting, at any time during ordinary
business hours. Such list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 2.9 STOCK LEDGER. The stock ledger shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger or the books of
the corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 2.10 QUORUM. A majority of the outstanding shares of voting stock
of the corporation, represented in person or by proxy, shall constitute a quorum
at any meeting of stockholders; provided, however, that if less than a majority
of the outstanding shares of voting stock are represented at said meeting, a
majority of the shares of voting stock so represented may adjourn the meeting.
If a quorum is present, the affirmative vote of a majority of the shares of
voting stock represented at the meeting shall be the act of the stockholders in
all matters other than the election of directors, who shall be elected by a
plurality of the votes of the shares present in person or by proxy and entitled
to vote on the election of directors, unless the vote of a greater number or
voting by classes is required by the General Corporation Law of the State of
Delaware, the certificate of incorporation or these bylaws. At any adjourned
meeting at which a quorum shall be present, any business may be transacted which
might have been transacted at the original meeting. Withdrawal of stockholders
from any meeting shall not cause failure of a duly constituted quorum at that
meeting.
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Section 2.11 PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. Every proxy
must be signed by the stockholder or his or her attorney-in-fact. A duly
executed proxy shall be irrevocable if it states that it is irrevocable, and if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the corporation generally.
Section 2.12 VOTING OF STOCK. Subject to the provisions of the certificate
of incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote for each share of the voting stock held by such
stockholder.
Section 2.13 VOTING OF STOCK BY CERTAIN HOLDERS. (a) Persons holding stock
in a fiduciary capacity shall be entitled to vote the shares so held. Persons
whose stock is pledged shall be entitled to vote, unless in the transfer by the
pledgor on the books of the corporation he or she has expressly empowered the
pledgee to vote thereon, in which case only the pledgee or his or her proxy may
represent such stock and vote thereon. 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 of such other corporation is held by the
corporation, shall neither be entitled to vote nor counted for quorum purposes,
but shares of its stock held, directly or indirectly, by the corporation in a
fiduciary capacity may be voted by it and counted for quorum purposes.
(b) Subject always to the specific directions of the board of directors,
any share or shares of stock issued by any other corporation and owned or
controlled by the corporation may be voted at any stockholders' meeting of such
other corporation by the chairman of the board or the president, if he or she be
present, or in his or her absence by any vice president. Whenever, in the
judgment of the chairman of the board or the president, or in his or her
absence, any vice president, it is desirable for the corporation to execute a
proxy or give a stockholders' consent in respect to any share or shares of stock
issued by any other corporation and owned by the corporation, such proxy or
consent shall be executed in the name of the corporation by the chairman of the
board or the president and shall be attested by the secretary without necessity
of any authorization by the board of directors. Any person or persons designated
in the manner above stated as the proxy or proxies of the corporation shall have
full right, power and authority to vote the share or shares of stock issued by
such other corporation and owned by the corporation the same as such share or
shares might be voted by the corporation.
Section 2.14 VOTING BY BALLOT. Voting in any election of directors may, if
permitted by the certificate of incorporation, be by voice vote, and voting on
any other questions shall be by voice vote unless, in each case, the presiding
officer shall order or any stockholder shall demand that voting be by ballot.
Section 2.15 INSPECTORS. The board of directors, in advance of any meeting,
may, but need not, appoint one or more inspectors of election to act at the
meeting or any adjournment thereof. If an inspector or inspectors are not
appointed, the person presiding at the meeting may, or upon the request of any
stockholder shall, appoint one or more inspectors. In case any person who may be
appointed as an inspector fails to appear or act, the vacancy may be filled by
appointment made by the directors in advance of the meeting or at the meeting by
the person presiding thereat. Each inspector, if any, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector at such meeting with strict impartiality and
according to the best of his or her ability. The inspectors, if any, shall
determine the number of shares of stock outstanding and the voting power of
each, the shares of stock represented at the meeting, the existence of a quorum,
the validity and effect of proxies, and shall receive votes or ballots, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes or ballots, determine the results, and do
such acts as are proper to conduct the election or vote with fairness to all
stockholders. On request of the person presiding at the meeting, the inspector
or inspectors, if any, shall make a report in writing of any challenge, question
or matter determined by the inspector or inspectors and execute a certificate of
any fact found by the inspector or inspectors.
