NRG GENERATING (U.S.) INC.
RESTATED BY-LAWS
ARTICLE I
MEETINGS OF STOCKHOLDERS
1.1. Annual.
The annual meeting of stockholders for the election of
directors, ratification or rejection of the selection of auditors and
the transaction of such other business as may properly be brought
before the meeting shall be held within five months after the end of
the corporation's fiscal year, or such other time as may be determined
by the board of directors at such time, date and place as the board
shall determine by resolution.
1.2. Special.
Special meetings of stockholders may be called by the board of
directors or the chairman of the board of directors or the Independent
Directors' Committee (as described in Section 3.1(b)), at such place,
date and time and for such purpose or purposes as shall be set forth in
the notice of such meeting.
1.3. Notice of Meetings.
Written notice of each meeting of stockholders shall be given
by the chairman of the board and/or the secretary in compliance with
the provisions of Delaware law.
1.4. List of Stockholders Entitled to Vote.
The secretary shall prepare, 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 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 days prior to the
meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held. The
list shall also be produced and kept at the time and place of the
meeting during the whole time thereof and may be inspected by any
stockholder who is present.
1.5. Quorum.
At each meeting of the stockholders, except where otherwise
provided by law or the certificate of incorporation or these by-laws,
the holders of sixty percent of the voting power of the outstanding
shares of stock entitled to vote at the meeting, present in person or
by proxy, shall constitute a quorum. In the absence of a quorum, the
stockholders so present may, by majority vote, adjourn the meeting from
time to time in the manner provided in Section 1.9 of these by-laws
until a quorum shall attend. 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, directly or indirectly, by the corporation, shall neither be
entitled to vote nor be counted for quorum purposes; provided, however,
that the foregoing shall not limit the right of the corporation to vote
stock, including but not limited to its own stock, held by it in a
fiduciary capacity.
1.6. Organization.
The chairman or, if he so designates or is absent, the chief
executive officer or, in their absence, an executive vice president or
vice president designated by the board of directors, shall preside at
meetings of the stockholders. The secretary of the corporation shall
act as secretary, but in his absence the presiding officer may appoint
a secretary.
1.7. Voting; Proxies.
(a) Each stockholder shall be entitled to vote in accordance
with the number of shares and voting powers of the voting shares held
of record by him. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him by
proxy, but such proxy, whether revocable or irrevocable, shall comply
with the requirements of Delaware law. All elections and questions
shall, unless otherwise provided by law or by the certificate of
incorporation or these by-laws, be decided by the vote of the holders
of a majority of the voting power of the shares of stock entitled to
vote thereon present in person or by proxy at the meeting.
(b) Any action required to be taken at any annual or special
meeting of stockholders of the corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may be
taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding shares of stock having no
less than the greater of: (i) the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted and (ii) 75% of
2
the voting power of the shares of stock entitled to vote thereon.
Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
1.8 Fixing Date for Determination of Stockholders of Record.
In order that the corporation may determine the stockholders
entitled: (a) to notice of or to vote at any meeting of stockholders or
any adjournment thereof; (b) to express consent to corporate action in
writing without a meeting; (c) to receive payment of any dividend or
other distribution or allotment of any rights; or (d) 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. The 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: (a) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or
adjournment thereof, shall not be more than sixty nor less than ten
days before the date of such meeting; (b) in the case of determination
of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than ten days from the
date upon which the resolution fixing the record date is adopted by the
board of directors; and (c) in the case of any other action, shall not
be more than sixty days prior to such other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the
adjourned meeting.
1.9. Adjournments.
Any meeting of stockholders, annual or special, may adjourn
from time to time to reconvene at the same or other place, and notice
need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken.
At the adjourned meeting the corporation may transact any business
which might have been transacted at the original meeting. If the
adjournment is for more than thirty days, or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting.
1.10. Judges.
All votes by ballot at any meeting of stockholders shall be
conducted by two judges appointed for the purpose, either by the
directors or by the chairman of the meeting. The judges
3
shall decide upon the qualifications of voters, count the votes and
declare the result.
1.11. Notice of Stockholder Nomination and Stockholder Business.
(a) At a meeting of the stockholders, only such business shall
be conducted as shall have been properly brought before the meeting.
