EXHIBIT 3.2
BYLAWS
OF
ROBERTSON-CECO CORPORATION
Effective November 8, 1990 and
As Amended on November 12, 1991,
August 27, 1992 and December 16, 1993
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BYLAWS
OF
ROBERTSON-CECO CORPORATION
TABLE OF CONTENTS
Page
ARTICLE I OFFICES 1
Section 1.1. Registered Office and Agent 1
Section 1.2. Principal Office 1
Section 1.3. Other Offices 1
ARTICLE II MEETINGS OF STOCKHOLDERS 1
Section 2.1. Place of Meetings 1
Section 2.2. Annual Meetings 1
Section 2.3. Special Meetings 1
Section 2.4. Notice of Meetings 2
Section 2.5. Record Date 2
Section 2.6. Organization 2
Section 2.7. Quorum 2
Section 2.8. Action by Stockholders; Voting 3
ARTICLE III DIRECTORS 3
Section 3.1. Powers of Directors and Compensation 3
Section 3.2. Number and Term of Office 3
Section 3.3. Vacancies 3
Section 3.4. Meetings of Directors 4
Section 3.5. Informal Action 4
Section 3.6. Telephone Participation in Meetings 4
Section 3.7. Standing Committees 4
Section 3.8. Other Committees 4
Section 3.9. Committee Procedure 5
Section 3.10. Committee Meetings 5
Section 3.11. Committee Records and Reports 5
Section 3.12. Term of Committees 5
ARTICLE IV OFFICERS 5
Section 4.1. Executive Officers 5
Section 4.2. The Chairman 5
Section 4.3. The Vice Chairman 5
Section 4.4 The Chief Executive Officer 6
Section 4.5. The President 6
Section 4.6. Vice Presidents 6
Section 4.7. The Secretary and Assistant Secretaries 6
Section 4.8. The Treasurer and Assistant Treasurers 6
Section 4.9. The Controller and Assistant Controllers 7
Section 4.10. General Counsel and Assistant General Counsel 7
Section 4.11. Additional and Assistant Officers, Agents and
Employees 7
Section 4.12. Vacancies 7
Section 4.13. Employment Contracts 8
Section 4.14. Term and Compensation 8
ARTICLE V INDEMNIFICATION 8
Section 5.1. Directors and Officers 8
Section 5.2. Payment of Expenses 8
Section 5.3. Permissive Indemnification and Advancement of
Expenses 8
Section 5.4. Basis of Rights; Other Rights 9
Section 5.5. Determination of Indemnification 9
Section 5.6. Insurance 9
Section 5.7. Powers of the Board 10
Section 5.8. Definition - Corporation 10
Section 5.9. Definition - Authorized Representative 10
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ARTICLE VI SHARES OF CAPITAL STOCK 10
Section 6.1. Share Certificates 10
Section 6.2. Transfer of Stock 11
Section 6.3. Transfer Agents and Registrars 11
Section 6.4. Lost, Stolen, Destroyed, or Mutilated Certificates 11
Section 6.5. Regulations 11
Section 6.6. Holders of Record 11
Section 6.7. Treasury Shares 11
Section 6.8. Fixing of Record Date 11
ARTICLE VII LOAN, NOTES, CHECKS, CONTRACTS AND OTHER
INSTRUMENTS 12
Section 7.1. Loans 12
Section 7.2. Notes, Checks, Etc. 12
Section 7.3. Execution of Instruments Generally 12
ARTICLE VIII GENERAL PROVISIONS 12
Section 8.1. Corporate Seal 12
Section 8.2. Fiscal Year 12
Section 8.3. Authorization 12
Section 8.4. Reports to Stockholders 13
Section 8.5. Effect of Bylaws 13
Section 8.6. Notices to Stockholders and Waivers of Notices 13
Section 8.7. Interested Directors; Quorum 13
ARTICLE IX AMENDMENTS 14
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BYLAWS
OF
ROBERTSON-CECO CORPORATION
ARTICLE I
OFFICES
Section 1.1. Registered Office and Agent. The name of the
Corporation's registered agent and the address of its registered office in the
State of Delaware are as follows:
The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
Section 1.2. Principal Office. The address of the principal office
of the Corporation is as follows:
222 Berkeley Street
Boston, Massachusetts 02116
Section 1.3. Other Offices. The Corporation may also have an office
or offices at such other place or places, within or without the State of
Delaware, as the Board of Directors may from time to time designate or the
business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1. Place of Meetings. Meetings of the stockholders shall
be held at such place within or without the State of Delaware as shall be
designated by the Board of Directors or the person or persons calling the
meeting.
