Exhibit 3.(II)
SECRETARY'S CERTIFICATE
I, Richard C. Pagano, hereby certify that I am the duly elected,
qualified and acting Secretary of USFreightways Corporation, a Delaware
corporation, (the Company), and as such have access to its corporate records and
seal and am generally familiar with its affairs; I further certify that attached
hereto is a true and correct copy of a resolution duly adopted by the Board of
Directors of the Company at a meeting held on May 3, 1996, and that said
resolution is now in full force and effect.
Witness my hand and the corporate seal of the Company this 13th day of
August, 1996.
/s/ Richard C. Pagano
------------------------
Richard C. Pagano
Secretary
USFreightways Corporation
AMENDMENT TO THE BY-LAWS OF
USFREIGHTWAYS CORPORATION
RESOLVED, that the By Laws of the Company be amended to reflect the Company's
new name, USFreightways Corporation, specifically, that the first sentence of
Section 1.1 be amended to read as follows:
"USFreightways Corporation (the Corporation) may have offices either
within or without the State of Delaware."
BY-LAWS
of
USFreightways Corporation
Dated May 3, 1996
ARTICLE I
Offices
SECTION 1.1 Offices. USFreightways Corporation (the "Corporation") may have
offices either within or without the State of Delaware. The registered office of
the Corporation and the name of the registered agent of the Corporation are as
is set forth in the Restated Certificate of Incorporation of the Corporation, or
as may subsequently be or have been changed by resolution of the Board of
Directors (the "Board").
ARTICLE II
Meetings of Stockholders
SECTION 2.1. Annual Meetings. An annual meeting of the stockholders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before the meeting shall be held on such date and
at such time as the Board may from time to time determine, or, if not so
designated, then at 10:00 a.m., on the third Tuesday in April in each year if
not a legal holiday, and, if a legal holiday, at the same hour on the next
succeeding work day, and at such place as shall be designated by the Board in
the notice thereof.
At any annual meeting of stockholders, only such business shall be conducted as
shall have been brought before the annual meeting (i) by or at the direction of
the chairman of the meeting or (ii) by any stockholder who complies with the
procedures set forth in this Section 2.1.
For business properly to be brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in proper written form to
the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 30 days nor more than 60 days prior to the annual
meeting; provided, however, that in the event that less than 40 days' notice or
prior public disclosure of the date of the annual meeting is given or made to
stockholders, notice by the stockholder to be timely must be received not later
than the close of business on the 10th day following the day on which such
notice of the date of the annual meeting was mailed or such public disclosure
was made. To be in proper written form, a stockholder's notice to the Secretary
shall set forth in writing as to each matter the stockholder proposes to bring
before the annual meeting: (I) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting; (ii) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business; (iii) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder; and (iv) any material interest of the stockholder in such business.
Notwithstanding anything in the By-laws to the contrary, no business shall be
conducted at any annual meeting except in accordance with the procedures set
forth in this Section 2.1.
SECTION 2.2. Special Meetings. A special meeting of the stockholders for any
purpose or purposes may be called at any time by the Board, or by any committee
of the Board which has been duly designated by the Board and whose powers and
authority, as expressly provided in a resolution of the Board, include the power
to call such meetings, and such meeting shall be held on such date and at such
place and hour as shall be designated in the notice thereof. Upon written
request of any stockholder or stockholders holding in the aggregate one-fifth of
the voting power of all stockholders delivered in person or sent by registered
mail to the Chairman of the Board, the Chief Executive Officer, the President or
the Secretary of the Corporation, the Secretary shall call a special meeting of
stockholders to be held at such time and place as the board my fix; provided,
however, that no stockholder may request a Special Meeting pursuant to this
Section 2.2 on more than two occasions during any twelve month period. Only such
business as is specified in the notice of any special meeting of the
stockholders shall come before such meeting.
SECTION 2.3. Notice of Meetings. Notice of each meeting of the stockholders
shall be given not less than 10 nor more than 60 days before the date of the
meeting to each stockholder of record entitled to notice of, or to vote at, such
meeting by delivering a typewritten or printed notice thereof to such
stockholder personally or by depositing such notice in the United States mail,
postage prepaid, directed to such stockholder at his address as it appears on
the stock record of the Corporation. Every such notice shall state the place,
date and hour of the meeting and, in the case of a special meeting is called.
Notice of the time, place and purpose of any meeting of stockholders may be
waived in writing, either before or after such meeting, and will be waived by
any stockholder by his attendance there at, in person or by proxy (unless such
stockholder protests, prior to or at the commencement of the meeting, the lack
of proper notice to such stockholder). Any stockholder waiving notice of a
meeting shall be bound by the proceedings of any such meeting in all respects as
if due notice thereof had been given.
SECTION 2.4. Adjournments. Any meeting of stockholders, annual or special, may
adjourn from time to time to reconvene at the same or some 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.