ARTICLE III
Directors
Section 3.1 GENERAL POWERS. The business of the corporation shall be
managed by or under the direction of its board of directors, except as otherwise
provided in the certificate of incorporation.
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Section 3.2 NUMBER AND QUALIFICATIONS. (a) The number of directors of the
corporation shall be not less than three nor more than nine or such other number
as may be determined from time to time as provided in the certificate of
incorporation.
(b) Directors need not be stockholders of the corporation, citizens of the
United States or residents of the State of Delaware.
(c) The directors of the corporation shall be divided into three classes,
Class I, Class II and Class III, as nearly equal in number as the then total
number of directors constituting the entire board permits with the term of
office of one class expiring each year. At the annual meeting of stockholders in
1993, directors of Class I shall be elected to hold office for a term expiring
at the 1994 annual meeting, directors of Class II shall be elected to hold
office for a term expiring at the 1995 annual meeting and directors of Class III
shall be elected to hold office for a term expiring at the 1996 annual meeting.
Any vacancies in the board of directors for any reason, and any directorships
resulting from any increase in the number of directors, may be filled by the
board of directors, acting by a majority of the directors then in office,
although less than a quorum, and any directors so chosen shall hold office until
the next election of the class for which such directors shall have been chosen
and until their successors shall be elected and qualified. If the number of
directors is changed, any increase or decrease in the number of directors shall
be apportioned among the classes so as to maintain all classes as equal in
number as possible. At each annual meeting of stockholders, the successors to
the class of directors whose term shall then expire shall be elected to hold
office for a term expiring at the third succeeding annual meeting.
(d) Notwithstanding any other provisions of the certificate of
incorporation of the corporation or these bylaws (and notwithstanding the fact
that some lesser percentage may be specified by law, the certificate of
incorporation or these bylaws of the corporation), any director or the entire
board of directors of the corporation may be removed at any time, but only for
cause and only by the affirmative vote of the holders of not less than 75% of
the outstanding shares of stock of the corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast at an
annual meeting of stockholders or at a meeting of the stockholders called for
that purpose.
Section 3.3 ELECTION AND VACANCIES. Each class of directors to be elected
shall be elected at the annual meeting of the stockholders of the corporation
and shall hold office until their successors are elected and qualified- or until
their earlier death, resignation or removal. Any director may resign at any time
upon written notice to the corporation. Thereafter, directors who are elected at
an annual meeting of stockholders, and directors who are elected in the interim
to fill vacancies and newly created directorships, shall hold office until the
next annual meeting of stockholders at which directors of such class are to be
elected and until their successors are elected and qualified or until their
earlier death, resignation or removal. In the interim between annual meetings of
stockholders or of special meetings of stockholders called for the election of
directors and/or for the removal of one or more directors and for the filling of
any vacancy in that connection, newly created directorships and any vacancies in
the board of directors, including vacancies resulting from the removal of
directors, may be filled by the vote of a majority of the remaining directors
then in office, although less than a quorum, or by the sole remaining director.
Section 3.4 REGULAR MEETINGS. A regular meeting of the board of directors
shall be held without other notice than this bylaw, immediately after, and at
the same place as, the annual meeting of stockholders. The board of directors
may provide, by resolution, the time and place, either within or without the
State of Delaware, for the holding of additional regular meetings without other
notice than such resolution.
Section 3.5 SPECIAL MEETINGS. Special meetings of the board of directors
may be called by or at the request of the president or any director. The person
or persons calling such special meeting of the board of directors shall fix a
place, either within or without the State of Delaware, as the place for holding
any special meeting of the board of directors.