Section 2.2. Annual Meetings. The annual meeting of the stockholders
for the election of directors and the transaction of such other business as may
properly come before the meeting shall be held on the first Tuesday after May 1
of each calendar year or after the close of such other date and at such time as
shall be designated by the Board of Directors.
Section 2.3. Special Meetings. Special meetings of the stockholders
may be called at any time by the Chairman or the Board of Directors, and shall
be called by the Chairman, President or Secretary at the request in writing of
stockholders owning at least twenty percent (20%) of the issued and outstanding
shares of stock of the Corporation entitled to vote.
Section 2.4. Notice of Meetings. A written notice stating the place,
date, and hour of each meeting of stockholders and, in the case of a special
meeting, the purpose or purposes for which the meeting is called shall be given
by, or at the direction of, the Secretary or the person or persons authorized to
call the meeting to each stockholder of record entitled to vote at such meeting,
not less than ten (10) days nor more than sixty (60) days before the date of the
meeting, unless a greater period of time is required by law in a particular
case.
Section 2.5. Record Date. In order to determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without
a meeting, the Board of Directors may fix, in advance, a record date, which
shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action. If no record
date is fixed: (i) the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
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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; and (ii) the record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is expressed. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
Section 2.6. Organization. Meetings of the stockholders shall be
presided over by the Chairman, or if he is not present, by the President, or if
neither the Chairman nor the President is present, by a chairman to be chosen by
a majority of stockholders entitled to vote who are present in person or by
proxy
at the meeting. The Secretary of the Corporation, or in his or her absence, an
Assistant Secretary, shall act as secretary of every meeting of the stockholders
but, if neither the Secretary nor an Assistant Secretary is present, the
stockholders shall choose any person present at the meeting to act as secretary
of the meeting.
Section 2.7. Quorum. A stockholders' meeting duly called shall not
be organized for the transaction of business unless a quorum in present. A
majority of the outstanding shares entitled to vote, present in person or
represented by proxy, shall constitute a quorum. Once a quorum has been
established, the stockholders present in person or represented by proxy at a
duly
organized meeting can continue to do business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum. If any
meeting of stockholders cannot be organized because of lack of quorum, those
present in person or by proxy shall have the power, except as otherwise provided
by statute, to adjourn the meeting to such time and place as they may determine,
but in the case of any meeting called for the election of directors, the shares
present in person or represented by proxy at the second of such adjourned
meetings, consisting of at least one-third (1/3) of the outstanding shares
entitled to vote, shall nevertheless constitute a quorum for the purpose of
electing directors.
Section 2.8. Action by Stockholders; Voting.
(a) Except as may be otherwise provided by statute, the Certificate of
Incorporation or these Bylaws, (i) each holder of record of the issued and
outstanding common stock of the Corporation entitled to vote shall be entitled,
at every stockholders' meeting, to one vote in person or by proxy for each share
of common stock having voting power standing in the name of such stockholder on
the books of the Corporation, (ii) each holder of record of issued and
outstanding preferred stock of the Corporation entitled to vote shall be
entitled, at every stockholders' meeting, to vote in person or by proxy that
number of votes or a fraction of a vote per share to which the respective series
of preferred stock held by the stockholder is entitled to vote; and (iii) the
affirmative vote of a majority of the voting power present in person or
represented by proxy at a duly organized meeting and entitled to vote on the
subject matter shall be the act of the stockholders.
(b) Voting by the stockholders on any matter may but need not be by
written ballot.