SECTION 2.5. Quorum and Manner of Acting. The presence in person or by proxy of
stockholders holding of record a majority of the shares of stock of the
Corporation entitled to be voted shall constitute a quorum for the transaction
of business at any meeting of the stockholders. In the absence of a quorum at
any such meeting or any adjournment or adjournments thereof, a majority in
voting interest of those present in person or by proxy and entitled to vote, or,
in the absence therefrom of all the stockholders, any officer entitled to
preside at, or to act as secretary of, such meeting, may adjourn such meeting
from time to time in the manner provided in Section 2.4 until stockholders
holding the amount of stock requisite for a quorum shall be present in person or
by proxy. The absence from any meeting in person or by proxy of stockholders
holding the number of shares of stock of the Corporation required for action
upon any given matter which may properly come before the meeting if there shall
be present there at, in person or by proxy of stockholders holding the number of
shares of stock of the Corporation required for action upon any given matter
shall be present there at, in person or by proxy, stockholders holding the
number of shares of stock of the Corporation required in respect of such other
matter. The stockholders present at a duly called or convened meeting, at which
a quorum is present, may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
SECTION 2.6. Organization of Meetings. At each meeting of the stockholders,
one of the following shall act as chairman of the meeting and preside there at,
in the following order of precedence:
(a) the Chairman of the Board, or, if he is not present or if no person holds
such office, any officer or director of the Corporation designated by the Board;
or
(b) any officer or director of the Corporation designated by a majority in
voting interest of the stockholders present in person or by proxy and entitled
to vote there at.
The person whom the chairman of the meeting shall appoint, shall act as
secretary of the meeting and keep the minutes thereof.
SECTION 2.7. Order of Business. The order of business at each meeting of the
stockholders shall be determined by the chairman of the meeting, but such order
of business may be changed by a majority in voting interest of those present in
person or by proxy at such meeting and entitled to vote there at. The chairman
of the meeting shall have the right and authority to prescribe such acts and
things as are necessary or desirable for the proper conduct of the meeting,
including, without limitation, the establishment of procedures for the
maintenance of order and safety, limitations on the time allotted to questions
or comments on the affairs of the Corporation, restrictions on entry to such
meeting after the time prescribed for the commencement thereof, and the opening
and closing of the voting polls.
The chairman of any meeting shall, if the facts warrant, determine and declare
to such meeting that business was not properly brought before the annual meeting
in accordance with the provisions of Sections 2.1 or 2.2 hereof and, if he
should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
SECTION 2.8. Voting. Each stockholder shall, at each meeting of the
stockholders, be entitled to one vote in person or by proxy for each share of
stock of the Corporation which has voting power on the matter in question held
by him and registered in his name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 8.6 of Article VIII
of these By-laws as the record date for the determination of stockholders who
shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on
the day next preceding the day on which notice of the meeting shall be given or,
if notice of the meeting shall be waived, at the close of business on the day
next preceding the day on which the meeting shall be held, or, if no record date
for determining stockholders entitled to express consent to corporate action in
writing without a meeting shall have been fixed, the day on which the first
written consent is expressed.
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. Any vote
of stock of the Corporation may be given at any meeting of the stockholders by
the person entitled to vote the same in person or by proxy (who need not be a
stockholder) appointed by an instrument in writing delivered to the secretary of
the meeting; provided, however, that no proxy shall be voted or acted upon after
three years from its date unless such proxy provides for a longer period. The
attendance at any meeting of a stockholder who may theretofore have given a
proxy shall not have the effect of revoking the same unless he shall in writing
so notify the secretary of the meeting prior to voting of the proxy. Shares
standing in the names of two or more persons shall be voted or represented in
accordance with the determination of the majority of such persons, or, if only
one of such persons is present in person or represented by proxy, such person
shall have the right to vote such shares and such shares shall be deemed to be
represented for the purpose of determining a quorum. At all meetings of
stockholders for the election of directors a plurality of the votes cast shall
be sufficient to elect. All other elections and questions shall, unless
otherwise provided by law, the Certificate of Incorporation or these By-laws, be
decided by the vote which could be cast by the holders of all shares of stock
entitled to vote thereon which are present in person or represented by proxy at
the meeting. Unless otherwise required by law or directed by the chairman of the
meeting, the vote at any meeting of the stockholders on any question need not be
by ballot. On a vote by ballot, each ballot shall be signed by the stockholder
voting, or by his proxy if there be such proxy, and shall state the number of
shares voted.
SECTION 2.9. Consent in Lieu of Meeting. Anything herein to the contrary
notwithstanding, 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 at any annual
or special meeting of such stockholders or may be taken without a meeting,
without prior notice and without a vote if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than 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. Prompt notice of the taking of the corporate action
without a meeting by stockholders who have not consented in writing and any
certificate filed with respect to such matter shall state that such written
notice has been given.
SECTION 2.10. List of Stockholders. It shall be the duty of the officer of the
Corporation who shall have charge of the stock ledger of record, either directly
or through another officer of the Corporation or agent thereof, to prepare and
make, at least 10 days before every meeting of the stockholders, a complete list
of the stockholders entitled to vote there at, 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 10 days prior to the meeting, either at
the place where the meeting is to be held or at such other place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting. 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. The stock record shall be the only evidence as to
who are the stockholders entitled to examine the stock record, such list or the
books of the Corporation or to vote in person or by proxy at any meeting of the
stockholders.