(b) A notice of the intent of a stockholder to make a
nomination or to bring any other matter before the meeting shall be
made in writing and received by the secretary of the corporation not
more than 180 days and not less than 120 days in advance of the annual
meeting or, in the event of a special meeting of stockholders, such
notice shall be received by the secretary of the corporation not later
than the close of the fifteenth day following the day on which notice
of the meeting is first mailed to stockholders.
(c) Every such notice by a stockholder shall set forth:
(i) the name and residence address of the stockholder
of the corporation who intends to make a nomination or bring up
any other matter;
(ii) a representation that the stockholder is a holder
of the corporation's voting stock and intends to appear in person
or by proxy at the meeting to make the nomination or bring up the
matter specified in the notice;
(iii) with respect to notice of an intent to make a
nomination, a description of all arrangements or understandings
among the stockholder and each nominee and any other person or
persons (naming such person or person) pursuant to which the
nomination or nominations are to be made by the stockholder;
(iv) with respect to notice of an intent to make a
nomination, such other information regarding each nominee
proposed by such stockholder as would have been required to be
included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission had each nominee been
nominated by the board of directors of the corporation; and
(v) with respect to notice of an intent to bring up any
other matter, a description of the matter, and any material
interest of the stockholder in the matter.
(d) Notice of intent to make a nomination shall be accompanied
by the written consent of each nominee to serve as director of the
corporation if so elected.
4
(e) At the meeting of stockholders, the chairman shall declare
out of order and disregard any nomination or any other matter not
presented in accordance with this section.
ARTICLE II
BOARD OF DIRECTORS
2.1. Responsibility and Number.
(a) The business and affairs of the corporation shall be
managed by or under the direction of a board of directors.
(b) The number of directors shall be eight(1); provided that
such number of directors may be increased to eight if necessary or
required by the terms of any series of preferred stock that may be
issued from time to time pursuant to a resolution of the board of
directors in accordance with Article FOURTH of the corporation's
certificate of incorporation.
2.2. Election; Resignation; Vacancies.
(a) At each annual meeting of stockholders, the stockholders
shall elect directors, each of whom shall hold office for a term
commencing on the date of the annual meeting of stockholders, or such
later date as shall be determined by the board of directors, and ending
on the next annual meeting of stockholders, or until his or her
successor is elected and qualified. Any director may resign at any
time upon written notice to the chairman of the board or to the
secretary.
(b) Except as otherwise provided in these by-laws with respect
to Independent Directors (as defined in Section 2.10(c)), the nominees
of the board of directors for the election of whom the board will
solicit proxies from the stockholders for use at the corporation's
annual meeting shall be determined by resolution of the board of
directors.
(c) Except as otherwise provided in these by-laws with respect
to Independent Directors, any vacancy occurring in the board of
directors for any reason may be filled by a majority of the remaining
members of the board of directors, although such majority is less than
a quorum. Each director so elected shall hold office concurrent with
the term of other directors or until his successor is elected and
qualified.
(1) The number was increased from seven to eight on March 27, 1997.
5
2.3 Regular Meetings.
Unless otherwise determined by resolution of the board of
directors, a meeting of the board of directors for the election of
officers and the transaction of such other business as may come before
it shall be held at such time and places as the board shall from time
to time determine.
2.4 Special Meetings.
Special meetings of the board of directors may be called by the
chairman of the board of directors, the chief executive officer, the
president or a vice chairman, or at the request in writing of a
majority of the directors then in office or of a majority of the
members of the Independent Directors Committee, and shall be called by
the secretary. Notice of a special meeting of the board of directors
shall be given at least twenty-four hours before the special meeting.
2.5 Quorum; Vote Required for Action.
(a) At all meetings of the board of directors, a majority of
the whole board shall constitute a quorum for the transaction of
business. Except in cases in which applicable law, the certificate of
incorporation or these by-laws otherwise provide, 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.
(b) Except as otherwise specifically provided in the
certificate of incorporation or these by-laws; the affirmative vote of
a majority of the entire Board of Directors shall be required to: (i)
amend the certificate of incorporation or these by-laws; (ii) adopt a
plan of liquidation or dissolution of the corporation; (iii) approve
any merger, consolidation or other business combination of the
corporation or any of its subsidiaries with any person (other than a
wholly-owned subsidiary of the corporation); and (iv) appoint members
of board committees in accordance with Section 3.1(b) of these by-laws.