ARTICLE III
DIRECTORS
Section 3.1. Powers of Directors and Compensation. The business and
affairs of the Corporation shall be managed by or under the direction of the
Board of Directors, which shall exercise all powers that may be exercised or
performed by the Corporation and that are not by statute, the Certificate of
Incorporation or these Bylaws directed to be exercised or performed by the
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stockholders. The Board of Directors has the authority to fix the compensation
of Directors.
Section 3.2. Number and Term of Office.
(a) Number. The Board of Directors shall consist of not less than 1 nor
more than 13 members as may be fixed from time to time by a resolution of the
Board of Directors.
(b) Eligibility, Term and Resignation. Directors need not be stockholders
of the Corporation. Each Director shall hold office until his or her successor
shall be duly elected and qualified or until his or her earlier resignation or
removal. A Director may resign at any time upon written notice to the
Corporation.
Section 3.3. Vacancies. Vacancies occurring for any reason may be
filled by a majority vote of the Directors then in office, although less than a
quorum, or by a sole remaining Director. The occurrence of a vacancy which is
not filled by action of the Board of Directors shall constitute a determination
by the Board of Directors that the number of Directors is reduced so as to
eliminate such vacancy, unless the Board of Directors shall specify otherwise.
When one or more Directors shall resign from the Board, effective at a future
date, a majority of the Directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective.
Section 3.4. Meetings of Directors. Regular meetings of the Board of
Directors shall be held at such time and place as the Board of Directors shall
from time to time by resolution appoint; two (2) days written or oral notice
shall be required to be given of any such regular meeting. A special meeting of
the Board of Directors may be called by the Chairman or any Director by giving
two (2) days' notice to each Director by letter, telegram, telephone or other
oral message. Except as otherwise provided by these Bylaws, a majority of the
total number of Directors shall constitute a quorum for the transaction of
business, and the vote of a majority of the Directors present at any meeting at
which a quorum is present shall be the act of the Board of Directors. The
business to be transacted at and the purpose of any meeting of the Board of
Directors shall be specified in the notice or waiver of the meeting.
Section 3.5. Informal Action. 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 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 3.6. Telephone Participation in Meetings. Members of the
Board of Directors, or any committee of the Board of Directors, may participate
in a meeting of the Board of Directors or such committee by means of conference
telephone or similar communications equipment by means of which all person
participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section shall constitute presence in person at such meeting.
Section 3.7. Standing Committees. The Standing Committees of the
Board of Directors shall be an Audit Committee, a Compensation Committee and a
Nominating Committee, each Standing Committee to have at least three (3)
members.
The Board of Directors shall appoint members of each Standing Committee, but no
member of the Audit Committee or Compensation Committee shall be an officer or
employee of the Corporation. Each Standing Committee of the Board shall have
and
exercise such powers and authority of the Board of Directors in the management
of the business and affairs of the Corporation to the extent provided in these
Bylaws and in resolutions adopted by the Board of Directors. The Board may
designate one or more Directors as alternate members of any Standing Committee,
who may replace any absent or disqualified member at any meeting of the
committee.
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Section 3.8. Other Committees. The Board of Directors may by
resolution passed by a majority of the whole Board, designate one or more other
committees, each of which shall consist of one (1) or more Directors. The Board
may designate one or more Directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee.
Each such committee shall have and may exercise such powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation as the Board shall provide in the resolution designating such
committee except as otherwise provided by statute.
Section 3.9. Committee Procedure. The Board of Directors may
establish reasonable rules and regulations for the conduct of the proceedings of
any committee and may appoint a chairman of the committee who need not be a
member thereof and a secretary of the committee who need not be a member
thereof.
To the extent that the Board shall not exercise such powers, they may be
exercised by the committee, subject always to the power of the Board to change
such action.
Section 3.10. Committee Meetings. Each committee shall meet at the
call of its chairman or any two (2) regular members of such committee upon 48
hours' written or oral notice to each member of such committee. The presence or
telephone participation of members (regular or alternate) of any committee equal
in number to a majority of the members of a committee shall constitute a quorum
for the transaction of business, and the vote of a majority of the members
present at or so participating in any meeting at which a quorum is present shall
be the act of the committee.