SECTION 2.11. Inspectors. Either the Board or, in the absence of a designation
of inspectors by the Board, the chairman of the meeting may, in its or his
discretion, appoint two or more inspectors, who need not be stockholders, who
shall receive and take charge of ballots and proxies and decide all questions
relating to the qualification of those asserting the right to vote and the
validity of ballots and proxies.
In the event of the failure or refusal to serve of any inspector designated by
the Board, the chairman of the meeting shall appoint an inspector to act in
place of each such inspector designated by the Board. In the absence of a
designation of inspectors by the Board and the chairman of the meeting, the
secretary of the meeting shall perform the duties which would otherwise have
been performed by the inspectors.
ARTICLE III
Board of Directors
SECTION 3.1. General Powers. The property, business, affairs and policies of
the Corporation shall be managed by or under the direction of the Board.
SECTION 3.2. Number and Term of Office. The Board shall consist of not less than
three nor more than twenty-one directors. The exact number of directors shall be
determined from time to time by a resolution or resolutions adopted by the
affirmative vote of a majority of the total number of directors which the
corporation would have if there were no vacancies (the "entire Board"). The
directors shall be divided into three classes. Each class shall consist, as
nearly as may be possible, of one-third of the total number of directors
constituting the entire Board. If the classes of directors are not equal in
number, the Board shall determine which class shall contain an unequal number of
directors.
Upon, or as soon as practicable following, the filing of the Restated
Certificate of Incorporation, the first class of directors shall be elected for
a term to expire at the annual meeting next ensuing, the second class until the
second annual meeting thereafter, and the third class until the third annual
meeting thereafter. At each succeeding annual meeting of stockholders,
successors to the class of directors whose term expires at that annual meeting
shall be elected for a three-year term. If the number of directors is changed in
accordance with the terms of the Certificate of Incorporation and this Section
3.2, any increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly equal as possible and
any additional director of any class elected to fill a vacancy resulting from an
increase in such class shall hold office for a term that shall coincide with the
remaining term of that class, but in no case will a decrease in the number of
directors shorten the term of any incumbent director. A director shall hold
office until the annual meeting for the year in which his or her term expires
and until his or her successor shall be elected and shall qualify, subject,
however, to the director's prior death, resignation, disqualification or removal
from office.
SECTION 3.3 Nomination and Election of Directors.
Nominations of persons for election to the Board may be made at any annual
meeting of stockholders by or at the direction of the Board or by any
stockholder of the Corporation entitled to vote for the election of directors at
the meeting who was a stockholder of record at the time of giving of notice
provided for in this Section 3.3 and who complies with the notice procedures set
forth in this Section 3.3. Any such nomination by a stockholder shall be made
pursuant to timely notice in writing to the Secretary of the Corporation. To be
timely notice for an annual meeting, a stockholder's notice shall be delivered
to and received by the Secretary of the Corporation not less than 60 days nor
more than 90 days prior to the first anniversary of the preceding year's annual
meeting; provided that, in the event that the date of the annual meeting is
advanced by more than 30 days or delayed by more than 60 days from such
anniversary date, notice by the stockholder to be timely must be so delivered
and received not earlier than the 90th day prior to such annual meeting and not
later than the close of business on the later of the 60th day prior to such
annual meeting and the 10th day following the day on which a public announcement
of the date of such meeting is first made. Notwithstanding anything in the
foregoing sentence to the contrary, in the event that the number of directors to
be elected to the Board is increased and there is no public announcement naming
all of the nominees for director or specifying the size of the increased Board
made by the Corporation at least 70 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this Section
3.3 shall also be considered timely, but only with respect to nominees for any
new positions created by such increase, if it shall be delivered to the
Secretary of the Corporation at the principal executive office of the
Corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the Corporation.
Nominations of persons for election to the Board may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (i) by or at the direction of the Board or (ii)
by any stockholder of the Corporation who is a stockholder of record at the time
of giving of notice provided for in this Section 3.3, who shall be entitled to
vote at the meeting and who complies with the notice procedures set forth in
this Section 3.3. In the event the Corporation calls a special meting of
stockholders for the purpose of electing one or more directors to the Board, any
such stockholder may nominate a person or persons (as the case may be) for
election to such position(s) as specified in the Corporation's notice of
meeting, if the stockholder's notice shall be delivered to and received by the
secretary of the Corporation at the principal executive offices of the
Corporation not earlier than the 90th day prior to such special meeting and not
later than the close of business on the later of the 60th day prior to such
special meeting and the 10th day following the day on which a public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board to be elected at such meeting.