2.6. Organization.
(a) At its last meeting before, or first meeting after, the
annual meeting of stockholders, the board of directors shall elect one
of its members to be chairman of the board. The chairman of the board
may, but need not be, an officer of or employed in an executive or any
other capacity by the corporation.
(b) The chairman of the board of directors shall preside at
meetings of the board of directors and lead the board in fulfilling its
responsibilities as defined in section 2.1 and, in particular, its
responsibilities to oversee the performance of the corporation and of
the executive management of the corporation.
6
(c) The chairman of the board of directors, or in his absence,
the chief executive officer, the president or a vice chairman (in the
order stated), or in their absence a member of the board selected by
the members present, shall preside at meetings of the board. The
secretary of the corporation shall act as secretary, but in his absence
the presiding officer may appoint a secretary.
2.7. Transactions with Corporation.
(a) No contract or transaction between the corporation and one
or more of its directors, or between the corporation and any other
corporation, partnership, association, or other organization in which
one or more of its directors or officers are directors or officers, or
have a financial interest, shall be void or voidable for this reason,
or solely because the director or officer is present at or participates
in the meeting of the board or committee thereof which authorizes the
contract or transaction, or solely because his or their votes are
counted for such purpose: (1) if the material facts as to his
relationship or interest and as to the contract or transaction are
disclosed or are known to the board of directors or the committee, and
the board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a
quorum; or (2) if the material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction
is specifically approved in good faith by vote of the stockholders; or
(3) if the contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the board of
directors, a committee thereof, or the stockholders.
(b) Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of
directors or of a committee which authorizes the contract or
transaction.
(c) Any material transaction between the corporation or any of
its subsidiaries on the one hand and NRG Energy, Inc., Northern States
Power Company (Minnesota) (or any wholly owned subsidiary of either) on
the other hand shall require approval by a majority of the Independent
Directors of the corporation, as hereinafter defined.
2.8. Informal Action by Directors.
Unless otherwise restricted by the certificate of incorporation
or these by-laws, any action required or permitted to be taken at any
meeting of the board of directors, or of any
7
committee thereof, may be taken without a meeting if all members of the
board or such 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.
2.9. Telephonic Meetings Permitted.
Members of the board of directors, or any committee designated
by the board, may participate in a meeting of such board or committee
by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each
other, and participation in a meeting pursuant to this by-law shall
constitute presence in person at such meeting.
2.10. Independent Directors.
(a) No fewer than two of the individuals to constitute the
nominees of the board of directors for the election of whom the board
will solicit proxies from the stockholders for use at the corporation's
annual meeting shall consist of individuals who, on the date of their
selection as nominees of the board of directors, would be Independent
Directors.
(b) In the event the board of directors elects directors
between annual meetings of stockholders, the number of such directors
who qualify as Independent Directors on the date of their nomination
shall be such that no less than two of all directors holding office
immediately thereafter shall have been Independent Directors on the
date of the first of their nomination or selection as nominees of the
board of directors.
(c) For purposes of this by-law, the term "Independent
Director" shall mean a director who: (i) is not and has not been
employed by the corporation or its subsidiaries in an executive
capacity within the five years immediately prior to the annual meeting
at which the nominees of the board of directors will be voted upon;
(ii) is not (and is not affiliated with a company or a firm that is) a
significant advisor or consultant to the corporation or its
subsidiaries; (iii) is not affiliated with a significant customer or
supplier of the corporation or its subsidiaries; (iv) does not have
significant personal services contract(s) with the corporation or its
subsidiaries; (v) is not affiliated with a tax-exempt entity that
receives significant contributions from the corporation or its
subsidiaries; (vi) is not an affiliate (as defined in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of
1934), of any beneficial owner directly or indirectly, of 5% or more of
the voting power of the outstanding voting stock of the corporation;
and (vii) is not a spouse, parent, sibling or child of any person
described by (i) through (vi).