Section 3.11. Committee Records and Reports. Each committee shall keep
appropriate records of its proceedings. At each regular meeting of the Board of
Directors, each committee shall report to the Board the substance of all action
taken by such committee since the date of its last report to the Board. Each
report shall be filed with the minutes of the meeting of the Board of Directors
to which it is presented, as part of the corporate records.
Section 3.12. Term of Committees. Each committee of the Board of
Directors and each committee member shall serve at the pleasure of the Board.
ARTICLE IV
OFFICERS
Section 4.1. Executive Officers. The Executive Officers of the
Corporation shall be a Chairman, a President, such number of Vice Presidents as
may be determined by the Board of Directors, a Secretary, a Treasurer, a
Controller and a General Counsel, all of whom shall be elected by the Board of
Directors to serve at the pleasure of the Board of Directors. Any two or more
offices may be held by the same person except that the same person may not hold
the offices of President and Secretary. The compensation of each officer
elected
by the Board of Directors following each Annual Meeting of Stockholders and any
other officers designated by the President or the Board of Directors shall be
fixed from time to time by the Compensation Committee.
Section 4.2. The Chairman. The Chairman shall be a Director, shall
preside at meetings of the Board of Directors and of the stockholders, and in
the
absence of the President will assume and execute all the responsibilities of
that
officer.
Section 4.3. The Vice Chairman. The Vice Chairman shall be a
Director, and shall direct and have responsibility for such business and affairs
of the Corporation and its subsidiaries as, from time to time, shall be
established by resolution of the Board of Directors or delegated by the Chairman
in a writing filed with the Secretary of the Corporation. In the absence of the
Chairman, the Vice Chairman shall preside at meetings of the Board of Directors
and of the stockholders.
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Section 4.4. The Chief Executive Officer. The Board of Directors
shall designate either the Chairman or the President to be the Chief Executive
Officer of the Corporation. The Chief Executive Officer shall direct and have
responsibility for all the business and affairs of the Corporation and its
subsidiaries and shall implement the policies and programs adopted or approved
by the Board of Directors.
Section 4.5. The President. The President shall supervise and direct
the business operations of the Corporation, subject to the control of the Board
of Directors and the Chairman when the Chairman has been designated as Chief
Executive Officer. The President shall undertake such other responsibilities
and
duties as may be assigned from time to time by the Board of Directors or by a
Chairman who has been designated as Chief Executive Officer.
Section 4.6. Vice Presidents. The seniority of Vice Presidents shall
be in the order of their election or in such other order as may be designated by
the Board of Directors. Each Vice President shall have and exercise such powers
and duties as from time to time may be conferred upon the Vice President by the
Board of Directors, the Chairman or the President.
Section 4.7. The Secretary and Assistant Secretaries. The Secretary
shall give notice of all meetings of the shareholders and, when required by
these
Bylaws, of meetings of the Board of Directors; shall be present at all such
meetings to keep a record of the proceedings thereof; and shall have charge of
the corporate seal of the Corporation. The Secretary shall be the custodian of
all corporate records and indicia of title and shall perform such other duties
as may be assigned to the Secretary from time to time by the Board of Directors
or the Chief Executive Officer.
One or more Assistant Secretaries may be appointed by the Board of
Directors or the Chief Executive Officer and shall assist the Secretary in the
performance of his duties and shall also exercise such further powers and duties
as from time to time may be conferred upon or assigned to them by the Board of
Directors or the Chief Executive Officer. In the absence or disability of the
Secretary, an Assistant Secretary or Secretary Protempore shall perform the
duties of the Secretary
Section 4.8. The Treasurer and Assistant Treasurers. The Treasurer
shall be the principal officer in charge of financial matters and shall have
charge and custody of and be responsible for the safe keeping of all funds and
securities of the Corporation; shall receive and give receipts for monies due
and
payable to the Corporation from any source whatsoever and deposit all such
monies
in the name of the Corporation in such banks, trust companies or other
depositories as shall be selected by the Board of Directors; and shall perform
such other duties as may be assigned to him from time to time by the Board of
Directors or the Chief Executive Officer.