Any stockholder's notice delivered pursuant to this Section 3.3 shall set forth
in writing (i) as to each person whom the stockholder proposes to nominate for
election or re-election as a director (A) the name, age, business address and
residence address of such person, (B) the principal occupation or employment of
such person, (C) the number of shares of stock of the Corporation which are
beneficially owned by such person, and (D) any other information relating to
such person that is required to be
disclosed in connection with the solicitation of proxies for election of
directors, or as otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934 (the "Exchange Act") (including,
without limitation, such person's written consent to being named in proxy
statement as a nominee and to serving as a director if elected), and any other
applicable laws or rules or regulations of any governmental authority or of any
national securities exchange or similar body overseeing any trading market on
which shares of the Corporation are traded; and (ii) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the
nomination is made (A) the name and address of such stockholder, as they appear
on the Corporation's books, and of such beneficial owner and (B) the class and
number of shares of the Corporation which are owned beneficially and of record
by such stockholder and such beneficial owner.
At the request of the Board, any person nominated by the Board for election as a
director shall furnish to the Secretary of the Corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 3.3. The chairman of the meeting shall, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by these By-Laws and in that event the defective
nomination shall be disregarded. In addition to the provisions of this Section
3.3, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder, and any other applicable
laws or rules or regulations of a governmental authority or any national
securities exchange or similar body overseeing any trading market on which
shares of the Corporation are traded, with respect to the matters set forth
herein.
At each meeting of the stockholders for the election of directors, provided a
quorum is present, the directors nominated in accordance with this Section 3.3
for election at such meeting shall be elected by a plurality of the votes
validly cast in such election. Directors need not be stockholders of the
Corporation or residents of the State of Delaware.
SECTION 3.4 Meetings.
(a) Regular Meetings. Regular meetings of the Board or any committee thereof
shall be held as the Board or such committee thereof shall from time to time
determine. If any day fixed for a regular meeting shall be a legal holiday at
the place where the meeting is to be held, then the meeting which would
otherwise be held on that day shall be postponed until the next succeeding
business day.
(b) Notice of Meetings. Special meetings of the Board, at which any and all
business may be transacted, shall be held whenever called by the Chief Executive
Officer, the President, the Chairman of the Board or a majority of the Board.
(c) Notice of Meetings. No notice of regular meetings of the Board or of any
committee thereof or of any adjourned meeting thereof need be given. Notice
shall be given to each special meeting of the Board or adjournment thereof,
including the time and place thereof. Notice of each such meeting shall be
mailed to each director, addressed to him at his residence or usual place of
business, at least two days before the day on which such meeting is to be held,
or shall be sent to him at such place by facsimile, telegraph, cable, wireless
or other form of recorded communication, or be delivered personally or by
telephone not later than the day before the day on which such meeting is to be
held, but notice need not be given to any director who shall attend such
meeting. A written waiver of notice, signed by the person entitled thereto,
whether before or after the time of the meeting stated therein, shall be deemed
equivalent to notice. The purposes of a meeting of the Board or any committee
thereof need not be specified in the notice thereof.
(d) Time and Place of Meetings. Regular meetings of the Board or any committee
thereof shall be held at such time or times and place or places as the Board or
such committee may from time to time determine. Each special meeting of the
Board or any committee thereof shall be held at such time and place as the
caller or callers thereof may determine. In the absence of such a determination,
each regular meeting or special meeting of the Board or any committee thereof
shall be held at such time and place as shall be designated in the notices or
waivers of notice thereof.
(e) Quorum and Manner of Acting. A majority of the directors then in office and
a majority of the members of any committee shall be present in person at any
meeting thereof in order to constitute a quorum for the transaction of business
at such meeting and the vote of a majority of the directors present at any such
meeting at which a quorum is present shall be necessary for the passage of any
resolution or for an act to be the act of the Board or such committee. In the
absence of a quorum, a majority of the directors present there at may adjourn
such meeting from time to time until a quorum shall be present there at. Notice
of any adjourned meeting need not be given.
(f) Organization of Meetings. At each meeting of the Board, the Chairman of the
Board or, if he is not present or if no person holds such office, any director
chosen by a majority of the directors present there at shall act as chairman of
the meeting and preside there at. The person whom the chairman of the meeting
shall appoint shall act as secretary of such meeting and keep the minutes
thereof. The order of business at each meeting of the Board shall be determined
by the chairman of such meeting.
(g) Consent in Lieu of Meetings. Anything herein to the contrary
notwithstanding, any action required or permitted to be taken at any meeting of
the Board or any 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 a writing
or writings and such writing or writings are filed with the minutes of the
proceedings of the Board or such committee.
(h) Action by Communications Equipment. The directors may participate in a
meeting of the Board or any committee thereof by means of 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 such meeting.
SECTION 3.5. Compensation. Each director who is not also a salaried employee of
the Company or any of its affiliates, in consideration of his serving as such,
shall be entitled to receive from the Corporation such amount per annum and such
fees for attendance at meetings of the Board or of any committee, or both, as
the Board shall from time to time determine. The Board may provide that the
Corporation shall reimburse each director or member of a committee, including
any director who is a salaried employee of the Company or any of its affiliates,
for any expenses incurred by him on account of his attendance at any such
meeting.