8
ARTICLE III
COMMITTEES
3.1. Committees of the Board of Directors.
(a) The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees,
consisting of one or more of the directors of the corporation, to be
committees of the board of directors ("committees of the board"). All
committees of the board may authorize the seal of the corporation to be
affixed to any papers which may require it. To the extent provided in
any resolution of the board of directors or these by-laws, and to the
extent permissible under the laws of the State of Delaware and the
certificate of incorporation, any such committee 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.
(b) The board shall have three standing committees: an Audit
Committee, a Compensation Committee and an Independent Directors
Committee. Subject to the provisions of Sections 3.2 through 3.4
below, each standing committee shall have such number of members as
determined by resolution of the directors and each of such members
shall be appointed by a majority of the whole board.
3.2. Independent Directors Committee.
(a) The Independent Directors Committee shall have three
members, two of whom shall be Independent Directors. The Independent
Directors Committee shall review the qualifications of individuals for
consideration as one of the three members of the Independent Directors
Committee. Prior to the annual meeting of the shareholders each year,
the Independent Directors Committee shall nominate those individuals to
serve on the board and constitute the three members of the Independent
Directors Committee for the election of whom the board will solicit
proxies. The Independent Directors Committee shall also designate the
individuals to fill any vacancies on the board that are to be filled by
a member of the Independent Directors Committee and that arise between
annual meetings of shareholders. The Independent Directors Committee
shall have sole authority and responsibility to make all decisions and
take all actions on behalf of the corporation under both the Co-
Investment Agreement dated as of April 30, 1996 between NRG Energy,
Inc., a Delaware corporation ("NRG") and the corporation and the
Management Services Agreement dated as of April 30, 1996 between NRG
and the corporation, including without limitation decisions regarding
the amendment or modification of such agreements. The Independent
Directors Committee shall have and may exercise such other powers,
authority and responsibilities as provided in these by-
9
laws or as may be determined by the board of directors.
(b) Independent Directors Committee members shall have the
right to request and receive such information, reports and/or backup
data from employees of the corporation or the corporation's auditors,
as the case may be, as they deem necessary to assist them in the
conduct of their duties, and such committee shall have the right,
without limitation, to retain such advisors and consultants, including
attorneys, accountants, engineers or other experts, as it deems
necessary or appropriate to assist the members in carrying out the
committee's responsibilities.
3.3. Audit Committee.
The board of directors shall select the members of the Audit
Committee, the majority of whom shall be Independent Directors, and
shall designate the chairman of the committee. No officer of the
corporation shall be a member of the Audit Committee. The members of
the Audit Committee shall not be eligible to participate in any
incentive compensation plan for employees of the corporation or any of
its subsidiaries. The selection by the committee of accountants for
the ensuing calendar year shall be made annually in advance of the
annual meeting of stockholders and shall be submitted to the
stockholders for ratification or rejection at such meeting. The Audit
Committee shall have and may exercise such powers, authority and
responsibilities as are normally incident to the functions of an Audit
Committee or as may be determined by the board of directors.
3.4. Compensation Committee.
(a) The board of directors shall select the members of the
executive Compensation Committee and shall designate the chairman of
the committee. No officer of the corporation shall be a member of the
committee. No member of the committee shall be eligible to participate
in any plan falling within the jurisdiction of the committee. The
committee shall have and may exercise the powers and authority granted
to it by any incentive compensation plan for employees of the
corporation or any of its subsidiaries, and such other powers,
authority and responsibilities as may be determined by the board of
directors.
(b) The committee shall determine the compensation of:
(a) employees of the corporation who are directors of the corporation;
and (b) after receiving and considering the recommendation of the chief
executive officer and the president of the corporation, all other
employees of the corporation who are officers of the corporation or who
occupy such other positions as may be designated by the committee.
10
ARTICLE IV
OFFICERS
4.1. Elected officers.
The officers of the corporation shall be elected by the board
of directors. There shall be a chief executive officer, a president,
one or more vice presidents, a secretary, a treasurer and a
comptroller. The chief executive officer and the president shall have
the powers, authority and responsibilities provided by these by-laws.
The officers, other than the chief executive officer and the president,
shall each have, in addition to the powers, authority and
responsibilities of those officers otherwise provided by the by-laws,
such powers, authority and responsibilities as the board of directors
or the chief executive officer may determine. The board of directors
may also elect persons to hold such other offices as the board of
directors shall determine, including one or more vice chairmen of the
board. A person may hold any number of offices. Elected officers
shall hold their offices at the pleasure of the board of directors, or
until their earlier resignation.