One or more Assistant Treasurers may be appointed by the Board of Directors
or the Chief Executive Officer and shall assist the Treasurer in the performance
of his duties and shall also exercise such further powers and duties as from
time
to time may be conferred upon or assigned to them or any of them by the Board of
Directors or the Chief Executive Officer. In the absence or disability of the
Treasurer, an Assistant Treasurer shall perform the duties of the Treasurer.
Section 4.9. The Controller and Assistant Controllers. The Controller
shall be the principal officer in charge of accounting matters and shall
maintain
adequate records of all assets, liabilities and transactions of the Corporation
and its subsidiaries; shall render reports as to the financial position and
operations of the Corporation as may be required by the Board of Directors or
the
Chief Executive Officer; and shall perform such other duties as may be assigned
to him from time to time by the Board of Directors or the Chief Executive
Officer.
One or more Assistant Controllers may be appointed by the Board of
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Directors or the Chief Executive Officer and shall assist the Controller in the
performance of his duties as from time to time may be conferred upon or assigned
to them by the Board of Directors or by the Chief Executive Officer. At the
direction of the Controller or in his absence or disability, as Assistant
Controller shall perform the duties of the Controller.
Section 4.10. General Counsel and Associate General Counsel. The
General Counsel shall be the chief legal officer of the Corporation; shall have
supervisory responsibility over all legal matters; and shall perform such other
duties as may from time to time be prescribed by the Board of Directors or the
Chief Executive Officer.
One or more Associate General Counsels, if appointed by the Board of
Directors or the Chief Executive Officer, shall assist the General Counsel in
the
performance of his duties and, at the direction of General Counsel or in his
absence, as Associate General Counsel shall perform the duties of General
Counsel.
Section 4.11. Additional and Assistant Officers, Agents and Employees.
The Board of Directors from time to time may appoint such additional officers,
and such assistant officers, agents and employees, to serve at will or for such
periods, and to have such authority and perform such duties, as shall be
determined by the Board of Directors. Subject to the power of the Board of
Directors, the Chairman or President may appoint from time to time division Vice
Presidents, and such other agents and employees as may be deemed advisable for
the prompt and orderly transaction of the business of the Corporation, prescribe
their authority and duties and the conditions of their employment, and dismiss
them; provided, however, that the powers and duties so delegated shall not
conflict with the provisions of the Certificate of Incorporation, these Bylaws,
or with the powers and duties of any Executive Officer.
Section 4.12. Vacancies. Vacancy in any office or position by reason
of death, resignation, removal, disqualification or any other cause shall be
filed in the manner provided in this Article IV for regular election or
appointment to such office.
Section 4.13. Employment Contracts. The Board of Directors may
authorize the Corporation to enter into employment contracts with any officer or
other employee, upon such terms and conditions, including the duration of
employment (which may be for any period more or less than one year) and the
amount and nature of compensation, as the Board of Directors may approve as
being
in the best interests of the Corporation.
Section 4.14. Term and Compensation. Officers shall be elected by the
Board of Directors from time to time, to serve at the pleasure of the Board.
Each officer shall hold office until his or her successor is elected and
qualified, or until his or her earlier resignation or removal. Any officer may
resign at any time upon written notice to the Corporation. The compensation of
all officers shall be fixed by, or pursuant to authority delegated by, the Board
of Directors from time to time.
ARTICLE V
INDEMNIFICATION
Section 5.1. Directors and Officers. The Corporation shall have the
power to indemnify and shall indemnify, to the fullest extent now or hereafter
permitted by law, each Director or officer (including each former Director or
officer) of the Corporation and each director (including each former director)
of a wholly-owned subsidiary of the Corporation who was or is a party to or
witness in or is threatened to be made a party to or a witness in any
threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
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administrative or investigative, by reason of the fact that he is or was an
authorized representative of the Corporation, against all expenses (including
attorneys' fees and disbursements), judgments, fines (including excise taxes and
penalties) and amounts paid in settlement actually and reasonably incurred by
him
in connection with such action, suit or proceeding.