SECTION 3.6. Resignation, Removal and Vacancies. Any director may resign at any
time by giving written notice of his resignation to the Board. Any such
resignation shall take effect at the time specified therein or, if the time when
it shall become effective shall not be specified therein, when accepted by the
Board. Except as aforesaid, the acceptance of such resignation shall not be
necessary to make it effective.
Any director may be removed at any time for cause by vote of the holders of a
majority in voting interest of shares then entitled to vote at an election of
directors; provided, however, that for as long as TNT Limited, or any affiliate
of TNT Limited, owns a majority of such outstanding shares of capital stock, any
director or the entire Board of Directors may be removed in the manner described
above with or without cause. The vacancy in the Board caused by any such removal
may be filled by the stockholders at such meeting or as provided in the next
paragraph of these By-laws.
In the case of any vacancy on the Board or in the case of any newly created
directorship, a director to fill the vacancy or the newly created directorship
for the unexpired portion of the term being filled may be elected by a majority
of the directors of the Corporation then in office, though less than a quorum,
or by a sole remaining director. The director elected to fill such vacancy shall
hold office for the unexpired term in respect of which such vacancy occurred and
until his successor shall be elected and shall qualify or until his earlier
death or resignation or removal in the manner herein provided.
ARTICLE IV
Committees
SECTION 4.1. Number, Appointment, Term of Office. etc. The Board, by resolution
or resolutions passed by a majority of the Board, may designate one or more
committees, each committee to consist of one or more directors then in office.
Each member of any such committee shall continue as such only so long as he
remains a director and may be removed at any time, with or without cause, by a
majority of the Board. Any vacancy on any committee may be filled at any time by
the vote of a majority of the Board.
In the absence or in case of the disqualification of a member or members of any
such committee, the member or members of such committee present and not
disqualified from voting at a meeting of such committee, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board to
act at such meeting in place of any absent or disqualified member.
SECTION 4.2. Functions and Powers. Each committee shall have such functions and
powers as the Board shall deem advisable and, subject to any limitations or
restrictions which may be prescribed by resolution of the Board, if an Executive
Committee is designated, it shall have and may exercise all the powers and
authority of the Board in the management of the property, business, affairs and
policies of the Corporation, including the power and authority to declare
dividends and to authorize the issuance of stock of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers which may
require it; provided, however, that no committee shall have the power of
authority to: approve amendments to the Certificate of Incorporation of the
Corporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the board as provided in Section 151(a) of the Delaware General Corporation
Law, fix the designations and any of the preferences or rights of such shares or
fix the number of shares of any series of stock or authorize the increase or
decrease of the shares of any series); adopt agreements of merger or
consolidation; recommend to the stockholders the sale, lease or exchange of all
or substantially all the property and assets of the Corporation; recommend to
the stockholders the dissolution of the Corporation or the revocation of such a
dissolution; or amend these By-laws.
SECTION 4.3. Rules. Subject to the provisions of these By-laws, each committee
by resolution adopted by a majority of all the members thereof shall fix its
rules of procedure.
ARTICLE V
Officers
SECTION 5.1. Election and Appointment and Term of Office. The Corporation shall
have such officers with such titles as shall be stated in a resolution of the
Board, and with such duties as shall be given them as hereinafter provided or as
may otherwise be specifically given them by the Board, but such officers shall
include at least (a) a Chairman of the Board or one or more Vice-Chairmen of the
Board or a Chief Executive Officer or a President, or any or all the foregoing,
and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one
or more Assistant Treasurers, or any or all of the foregoing. One of such
officers shall have the duty to record the proceedings of the meetings of
stockholders and directors in a book to be kept for that purpose. Any number of
offices may be held by the same person except that at least one person who holds
an office referred to in clause (a) of the second preceding sentence shall not
be the same as at least one person who holds any office referred to in clause
(b) of the second preceding sentence.
SECTION 5.2. Resignation, Removal and Vacancies. Any officer may resign at any
time by giving written notice of his resignation to the Board. Any such
resignation shall take effect at the time specified therein or, if the time when
it shall become effective shall not be specified therein, when accepted by the
Board. Except as aforesaid, the acceptance of such resignation shall not be
necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed,
with or without cause, at any time by the Board. Any agent or employee appointed
by an officer may be removed, with or without cause, at any time by such
officer.
A vacancy in any office may be filled for the unexpired portion of the term in
the same manner as provided in these By-laws for election or appointment to such
office.
SECTION 5.3. Duties and Functions. If any of the following offices is created
and a person appointed or elected thereto, and unless the Board otherwise
provides, such offices and persons shall have the following duties and
functions:
(a) Chairman. If a Chairman of the Board is appointed or elected, he shall be a
member of the Board, shall preside at meetings of the Board and of the
stockholders at which he shall be present, shall perform such duties as are
incident to the office of the Chairman of the Board, and shall perform such
other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are
appointed or elected, they shall be members of the Board, shall perform such
duties as are incident to the office of the Vice-Chairman of the Board, and
shall perform such other duties as may from time to time be prescribed by the
Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive
Committee is appointed or elected, he shall be a member of the Board, shall
preside at meetings of the Executive Committee, shall when requested consult
with and advise the other officers of the Corporation, and shall perform such
other duties as may be agreed upon with them or as the Board or the Executive
Committee may from time to time determine.