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Section 3.6 NOTICE. Notice of any special meeting of the board of directors
stating the time and place of such meeting shall be given by delivery of notice
not less than forty eight hours prior to the time of such proposed meeting by:
(a) written notice delivered personally or by mail, recognized overnight
delivery service, telegraph or telecopy to each director at his or her business
or residence address or telecopy number or at any other address or telecopy
number provided by a director to the corporation; or (b) oral notice given in
person or provided to such director by telephone wherever he or she may be
located. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail, on a business day before 5:00 p.m. local time, so
addressed, with postage thereon prepaid. If notice is given by overnight
delivery service, such notice will be deemed delivered on the next business day
after the date of delivery to a nationally recognized overnight delivery
service. If notice is given by telegram, such notice shall be deemed to be
delivered when the telegram is delivered to the telegraph company. If notice is
given by telecopy, such notice shall be deemed to be delivered when sent to the
telecopy number provided to the corporation by any director and receipt is
confirmed by telephone with such director, or any adult family member, employee
or agent of such director. Written notice delivered personally and oral notice
given in person or by telephone shall be deemed delivered when so delivered or
given to such director. Notice need not be given to any director who submits a
written waiver of notice signed by him or her either before or after any
meeting. The attendance of a director at any meeting shall constitute a waiver
of notice of such meeting, except where a director attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the board of directors need be specified in the
notice or waiver of such meeting.
Section 3.7 QUORUM. A majority of the number of directors fixed by or
determined in accordance with these bylaws shall constitute a quorum for the
transaction of business at any meeting of the board of directors, provided,
however, that if less than a majority of such number of directors are present at
said meeting, a majority of the directors present may adjourn the meeting from
time to time without further notice. A majority of the number of directors
serving on a committee of the board shall constitute a quorum for the
transaction of business at any meeting of the committee. Interested directors
may be counted in determining the presence of a quorum at a meeting of the board
of directors or of any committee thereof.
Section 3.8 MANNER OF ACTING. The vote of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors or of a committee of the board, as the case may be.
Section 3.9 ACTION WITHOUT A MEETING. Any action required or permitted to
be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting if all the members of the board or committee, as
the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the board or committee.
Section 3.10 COMPENSATION. The board of directors shall have authority to
establish reasonable compensation of all directors for services to the
corporation as directors, officers or otherwise.
Section 3.11 LIABILITY FOR UNLAWFUL PAYMENT OF DIVIDEND. In case of any
willful or negligent violation of the provisions of sections 160 or 173 of the
Delaware General Corporation Law regarding the payment of dividends, any
director who may have been absent when the same was done, or who may have
dissented from the act or resolution by which the same was done, may exonerate
himself or herself from such liability by causing his or her dissent to be
entered on the books containing the minutes of the proceedings of the directors
at the time the same was done, or immediately after he or she has notice of the
same.
Section 3.12 TELEPHONE MEETINGS. Members of the board of directors, or of
any committee thereof, may participate in a meeting of the board or committee,
as the case may be, by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation shall constitute presence in person at the
meeting.
Section 3.13 COMMITTEES. The board of directors may, by resolution passed
by a majority of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. Any
such committee, to the extent provided in the resolution of the board of
directors, shall have and may exercise all the powers and authority of the board
of directors in the management of the business and affairs of the corporation,
to the extent permitted under the Delaware General Corporation Law.
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ARTICLE IV
OFFICERS
Section 4.1 NUMBER. The officers of the corporation shall be a chairman of
the board, a president, a secretary and a treasurer, each of whom shall be
elected by the board of directors. Such other officers, including one or more
vice presidents, assistant officers and acting officers as may be deemed
necessary may be elected or appointed by the board of directors. Any two or more
offices may be held by the same person.
Section 4.2 ELECTION AND TERM OF OFFICE. The officers of the corporation to
be elected by the board of directors shall be elected annually by the board of
directors at the first meeting of the board of directors held after each annual
meeting of the stockholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as conveniently may
be. Vacancies may be filled or new offices created and filled at any meeting of
the board of directors. Each officer shall hold office until his or her
successor shall have been duly elected and qualified or until his or her death
or until he or she shall resign or shall have been removed in the manner
hereinafter provided. Election or appointment of an officer or agent shall not
of itself create contract rights.
Section 4.3 REMOVAL. Any officer or agent elected or appointed by the board
of directors may be removed by the board of directors whenever in its judgment
the best interests of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
Section 4.4 VACANCIES. A vacancy in any office because of death, removal,
resignation or otherwise, may be filled by the board of directors.
Section 4.5 THE CHAIRMAN OF THE BOARD. The chairman of the board shall
preside at all meetings of the stockholders and of the board of directors and
exercise such other powers and perform such duties as the board of directors
shall lawfully authorize.