Section 5.2. Payment of Expenses. The Corporation shall pay expenses
(including attorneys' fees and disbursements) incurred by a Director or officer
of the Corporation or director of a wholly-owned subsidiary of the Corporation
referred to in Section 5.1 hereof in defending or appearing as a witness in any
civil or criminal action, suit or proceeding. The expenses incurred by such
Director or officer of the Corporation or director of a wholly-owned subsidiary
of the Corporation in his capacity as a Director or officer of the Corporation
or director of a wholly-owned subsidiary of the Corporation shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding only upon receipt of an undertaking by or on behalf of such Director
or officer of the Corporation or director of a wholly-owned subsidiary of the
Corporation to repay all amounts advanced if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation because he has not
met the standard or conduct set forth in the first sentence of Section 5.5
hereof.
Section 5.3. Permissive Indemnification and Advancement of Expenses.
The Corporation may, as determined by the Board of Directors from time to time,
indemnify to the fullest extent now or hereafter permitted by law, any person
who
was or is a party to or a witness in or is threatened to be made a party to or
a witness in, or is otherwise involved in, any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was an authorized
representative of the Corporation, against all expenses (including attorneys'
fees and disbursements), judgments, fines (including excise taxes and
penalties),
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding. Subject to Section 5.2 hereof,
the Corporation may, as determined by the Board of Directors from time to time,
pay expenses incurred by any such person by reason of his participation in an
action, suit or proceeding referred to in this Section 5.3 in advance of the
final disposition of such action, suit or proceeding.
Section 5.4. Basis of Rights; Other Rights. Each Director and officer of
the Corporation and director of a wholly-owned subsidiary of the Corporation
shall be deemed to act in such capacity in reliance upon such rights of
indemnification and advancement of expenses as are provided in this Article.
The
rights of indemnification and advancement of expenses provided by this Article
shall not be deemed exclusive of any other rights to which any person seeking
indemnification or advancement of expenses may be entitled under any agreement,
vote of stockholders or disinterested Directors, statute or otherwise, both as
to action in such person's official capacity and as to action in another
capacity
while holding such office or position, and shall continue as to a person who has
ceased to be an authorized representative of the Corporation and shall inure to
the benefit of the heirs, executors and administrators of such person.
Section 5.5. Determination of Indemnification. Any indemnification
under this Article shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the authorized
representative is proper in the circumstances because such person has acted in
good faith and in a manner he 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 conduct was unlawful. Such
determination shall be made (1) 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 (2) if a quorum of disinterested Directors so directs, by
independent legal counsel in a written opinion, or (3) by the stockholders. The
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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 such person 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 such person's conduct was
unlawful.
Section 5.6. Insurance. The Corporation shall purchase and maintain
insurance on behalf of each Director and officer against any liability asserted
against or incurred by such Director or officer in any capacity, or arising out
of such Director's or officer's status as such, whether or not the Corporation
would have the power to indemnify such Director or officer against such
liability
under the provisions of this Article. The Corporation shall not be required by
these Bylaws to maintain such insurance if it is not available on terms
satisfactory to the Board of Directors or if, in the business judgment of the
Board of Directors either (i) the premium cost for such insurance is
substantially disproportionate to the amount of coverage, or (ii) the coverage
provided by such insurance is so limited by exclusions that there is
insufficient
benefit from such insurance. The Corporation may purchase and maintain
insurance
on behalf of any person referred to in Section 5.3 hereof against any liability
asserted against or incurred by such person in any capacity, whether or not the
Corporation would have the power to indemnify such persons against such
liability
under the provisions of this Article.
Section 5.7. Powers of the Board. The Board of Directors, without
approval of the stockholders, shall have the power to borrow money on behalf of
the Corporation, including the power to pledge the assets of the Corporation,
from time to time to discharge the Corporation's obligations with respect to
indemnification, the advancement and reimbursement of expenses, and the purchase
and maintenance of insurance referred to in this Article V.
Section 5.8. Definition - Corporation. For purposes of this Article,
references to "the Corporation" shall include, in addition to the Corporation,
any and all predecessors and constituent entities directly or indirectly merged
or consolidated into the Corporation or any predecessor or constituent entity of
any such entity.