(d) Chief Executive Officer. If a Chief Executive Officer is appointed or
elected, he shall, subject to the control of the Board, have general charge and
management of the property, business and affairs of the Corporation and shall
have the direction of, and may assign duties to, all other officers (other than
the Chairman and any Vice-Chairman, if either or both is appointed or elected),
agents and employees.
(e) President. If a President is appointed or elected, he shall have such powers
and duties as shall be prescribed by the Chief Executive Officer, if one is
appointed or elected, or the Board. The President shall report to the Chief
Executive Officer.
(f) Chief Operating Officer. If any Chief Operating Officer is appointed or
elected, he shall have such powers and duties as shall be prescribed by the
Chief Executive Officer or the President, if either or both is appointed or
elected, or the Board.
(g) Chief Financial Officer. If any Chief Financial Officer is appointed or
elected, he shall perform all the powers and duties of the offices of the chief
financial officer and chief accounting officer and in general shall have overall
supervision of the financial operations of the Corporation. The Chief Financial
Officer shall also perform such other duties as the Chief Executive Officer, the
President or the Board may from time to time determine.
(h) Vice Presidents. If any Vice President or Vice Presidents are appointed or
elected, they shall have such powers and duties as shall be prescribed by the
Chief Executive Officer or the President, if either or both is appointed or
elected, or the Board. Vice Presidents for this purpose shall include Senior,
Executive, Assistant and all other categories or types of Vice Presidents.
(i) Secretary. If a Secretary is appointed or elected, he shall attend and keep
the records of all meetings of the stockholders and the Board in one or more
books kept for that purpose, shall give or cause to be given due notice of all
meetings in accordance with these By-laws and as required by law, shall notify
the several officers of the Corporation of all action taken by the Board
concerning matters relating to their duties, shall transmit to the proper
officers copies of all contracts and resolutions approved by the Board or any
committees of the Board, shall be custodian of the seal of the Corporation and
of all contracts, deeds, documents and other corporate papers, records (except
accounting records) and indicia of title to properties owned by the Corporation
as shall not be committed to the custody of another officer by the Chief
Executive Officer or the President, if either or both is appointed or elected,
or the Board, shall affix or cause to be affixed the seal of the Corporation to
instruments requiring the same when the same have been signed on behalf of the
corporation by a duly authorized officer, shall perform all duties and have all
powers incident to the office of Secretary, and shall perform such other duties
as shall be assigned to him by the Chief Executive Officer or the President, if
either or both is appointed or elected, or the Board. One or more Assistant
Secretaries may be appointed or elected, who shall perform all the duties and
have all the powers of the Secretary in the absence of or in case of a failure
to appoint or elect, or when so delegated by the Secretary, and as the Chief
Executive Officer or the President, if either or both is appointed or elected,
or the Board may direct.
(j) Treasurer. If a Treasurer is appointed or elected, he shall perform the
duties incident to the office of Treasurer and such other duties as shall be
assigned to him by the Chief Executive Officer or the President, if either or
both is appointed or elected, or the Board. One or more Assistant Treasurers may
be appointed or elected who shall perform all the duties and have all the powers
of the Treasurer in the absence of, or in the case of a failure to appoint or
elect, or when so delegated by the Treasurer, and as the Chief Executive Officer
or the President, if either or both is appointed or elected, or the Board may
direct.
(k) Controller. If a Controller is appointed or elected, he shall perform all
the duties incident to the office of Controller and such other duties as may be
assigned to him by the Chief Executive Officer or the President, if either or
both is appointed or elected, or the Board. One or more Assistant Controllers
may be appointed or elected who shall perform all the duties and have all the
powers of the Controller in the absence of, or in the case of a failure to
appoint or elect, or when so delegated by, the Controller, and as the Chief
Executive Officer or the President, if either of both is appointed or elected,
or the Board may direct.
ARTICLE VI
Waiver of Notices; Place of Meetings
SECTION 6.1. Waiver of Notices. Anything herein to the contrary notwithstanding,
whenever notice is required to be given to any director or member of a committee
or stockholder, a waiver thereof in writing, signed by the person entitled to
such notice shall be deemed equivalent to notice, whether given before or after
the time specified therein and, in the case of a waiver of notice of a meeting,
whether or not such waiver specifies the purpose of or business to be transacted
at such meeting. Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting, except where the person 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, and does so object.
SECTION 6.2. Place of Meetings. Any meeting of the stockholders, the Board or
any committee may be held within or without the State of Delaware.
ARTICLE VII
Execution and Delivery of Documents; Deposits; Proxies; Books and Records
SECTION 7.1. Execution and Delivery of Documents; Delegation. The Board shall
designate the officers, employees and agents of the Corporation who shall have
power to execute and deliver deeds, contracts, mortgages, bonds, debentures,
checks, drafts and other orders for the payment of money and other documents for
and in the name of the Corporation and may authorize such officers, employees
and agents to delegate such power (including authority to redelegate) by written
instrument to other officers, employees or agents of the Corporation. Such
delegation may be by resolution or otherwise and the authority granted shall be
general or confined to specific matters, all as the Board may determine. In the
absence of such designation referred to in the first sentence of such
designation referred to in the first sentence of this Section, the officers of
the Corporation shall have such power so referred to, to the extent incident to
the normal performance of their duties.