Section 4.6 THE PRESIDENT. The president shall be the chief executive
officer of the corporation and, subject only to the board of directors, shall
have general authority over, and general management and control of, the
property, business and affairs of the corporation. In the absence of the
chairman of the board, the president shall preside at all meetings of the
stockholders and of the board of directors. The president shall have authority
to vote all shares of stock of any other corporation standing in the name of the
corporation, at any meeting of the stockholders of such other corporation or by
written consent of the stockholders of such other corporation, and may, on
behalf of the corporation, waive any notice of the calling of any such meeting,
and may give a written proxy in the name of the corporation to vote any or all
shares of stock of such other corporation owned by the corporation at any such
meeting. The president shall perform such other duties as may be prescribed by
the board of directors from time to time.
Section 4.7 THE VICE PRESIDENTS. Each of the vice presidents, if any, shall
report to the president or such other officer as may be determined by the board
of directors. Each vice president shall have such duties and responsibilities as
from time to time may be assigned to him or her by the president or the board of
directors.
Section 4.8 THE TREASURER. The treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the corporation, receive
and give receipts for moneys due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of Article V of these bylaws; (b) in general, perform all
the duties incident to the office of the treasurer and such other duties as may
from time to time be assigned to him or her by the president or the board of
directors. In the absence of the treasurer, or in the event of his or her
incapacity or refusal to act, or at the direction of the treasurer, any
assistant treasurer may perform the duties of the treasurer.
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Section 4.9 THE SECRETARY. The secretary shall: (a) record all the
proceedings of the meetings of the stockholders and board of directors in one or
more books kept for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these bylaws or as required by law; (c) be
custodian of the corporate records and of the seal of the corporation and see
that the seal of the corporation is affixed to all certificates for shares of
stock prior to the issuance thereof and to all documents, the execution of which
on behalf of the corporation under its seal is duly authorized in accordance
with the provisions of these bylaws; (d) keep a register of the post office
address of each stockholder which shall be furnished to the secretary by such
stockholder; (e) have general charge of the stock transfer books of the
corporation; and (f) in general, perform all duties incident to the office of
secretary and such other duties as from time to time may be assigned to him or
her by the president or the board of directors. In the absence of the secretary,
or in the event of his or her incapacity or refusal to act, or at the direction
of the secretary, any assistant secretary may perform the duties of secretary.
ARTICLE V
Written Instruments, Loans,
Checks and Deposits
Section 5.1 WRITTEN INSTRUMENTS. Subject always to the specific directions
of the board of directors, all deeds and mortgages made by the corporation and
all other written contracts and agreements to which the corporation shall be a
party shall be executed in its name by the president or any vice president or
other officer so authorized by the board of directors.
Section 5.2 LOANS. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
Section 5.3 CHECKS AND DRAFTS. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the corporation, shall be signed by such officer or officers, agent or agents of
the corporation and in such manner as shall from time to time be determined by
resolution of the board of directors.
Section 5.4 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 of directors may
select.
ARTICLE VI
Certificates for Shares of
Capital Stock and Their Transfer
Section 6.1 CERTIFICATES FOR SHARES OF CAPITAL STOCK. Certificates
representing shares of stock of the corporation shall be in such form as may be
determined by the board of directors. Such certificates shall be signed by the
president or any vice president and the secretary or an assistant secretary. If
any such certificate is manually countersigned by a transfer agent other than
the corporation or its employee, any other signature on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon such certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the corporation with the same effect as if he or
she were such officer, transfer agent or registrar at the date of issue. All
certificates for shares of stock shall be consecutively numbered or otherwise
identified. The name of the person to whom the shares represented thereby are
issued, with the number of shares and date of issue, shall be entered on the
books of the corporation. All certificates surrendered to the corporation for
transfer shall be cancelled and no new certificates shall be issued until the
former certificate for a like number of shares shall have been surrendered and
cancelled, except that in case of a lost, destroyed or mutilated certificate a
new certificate may be issued therefor upon such terms and indemnity to the
corporation as the board of directors may prescribe.