Section 5.9. Definition - Authorized Representative. For the purposes
of this Article, the term "authorized representative" shall mean a Director,
officer, employee or agent of the Corporation or of any subsidiary of the
Corporation, or a trustee, custodian, administrator, committeeman or fiduciary
of any employee benefit plan established and maintained by the Corporation or by
any subsidiary of the Corporation, or a person serving another corporation,
partnership, joint venture, trust or other enterprise in any of the foregoing
capacities at the request of the Corporation.
ARTICLE VI
SHARES OF CAPITAL STOCK
Section 6.1. Share Certificates. Every holder of stock in the
Corporation shall be entitled to a certificate or certificates, to be in such
form as the Board of Directors may from time to time prescribe, signed by the
Chairman or President and by the Secretary, sealed with the seal of the
Corporation, and where signed by a transfer agent or by a registrar the
signatures of the President and Secretary may be facsimile. Each certificate
shall exhibit the name of the registered holder thereof, the number and class of
shares and the designation of the series, if any, which the certificate
represents. The Board of Directors may, if it so determines, direct that
certificates for shares of stock of the Corporation be signed by a transfer
agent
and/or registered by a registrar, in which case such certificates shall not be
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valid until so signed and/or registered. The Board of Directors may authorize
the issuance of certificates for fractional shares or, in lieu thereof, scrip or
other evidence of ownership, which may (or may not) as determined by the Board
of Directors entitle the holder thereof to voting, dividends or other rights of
shareholders.
In case any officer of the Corporation who shall have signed, or whose
facsimile signature shall have been used, on any such certificate shall cease to
be such an officer, whether because of death, resignation or otherwise, before
or after such certificate shall have been delivered by the Corporation, such
certificates shall nevertheless be deemed to have been adopted by the
Corporation
and may be issued and delivered though the person who signed such certificate or
whose facsimile signature shall have been used thereon had not ceased to be such
officer.
Section 6.2. Transfer of Stock. Shares of capital stock of the
Corporation shall be transferred only on the books of the Corporation, by the
holder of record in person or by the holder's duly authorized representative,
upon surrender to the Corporation of the certificate for such shares duly
endorsed for transfer, together with such other documents (if any) as may be
required to effect such transfer.
Section 6.3. Transfer Agents and Registrars. The Board of Directors
may appoint any one or more qualified banks, trust companies or other
corporations organized under any law of any state of the United States or under
the laws of the United States as agent or agents for the Corporation in the
transfer of the stock of the Corporation and likewise may appoint any one or
more
qualified banks, trust companies or other corporations as registrar or
registrars
of the stock of the Corporation.
Section 6.4. Lost, Stolen, Destroyed, or Mutilated Certificates. New
stock certificates may be issued to replace certificates alleged to have been
lost, stolen, destroyed, or mutilated, upon such terms and conditions, including
proof of loss or destruction, and the giving of a satisfactory bond of
indemnity,
as the Board of Directors from time to time may determine.
Section 6.5. Regulations. The Board of Directors shall have power and
authority to make all such rules and regulations not inconsistent with these
Bylaws as it may deem expedient concerning the issue, transfer, and registration
of shares of capital stock of the Corporation.
Section 6.6. Holders of Record. The Corporation shall be entitled to
treat the holder of record of any share or shares of capital stock of the
Corporation as the holder and owner in fact thereof for all purposes and shall
not be bound to recognize any equitable or other claim to, or right, title, or
interest in, such share or shares on the part of any other person, whether or
not
the Corporation shall have express or other notice thereof, except as otherwise
provided by the laws of the State of Delaware.
Section 6.7. Treasury Shares. Shares of the Corporation's stock held
in its treasury shall not be voted, directly or indirectly, at any meeting.
Section 6.8. Fixing of Record Dates. The Board of Directors may fix
a date, not more than sixty days prior to the date of the date fixed for the
payment of any dividend or distribution, or the date for the allotment of
rights,
or the date when any change or conversion of exchange of shares will be made or
go into effect, as a record date for the determination of the stockholders
entitled to receive payment of any such dividend or distribution, or to receive
any such allotment of rights, or to exercise the rights in respect to any such
change, conversion, or exchange of shares. In such case, only such stockholders
as shall be stockholders of record on the date so fixed shall be entitled to
receive payment of such dividend, or to receive such allotment of rights, or to
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exercise such rights, as the case may be, notwithstanding any transfer of any
shares on the books of the Corporation after any record date fixed aforesaid.