SECTION 7.2. Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation or otherwise as
the Board or any officer of the Corporation to whom power in that respect shall
have been delegated by the Board shall select.
SECTION 7.3. Proxies in Respect of Stock or Other Securities of Other
Corporations. Unless otherwise provided by the Board, any officer of the
Corporation shall have the authority from time to time to appoint an agent or
agents of the Corporation to exercise in the name and on behalf of the
Corporation the powers and rights which the Corporation may have as the holder
of stock or other securities in any other corporation, to vote or consent in
respect of such stock or securities and to execute or cause to be executed in
the name and on behalf of the Corporation and under its corporate seal or
otherwise, such written proxies, powers of attorney or other instruments as he
may deem necessary or proper in order that the Corporation may exercise such
powers and rights. Such officer may instruct any person or persons appointed as
aforesaid as to the manner of exercising such powers and rights.
SECTION 7.4. Books and Records. The books and records of the Corporation may be
kept at such places within or without the State of Delaware as the proper
officers of the Corporation may from time to time determine.
ARTICLE VIII
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date, etc.
SECTION 8.1. Certificates for Stock. Every holder of stock of the Corporation
shall be entitled to have a certificate certifying the number of shares owned by
him in the Corporation and designating the class of stock to which such shares
belong, which shall otherwise be in such form as the Board shall prescribe. Each
such certificate shall be signed by, or in the name of the Corporation by, the
Chairman, a Vice-Chairman, the Chief Executive Officer, the President or a Vice
President of the Corporation and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Corporation. Any of or all such
signatures may be facsimiles. In case any authorized officer who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer or authorized agent before such certificate is issued, it may
nevertheless be issued by the Corporation with the same effect as if he were
such officer or authorized agent on the date of issue. Every certificate
surrendered to the Corporation for exchange or transfer shall be canceled and a
new certificate or certificates shall not be issued in exchange for any existing
certificate until such existing certificate shall have been so canceled, except
in cases provided for in Section 8.4 of this Article.
SECTION 8.2. Stock Record. A stock record in one or more counterparts shall be
kept of the name of the person, firm or corporation owning the stock represented
by each certificate for stock of the Corporation issued, the number of shares
represented by each such certificate, the date of issue thereof and, in the case
of cancellation, the date of cancellation. The person in whose name shares of
stock stand on the stock record of the Corporation shall be deemed the owner
thereof for all purposes as regards the Corporation.
SECTION 8.3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent
the stock of the corporation shall be governed by Article 8 of Subtitle I of
Title 6 of the Delaware Code.
(b) Registration. Registration of transfers of shares 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 an officer of the Corporation, and on the surrender of the
certificate or certificates for such shares properly endorsed or accompanied by
a stock power duly executed.
SECTION 8.4. New Certificates. (a) Lost, Stolen or Destroyed Certificates.
Where a stock certificate has been lost, apparently destroyed or wrongfully
taken, the issuance of a new stock certificate or the claims based on such
certificate shall be governed by Article 8 of Subtitle I of Title 6 of the
Delaware Code.
(b) Mutilated Certificates. Where the holder of any certificate for stock of the
Corporation notifies the Corporation of the mutilation of such certificate
within a reasonable time after he has notice of it, the Corporation will issue a
new certificate for stock in exchange for such mutilated certificate theretofore
issued by it.
(c) Bond. The Board may, in its discretion, require the owner of the lost,
stolen, destroyed or mutilated certificate to give the Corporation a bond in
such sum, limited or unlimited, in such form and with such surety or sureties
sufficed to indemnify the Corporation against any claim that may be made against
it on account of the loss, theft, destruction or mutilation of any such
certificate or the issuance of any such new certificate.
SECTION 8.5. Regulations. The Board may make such rules and regulations as it
may deem expedient, concerning the issue, transfer and registration of
certificates for stock of the Corporation.
SECTION 8.6. Fixing Date for Determination of Stockholders of Record. In order
that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
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 may fix, in
advance, a record date, which shall not be more than 60 nor less than 10 days
before the date of such meeting, nor more than 60 days prior to any other
action. If no record date is fixed: (1) 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; (2) 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 is necessary, shall
be the day on which the first written consent is expressed; (3) the record date
for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board adopts the resolution relating thereto. A
determination of stockholders entitled to notice of or to vote at a meeting of
the stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE IX
Seal
SECTION 9.1. Seal. The Corporate seal shall consist of a die bearing the full
name of the Corporation in the outer circle and the legend "Corporate Seal 1991
Delaware" in the inner circle. This seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE X
Fiscal Year
SECTION 10.1 Fiscal Year. The fiscal year of the Corporation shall end on the
Saturday closest to December 31 in each year, or such other date as the Board
determines.