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Section 6.2 TRANSFER OF SHARES OF STOCK. Transfers of shares of stock of
the corporation shall be made on the books of the corporation by the holder of
record thereof or by his or her legal representative, who shall furnish proper
evidence of authority to transfer, or by his or her attorney thereunto
authorized by power of attorney duly executed and filed with the secretary of
the corporation, and on surrender for cancellation of the certificate for such
shares. 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.
Section 6.3 TRANSFER AGENTS AND REGISTRARS. The board of directors may
appoint one or more transfer agents or assistant transfer agents and one or more
registrars of transfers, and may require all certificates for shares of stock of
the corporation to bear the signature of a transfer agent or assistant transfer
agent and a registrar of transfers. The board of directors may at any time
terminate the appointment of any transfer agent or any assistant transfer agent
or any registrar of transfers.
ARTICLE VII
Indemnification
Section 7.1 DIRECTORS AND OFFICERS. (a) The corporation shall indemnify any
person who was or is a party or is threatened to be made party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that 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 or officer of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding if he
or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that 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 or officer of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection with the defense or settlement
of such action or suit if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation, and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery of the State of Delaware or such other court shall deem proper.
(c) To the extent that any person referred to in paragraphs (a) and (b) of
this Section 7.1 has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to therein or in defense of any claim,
issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith.
(d) Any indemnification under paragraphs (a) and (b) of this Section 7.1
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director
or officer is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in paragraphs (a) and (b) of this
Section 7.1. Such determination shall be made (i) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding or (ii) if such quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by the stockholders.
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(e) Expenses (including attorneys' fees) incurred in defending any civil,
criminal, administrative or investigative action, suit or proceeding may be paid
by the corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the corporation as provided in this Section
7.1. Such expenses (including attorneys' fees) incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the board of
directors deems appropriate.
(f) The indemnification and advancement of expenses provided by or granted
pursuant to this Section 7.1 shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his or her official capacity and as
to action in another capacity while holding such office.
(g) The corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against him
or her and incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not the corporation would have the power to
indemnify-him or her against such liability under the provisions of this Section
7.1.
(h) For purposes of this Section 7.1, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he or she
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this Section
7.1.
(i) The indemnification and advancement of expenses provided by, or granted
pursuant to, this Section 7.1 shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(j) Unless otherwise determined by the board of directors, references in
this section to "the corporation" shall not include in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this section
with respect to the resulting or surviving corporation as he or she would have
with respect to such constituent corporation if its separate existence had
continued.
Section 7.2 EMPLOYEES AND AGENTS. The board of directors may, by
resolution, extend the indemnification provisions of the foregoing Section 7.1
to any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding by reason of the
fact that he or she is or was an employee or agent of the corporation, or is or
was serving at the request of the corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise.
ARTICLE VIII
Fiscal Year
Section 8.1 The fiscal year of the corporation shall end on December 31 of
each year or on such other date as the board of directors may from time to time
determine by resolution.
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ARTICLE IX
Dividends
Section 9.1 The board of directors may from time to time declare, and the
corporation may pay, dividends on its outstanding shares of stock in the manner
and upon the terms and conditions provided by law and its certificate of
incorporation.
ARTICLE X
Seal
Section 10.1 The corporation shall have a corporate seal which shall be in
the form of a circle and shall have inscribed thereon the name of the
corporation and the words "Corporate Seal, Delaware."
ARTICLE XI
Waiver of Notice
Section 11.1 Whenever any notice whatsoever is required to be given under
any provision of these bylaws or of the certificate of incorporation or of the
General Corporation Law of the State of Delaware, a written waiver thereof,
signed by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transactions of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders or directors or
any committee need be specified in any written waiver of notice.
ARTICLE XII
Amendments
Section 12.1 These bylaws may not be altered, amended, changed or repealed
unless such alteration, amendment, change or repeal shall have received: (a) the
affirmative vote of not less than 80% of the number of directors as may be fixed
from time to time, in the manner prescribed in the certificate of incorporation,
by the board of directors of the corporation, or the written consent of all of
such directors; or (b) the affirmative vote of the holders of shares having at
least 75% of the voting power of all outstanding capital stock of the
corporation entitled to vote thereon.
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