4.2 Chief Executive Officer.
(a) The chief executive officer shall have the general
executive responsibility for the conduct of the business and affairs of
the corporation. If the chairman so designates or is absent, the chief
executive officer shall preside at meetings of the stockholders. He
shall exercise such other powers, authority and responsibilities as the
board of directors may determine.
(b) In the absence of or during the physical disability of the
chief executive officer, the board of directors shall designate an
officer who shall have and exercise the powers, authority and
responsibilities of the chief executive officer.
4.3 President.
The president shall have and exercise such powers, authority
and responsibilities as the board of directors may determine.
4.4. Treasurer.
The treasurer shall have custody of all funds and securities of
the corporation and shall perform all acts incident to the position of
treasurer. He shall render such accounts and reports as may be
required by the board of directors. The records, books and accounts of
the office of the treasurer shall, during the usual hours for business
at the office of the treasurer, be open to the examination of any
director.
11
4.5 Secretary.
The secretary shall keep the minutes of all meetings of
stockholders and directors and of such committees of the board of
directors as to which he may be so directed. He shall give all
required notices and shall have charge of such books and papers as the
board of directors may require. He shall submit such reports to the
board of directors or to any of the committees of the board or
committees of the corporation as the board of directors or any such
committee may require. Any action or duty required to be performed by
the secretary may be performed by an assistant secretary.
4.6. Comptroller.
The comptroller shall be in charge of the accounts of the
corporation and shall perform all acts incident to the position of
comptroller. He shall submit such reports and records to the board of
directors or to any of the committees of the board or committees of the
corporation as the board of directors or any such committee may
require.
4.7. Subordinate officers.
(a) The board of directors may from time to time appoint one
or more assistant secretaries, assistant treasurers, assistant
comptrollers, and such other subordinate officers as the board of
directors may deem advisable. Such subordinate officers shall have
such powers, authority and responsibilities as the board of directors
may from time to time determine. The board of directors may grant to
any committee of the board or the chief executive officer the power and
authority to appoint subordinate officers and to prescribe their
respective terms of office, powers, authority and responsibilities.
Each subordinate officer shall hold his position at the pleasure of the
board of directors, the committee of the board appointing him, the
chief executive officer and any other officer to whom such subordinate
officer reports.
(b) In the interval between annual organizational meetings of
the board of directors, the chief executive officer shall have the
power and authority to appoint such subordinate officers. Such
subordinate officers shall serve until the first meeting of the board
of directors immediately following the annual meeting of stockholders.
4.8. Resignation, Removal, Suspension and Vacancies.
(a) Any officer may resign at any time by giving written
notice to the chief executive officer, the president or the secretary.
Unless stated in the notice of resignation, the
12
acceptance thereof shall not be necessary to make it effective. It
shall take effect at the time specified therein or, in the absence of
such specification, it shall take effect upon the receipt thereof.
(b) Any officer elected by the board of directors may be
suspended or removed at any time by the affirmative vote of a majority
of the whole board. Any subordinate officer of the corporation
appointed by the board of directors or a committee of the board, or the
chief executive officer, may be suspended or removed at any time by a
majority vote of a quorum of the board of directors or committee
appointing such subordinate officer, or by the chief executive officer
or any other officer to whom such subordinate officer reports.
(c) The chief executive officer may suspend the powers,
authority, responsibilities and compensation of any elected officer or
appointed subordinate officer for a period of time sufficient to permit
the board or the appropriate committee of the board a reasonable
opportunity to consider and act upon a resolution relating to the
reinstatement, further suspension or removal of such person.
(d) As appropriate, the board of directors, a committee of the
board, and/or the chief executive officer may fill any vacancy created
by the resignation of any officer.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
5.1. Execution of Contracts.
The board, except as in these by-laws otherwise provided, may
authorize any officer or officers, agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
corporation, and such authority may be general or confined to specific
instances.
5.2. Checks, Drafts, Etc.
All checks, drafts or other orders for payment of money, notes
or other evidence of indebtedness, issued in the name of or payable to
the corporation, shall be signed or endorsed by such person or persons
and in such manner as, from time to time, shall be determined by
resolution of the board. Each such officer, assistant, agent or
attorney shall give such bond, if any, as the board may require.