ARTICLE XI
Amendments
SECTION 11.1. Amendments. These By-laws may be amended, altered or repealed by
the vote of a majority of the Board, subject to the power of the holders of a
majority of the outstanding stock of the Corporation entitled to vote in respect
thereof, by their vote given at an annual meeting or at any special meeting, to
amend, alter or repeal any By-law made by the Board.
ARTICLE XII
Subject to Law
SECTION 12.1. Subject to Law. All provisions of these By-Laws are subject to
requirements of applicable law and the Certificate of Incorporation of the
Corporation.
ARTICLE XIII
Indemnification
SECTION 13.1. Power to Indemnify in Actions, Suits or Proceedings Other Than
Those by or in the Right of the Corporation. Subject to Section 13.3 of this
Article XIII, the Corporation shall indemnify and hold harmless, to the fullest
extent permitted by applicable law, any person who is or was a party or is
threatened to be made a 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 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, employee benefit plan or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he 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. 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
reasonably believed to be in or not opposed to the best interests of the
Corporation, or with respect to any criminal action or proceeding, that such
person had reasonable cause to believe that his conduct was unlawful.
SECTION 13.2. Power to Indemnify in Actions, Suits or Proceedings by or in the
Right of the Corporation. Subject to Section 13.3 of this Article XIII, the
Corporation shall indemnify and hold harmless, to the fullest extent permitted
by applicable law, any person who is or was 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 produce a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation; 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 or the court in which
such action or suite was brought shall determine upon application that, despite
the adjudication of liability, 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.
SECTION 13.3. Authorization of Indemnification. Any indemnification under this
Article XIII (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, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in Section 13.1 or
Section 13.2 of this Article XIII, as the case may be. Such determination shall
be made (i) by the Board by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, or, even if it is obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders. To the extent, however, that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding described above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case.
SECTION 13.4. Good Faith Defined. For purposes of any determination under
Section 13.3 of this Article XIII, a person shall be deemed to have acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the Corporation or
another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or
the expert selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in this Section 13.4 shall
mean any other corporation or any partnership, joint venture, trust, employee
benefit plan or other enterprise of which such person is or was serving at the
request of the Corporation as a director, officer, employee or agent. The
provisions of this Section 13.4 shall not be deemed to be exclusive or to limit
in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Sections 13.1 or 13.2 of this
Article XIII, as the case may be.
SECTION 13.5 Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 13.3 of this Article XIII, and
notwithstanding the absence of any determination thereunder, any director,
officer, employee or agent may apply to any court of competent jurisdiction in
the State of Delaware for indemnification to the extent otherwise permissible
under Sections 13.1 and 13.2 of this Article XIII. The basis of such
indemnification by a court shall be a determination by such court that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standards of conduct set forth
in Sections 13.1 or 13.2 of this Article XIII, as the case may be. Neither a
contrary determination in the specific case under Section 13.3 of this Article
XIII nor the absence of any determination thereunder shall be a defense to such
application or create a presumption that the director, officer, employee or
agent seeking indemnification has not met any applicable standard of conduct.
Notice of any application for indemnification pursuant to this Section 13.5
shall be given to the Corporation promptly upon the filing of such application.
If successful, in whole or in part, the director, officer, employee or agent
seeking indemnification shall also be entitled to be paid the expenses of
prosecuting such application.
SECTION 13.6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending 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, officer, employee or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article XIII.
SECTION 13.7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to
this Article XIII shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any By-Law, agreement, contract, vote of stockholders or disinterested directors
or pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in their official capacity and as
to action in another capacity while holding such office, it being the policy of
the Corporation that indemnification of the persons specified in Sections 13.1
and 13.2 of this Article XIII shall be made to the fullest extent permitted by
law. The provisions of this Article XIII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 13.1 or 13.2 of
this Article XIII but whom the Corporation has the power or obligation to
indemnify under the provisions of the Delaware General Corporation Law, or
otherwise.
SECTION 13.8. Insurance. The Corporation may 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, employee benefit plan or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the Delaware General
Corporation Law or the provisions of this Article XIII.
SECTION 13.9. Certain Definitions. For purposes of this Article XIII references
to "the Corporation" shall 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, 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, employee
benefit plan or other enterprise, shall stand in the same position under the
provisions of this Article XIII with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued. For purposes of his Article XIII, 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 involved services by, such
director, officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article XIII.
SECTION 13.10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article XIII 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.
SECTION 13.11. Limitation on Indemnification. Notwithstanding anything contained
in this Article XIII to the contrary, except for proceedings to enforce rights
to indemnification (which shall be governed by Section 13.5 hereof), the
Corporation shall not be obligated to indemnify any director, officer, employee
or agent in connection with a proceeding (or part thereof) initiated by such
person unless such proceeding (or part thereof) initiated by such person unless
such proceeding (or part thereof) was authorized or consented to by the Board.
ARTICLE XIV
Interested Directors
SECTION 14.1. Interested Directors; Quorum. 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 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 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
thereon, 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, a committee thereof, or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board
or of a committee which authorizes the contract or transaction.