ARTICLE VII
LOANS, NOTES, CHECKS,
CONTRACTS AND OTHER INSTRUMENTS
Section 7.1. Loans. No loans shall be contracted on behalf of the
Corporation unless authorized by the Board of Directors. Such authority may be
general or confined to specific instances.
Section 7.2. Notes, Checks, Etc. All notes, drafts, acceptances,
checks, endorsements (other than for deposit) and all evidences of indebtedness
of the Corporation whatsoever shall be signed by an Executive Officer, and shall
be signed by such other officers or agents and shall be subject to such
requirements as to countersignatures or other conditions as the Board of
Directors from time to time may designate. Facsimile signatures on checks may
be used unless prohibited by the Board of Directors.
Section 7.3. Execution of Instruments Generally. Except as provided
in Section 7.2, all contracts and other instruments requiring execution by the
Corporation may be executed and delivered by the Chairman, the President or any
Vice President and authority to sign any such contracts or instruments, which
may
be general or confined to specific instances, may be conferred by the Board of
Directors upon any other person or persons. Any person having authority to sign
on behalf of the Corporation may delegate, from time to time, by instrument in
writing, all or any part of such authority to any person or persons if
authorized
to do so by the Board of Directors.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1. Corporate Seal. The Corporation may adopt a seal in such
form as the Board of Directors shall from time to time determine.
Section 8.2. Fiscal Year. The fiscal year of the Corporation shall
be the calendar year or as otherwise designated by the Board of Directors from
time to time.
Section 8.3. Authorization. All checks, notes, vouchers, warrants,
drafts, acceptances, and other orders for the payment of moneys of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 8.4. Reports to Stockholders. The Board of Directors shall
cause to be sent to the stockholders of the Corporation prior to the time of the
annual meeting of stockholders a financial report as of the end of the preceding
fiscal year. Such report shall be examined and reported upon by an independent
certified public accountant. The Board of Directors shall have discretion to
determine whether other reports shall be sent to stockholders, what such reports
shall contain, and whether they shall be audited or accompanied by the report of
an independent or certified public accountant.
Section 8.5. Effect of Bylaws. No provision in these Bylaws shall
vest any property right in any stockholder.
Section 8.6. Notices to Stockholders and Waivers of Notices.
(a) Whenever, under the provisions of applicable law or of the
Certificate of Incorporation or of these Bylaws, written notice is required to
be given to any stockholder, it may be given to such person either personally or
by sending a copy thereof through the mail or by telegram, postage or charges
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prepaid, directed to such stockholder at the address of the stockholder as it
appears on the records of the Corporation. If the notice is sent by mail or
telegraph, it shall be deemed to have been given to the person entitled thereto
when deposited in the United States mail or with a telegraph office for
transmission to such person. Such notice shall specify the place, date and hour
of the meeting and, in the case of special meeting of stockholders, the purpose
or purposes for which the meeting is called. 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. 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 (30) 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.
(b) Whenever notice to stockholders is required to be given, under the
provisions of applicable law or of the Certificate of Incorporation or of these
Bylaws, a written waiver of such notice, signed by the person entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to such notice. Neither the business to be transacted at nor the
purpose of any regular or special meeting of the stockholders need be specified
in any written wavier of notice of such meeting. Attendance of a stockholder at
any meeting shall constitute a waiver of notice of such meeting, except when the
stockholder 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.
Section 8.7. Interested Directors; Quorum.
(a) No contract or transaction between the Corporation and one or more
of its Directors or officers, 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 solely for this reason, or solely because
the
Director or officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if:
(1) 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) 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 thereof, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(3) 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.
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ARTICLE IX
AMENDMENTS
The authority to adopt, amend or repeal Bylaws of the Corporation is
expressly conferred upon the Board of Directors, which may take such action by
the affirmative vote of a majority of the whole Board of Directors at any
regular
or special meeting duly convened after notice of that purpose, subject always to
the power of the stockholders to adopt, amend or repeal Bylaws.
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