13
5.3. 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.
5.4. 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 by-laws, as it may deem
expedient.
ARTICLE VI
SHARES AND THEIR TRANSFER
6.1. Certificates for Stock.
Except as otherwise provided in the corporation's certificate
of incorporation or by-laws, 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 President or a Vice President, and by the Secretary
or an Assistant Secretary or by 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
14
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 6.4.
6.2. 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 6.3, and upon surrender
of the certificate or certificates for such shares properly endorsed
and the payment of all taxes thereon. Except as otherwise provided in
the corporation's certificate of incorporation or these by-laws, 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.
6.3. Regulations.
The board may make such rules and regulations as it may deem
expedient, not inconsistent with these by-laws, 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.
6.4. 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,
15
that a new certificate may be issued without requiring any bond when,
in the judgment of the board, it is proper so to do.
ARTICLE VII
MISCELLANEOUS
7.1. Fiscal Year.
The fiscal year of the Corporation shall be determined by
resolution of the board.
7.2. Waiver of Notices.
Whenever notice is required to be given by these by-laws or the
certificate of incorporation, 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.
ARTICLE VIII
INDEMNIFICATION (2)
8.1. Directors and Officers.
(a) Any person who was or is a party or is threatened to be
made a party to or was or is involved (as a witness or otherwise) in
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than
any action or suit by or in the right of the Corporation to procure a
judgment in its favor (a "derivative action")) 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, partnership, joint
venture, trust or other enterprise, including service with respect to
employee benefit plans, shall be indemnified by the Corporation, to the
extent authorized by the laws of the State of Delaware as the same
exist 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 such laws
permitted prior to such amendment), against all expenses (including,
but not limited to, attorneys' fees) judgments, fines, penalties and
amounts paid in settlement actually and reasonably incurred by him or
her in connection with the defense or settlement of such action, suit
or proceeding. In the event of any derivative action, such persons
shall be indemnified by the Corporation under the same conditions and
to the same extent as specified above, except that no
(2) This Article was added on October 28, 1997.
16
indemnification is permitted 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 or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper. The indemnification expressly
provided by statute in a specific case shall not be deemed exclusive of
any other rights to which any person indemnified may be entitled under
any lawful 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, and shall
continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and administrators
of such a person.
(b) The right to indemnification conferred in this Article
VIII is and shall be a contract right. The right to indemnification
conferred in this Article VIII shall include the right to be paid by
the Corporation the expenses (including attorneys' fees and retainers
therefor) reasonably incurred in connection with any such proceeding in
advance of its final disposition, such advances to be paid by the
Corporation within thirty (30) days after the receipt by the
Corporation of a statement or statements from a director or officer of
the Corporation requesting such advance or advances from time to time;
provided, however, the payment of such expenses incurred by a director
or officer in his or her capacity as a director or officer in advance
of the final disposition of a proceeding shall be made only upon
delivery to the Corporation of an undertaking by or on behalf of such
director or officer to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled
to be indemnified under this Article VIII or otherwise.
(c) To obtain indemnification under this Article VIII, an
indemnitee shall submit to the Corporation a written request, including
therein or therewith such documentation and information as is
reasonably available to such person and is reasonably necessary to
determine whether and to what extent the indemnitee is entitled to
indemnification.
(d) The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Corporation or any director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
including service with respect to employee benefit plans, 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 General
17
Corporation Law of the State of Delaware. To the extent that the
Corporation maintains any policy or policies providing such insurance,
each director and officer, and each employee and agent to whom rights
of indemnification have been granted as provided in paragraph (e) of
this Article VIII, shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the
coverage thereunder for any such director, officer, employee or agent.
(e) The Corporation may, to the extent authorized from time
to time by the Board of Directors, grant rights to indemnification, and
rights to be paid by the Corporation the expenses incurred in
connection with any proceeding in advance of its final disposition, to
any employee or agent of the Corporation to the fullest extent of the
provisions of this Article VIII with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation."
IN WITNESS WHEROF, the undersigned has hereunto set her hand on the
28th day of October, 1997.
/s/ Karen A. Brennan
By: Karen A. Brennan
Title: Secretary
18